[reposted from LinkedIn]
An important Information Tribunal (T) judgment on a FOIA request, by Times journalist George Greenwood, to DHSC for gov-related correspondence between Matt Hancock (MH) and Gina Coladangelo (GC), grappling with issues regarding modern messaging methods in government and how they fit into the FOIA scheme.
Two requests were made. The first was for government-related correspondence between MH and GC using departmental email accounts, and any private email account MH had used for government business. The second was for all correspondence between them using other methods, such as WhatsApp.
Request 1
DHSC had found four emails and by the time of the hearing had disclosed them. It maintained that no further info was held.
However DHSC argued that emails sent by MH’s private secretaries and not by MH himself were out of scope. Not so, said the T: “even if a private office email account is operated by a private secretary…correspondence with a private office email account ought to be regarded as correspondence with the relevant minister”. Accordingly, they upheld that part of the appeal and ordered further searches.
Request 2
DHSC had initially said, and ICO had agreed(!), that government-related WhatsApp messages sent from MH’s personal device were not “held” for the purposes of FOIA because they were not held “as part of the official record”. By the time of the hearing, all of the parties were agreed that this was an error, and the T ruled that section 3(2)(b) FOIA applied, and that “WhatsApp messages from Mr Hancock’s personal device were held [by MH] on a computer system on [DHSC’s] behalf”.
DHSC then sought to argue that WhatsApp messages in a group were not “correspondence” between MH and GC, saying (in the T’s formulation of DHSC’s argument) “unless correspondence consists of one person corresponding directly with another, it is not ‘true’ correspondence”. The T was dismissive of this: “correspondence in the age of multiple methods of electronic communication can take different forms…the fact that simply because one or other of the relevant parties did not respond or may not have responded to a particular message does not mean that communications within a WhatsApp group cannot be considered to be correspondence”. The T also rejected the related submission that a person posting a message to a WhatsApp group is “broadcasting”, rather than “corresponding”
(I have to say that I think the T probably overstepped here. I would tend to think that whether information in a WhatsApp group is correspondence or not should be determined on the facts, and not as a matter of general principle.)
Finally, the T did not warm to the evidence from an otherwise unidentified “Mr Harris” for the DHSC, to the effect that the request was vexatious on grounds of the burden. They therefore held that it was not. (As the messages were subsequently disclosed into the public domain during the Covid inquiry, not much turns on this.)
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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