If the Ministry of Justice really can’t search the text of emails for information, how can it comply with the FOI Code of Practice on Records Management?
In performing his functions under the Freedom of Information Act 2000 (FOIA) the Information Commissioner (IC) must promote the observance by public authorities of codes of practice issued under section 45 and section 46 of FOIA. Section 46 provides for a code of practice to be issued by the Lord Chancellor as to desirable practice for public authorities for the keeping, management and destruction of their records. A code was duly issued by the then Lord Chancellor Lord Irvine in 2002.
So, when deciding whether, for instance, a public authority has complied with its obligations under part 1 of FOIA (i.e. has it properly responded to a request for information?) the IC should, I submit, take into account where necessary whether the authority is complying with the Records Management Code.
With this in mind, consider the Ministry of Justice’s (MoJ) reported response to an FOI request for any mentions on its systems of the Howard League for Penal Reform. As Ian Dunt reports, the MoJ said that
On this occasion, the cost of determining whether we hold the information would exceed the limit set by the Freedom of Information Act
I have seen the MoJ response in question, and I accept that it is legitimate for a public authority to refuse to disclose information if the costs of determining whether it is held exceeds the limit prescribed by regulations (although authorities have an obligation under section 16 FOIA to advise and assist applicants as to how they might reframe their request to fall within the cost limits, and the MoJ have failed to do this). However, while the response refers to a necessity to search paper records, it also says
A manual search is required as central search functions (for example, those on email systems) would not identify all correspondence – for example, if the Howard League for Penal Reform was mentioned in the body of the text
This appears to suggest, as Ian says, that “they can only search electronically for the headline of an email, not the body of a message”
If this is true (which seems extraordinary, but one is sure it must be, because intentionally to conceal information which otherwise should be disclosed under FOIA is an offence) it would appear to be contrary to the desirable practice in the Records Management Code, which says that
Records systems should be designed to meet the authority’s operational needs and using them should be an integral part of business operations and processes. Records systems should…enable quick and easy retrieval of information. With digital systems this should include the capacity to search for information requested under [FOIA]
It would be most interesting if the Howard League were to refer this to the IC for a decision. The IC rarely these days mentions the Records Management Code, but as the Code itself says
Records and information are the lifeblood of any organisation. They are the basis on which decisions are made, services provide and policies developed and communicate
Not only does poor records management affect compliance with FOIA (and other legal obligations), but it is not conducive to the reduction of back-office costs, developing new ways of working, and driving economies of scale (all things, of course, which the current Lord Chancellor prays in aid of his potentially devastating changes to legal aid provision).
p.s. As @Unity_MoT points out on twitter, if the MoJ struggles to search its systems to respond to FOIA requests, how does it undertake searches for responding to subject access requests under section 7 of the Data Protection Act 1998? See e.g. page 17 of the IC Code of Practice on Subject Access:
Not only should your systems have the technical capability to search for the information necessary to respond to a SAR, but they should also operate by reference to effective records management policies
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