Back in December 2011 I wrote a blog about a suggestion that Michael Gove and some of his colleagues in the Department for Education had been using personal email addresses to try and put information beyond the reach of the FoIA. Then in March 2012, the UK Information Commissioner's Office (ICO) said that Mr Gove's messages did deal with departmental business and therefore should be covered by the FoIA.
Here we are in 2015 and a similar story is evolving on the other side of the Atlantic: Hillary Clinton's use of a personal email address for exchanging official and classified information is causing uproar because of (a) the sensitive and embarrassing nature of the information; and (b) questions over the availability and preservation of the emails for the purposes of the American version of the FoIA. However, Mrs Clinton has now been ordered to hand over large quantities of 'personal' email correspondence which the US State Department is releasing under US FoIA rules. As a result we now know that she and her advisers consider certain UK politicians to be 'snobbish', evil' and 'disingenuous'. Harsh words indeed, but great for selling newspapers (if not enhancing your chances of becoming US President).
This blog isn't intended to be a legal analysis of either the US or the UK versions of the FoIA (or Scotland's own Freedom of Information (Scotland) Act 2002.) Instead I'm trying to draw some lessons from the Gove/Clinton experiences. I can probably do no better than to look at the unequivocal guidance that the UK ICO issued after the Gove incident:
- UK 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 UK civil servants should be actively discouraged;
- checks may be carried out across UK government departments, 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 in the UK that information held in private e-mail accounts can be subject to the FoIA if it relates to official business.
As one commentator pointed out at the time, the ICO's clear guidance closed a potential loophole which would otherwise have allowed government business to be switched to Hotmail accounts to avoid compliance with the FoIA. Clearly the UK ICO guidance isn’t binding in the US, but perhaps unsurprisingly, the US seems to be taking a very similar line.