Posted: Friday 16 December 2011
MPs - they just keep feeding my blog
by Austin Flynn
It’s funny how the material for a blog sometimes just comes to you out of the blue. When I was asked to write a blog, I agreed to do it weekly. With one exception (the week commencing 5 December) I have so far been as good as my word. However, one of yesterday’s news headlines gave me the perfect opportunity to make amends for the missed week by blogging twice this week: “Gove warned private emails covered by information laws.” Having already been given high quality blog material by Mr Gove’s coalition colleagues (Vince Cable and the unfortunate Oliver Letwin) Mr Gove’s foray into the world of information law seemed too good to be true; and so it is.
Now, by way of a legal disclaimer, and to avoid the possibility of a defamation action against me, I have to say that there does appear to be some confusion over the facts here, and it is entirely possible that neither Mr Gove nor his department (the Department for Education or "DfE") has done anything wrong. However there have been suggestions that some members of the DfE were using private e-mail addresses to try and put information beyond the reach of the Freedom of Information Act ("FoIA"). Briefly, the FoIA effectively creates a right of public access to certain information held by public bodies. There are some limited exceptions (e.g. where national security may be compromised) but there is no doubt that the FoIA is far-reaching and something that certain public bodies could on occasion well do without: it involves them devoting resources to handling FoIA requests from the public and probably sometimes being obliged to release information that they would rather didn’t see the light of day. My guess would be that the FoIA is used most often by members of the public wanting to know relatively mundane things, like how often a particular politician had his taxis paid for from the public purse, or what a planning committee said about the next door neighbour’s new conservatory, but there is no doubt that it can be used to uncover much juicier pieces of information.
If the speculation is correct and DfE staff have been using private e-mail addresses to discuss juicy matters that they would not want to see the light of day, that would be newsworthy. One of Mr Gove’s advisers has apparently indicated to staff that they should e-mail him on his private e-mail account if they wish to communicate with him, although the DfE has defended its position by saying that the e-mails that went to personal accounts all related to (private) Conservative Party business as opposed to (public) government business. At this stage you, like me, are probably losing the will to live as the spin doctors trade blows over who did what, to whom, when and in what circumstances. On the bright side it seems as though the Information Commissioner became equally exasperated and decided to issue some guidance to put the matter beyond doubt:
- Public sector staff may be asked to search their private e-mail accounts if they use those accounts for correspondence about government business;
- Because of the difficulty of searching private accounts and in order to ensure the completeness of the public record, the use of private e-mail accounts by civil servants should be actively discouraged;
- Checks may be carried out across the DfE, including within private offices, to ensure that policies procedures and guidance on the FoIA are being followed in practice; and
- It has always been the case that information held in private e-mail accounts can be subject to the FoIA if it relates to official business.
Putting aside the rights (and possibly the wrongs) of who did what in the sorry DfE saga, it seems increasingly clear that the Information Commissioner will be robust (to say the least) in his policing of matters within his bailiwick. You have been warned.
The cynic in me might also comment on the fact that the very politicians who enact legislation such as the FoIA and the Data Protection Act seem to struggle when it comes to compliance with the very same legislation.
