When ARE emails subject to FOIA?

Information held in private email accounts can be subject to the Freedom of Information Act 2000. Conversely, information held in the email accounts of the public authority can, in some circumstances, not be subject to FOIA. A recent decision by the Information Commissioner (ICO) confirms this.

There has been much recent discussion and argument about the extent to which information contained in “private” email accounts (such as “gmail”, “hotmail” etc) can be said to be “held on behalf of” a public authority under FOIA. The ICO issued guidance in December 2011 that says in unequivocal terms

 FOIA applies to official information held in private email accounts (and other media formats) when held on behalf of the public authority.

No one sensible who knows anything about FOIA is likely to disagree with this.

In a Decision Notice against the Department for Education (DfE), issued after this guidance was published, the ICO applied these principles to a request for information made by the Financial Times’ Christopher Cook. Cook, in an interesting twist, already had leaked “private” emails in his possession, and was seeking information corroborating certain details about them. He showed one of these emails to the ICO, whose subsequent Decision Notice said

 The Commissioner has reviewed this email and found that whilst it was sent from a private email account it was held on behalf of the DfE for the purposes of the Act. By failing to disclose details of the email the DfE breached section 1 of the Act

(It is understood that the DfE is going to appeal this Decision Notice to the Information Tribunal.)

What has been overlooked, to a certain extent, in all this is the corollary of the proposition that “FOIA applies to official information held in private email accounts (and other media formats) when held on behalf of the public authority” which is, that FOIA does not apply to private information held in public authority email accounts, when it is not held on behalf of that authority.

Thus, for example, an email from a employee, or an elected member, of a public authority asking her partner to feed the cat this evening, is highly unlikely to be considered to be information “held” by the public authority for the purposes of FOIA. This is because section 3(2)(a) of FOIA says

information is held by a public authority if…it is held by the authority, otherwise than on behalf of another person

Private information might physically be stored on the email servers of the public authority, but for the purposes of FOIA it is being “held on behalf of” the employee (for our purposes here we don’t need to consider whether the terms of employment actually allow the employee to use the employer’s systems to engage in private correspondence).

In a Decision Notice published on 27 March the ICO has affirmed this position. A complainant had sought copies of emails received or sent by a councillor at Camden Council, on his “camden.gov.uk” address. The complainant argued

…that use of a camden.gov.uk email address for correspondence explicitly renders any correspondence on that email account part of the business of the council

The ICO rejected this submission:

 the Commissioner observes that none of these emails are about council business but instead relate either to correspondence between the councillor and constituents in his role as a ward councillor, or to personal matters of the councillor, or business which is external to his council activities… Because this information is not council business, it cannot be argued to be held by the councillor on behalf of the council. It may instead be considered to be held by the council, on behalf of the councillor as an individual, solely by virtue of being hosted on the council’s email systems.

Those previously concerned about the implications of the ICO’s guidance on private emails might take some reassurance from this statement about the limits of FOIA. However, there may also be a lesson for public authorities themselves: it is not safe always to assume that an email sent from or received by an employee’s work email account is subject to FOIA.