9 February 2012 Last updated at 06:04 ET

Article written by Martin Rosenbaum Freedom of information specialist

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Government delays answering on private email and FOI

 

The Department for Education is more than three months late in responding to a BBC freedom of information request about internal government guidance on the use of personal email accounts.

This is a controversial topic given recent allegations about ministers and political advisers using private email to seek to avoid FOI. These claims are currently under investigation by the Information Commissioner.

The department has apologised for missing the legal deadline by so long, stating that the delay is because the DfE "is experiencing a higher than usual volume of FOI requests".

Under the Freedom of Information Act, this is not a valid reason for failing to meet the law's time limits, and it is unusual for a government department well aware of this to respond in this way.

The DfE's information rights adviser Andrew Partridge has told the BBC in an email:

"I very much regret the delay that you are experiencing in relation to your FOI request which we received on 3 October and which should have been answered by 31 October.

"At the moment the Department is experiencing a higher than usual volume of FOI requests, and this is leading to delay in some cases. But I fully accept that the Department has failed to meet the statutory deadline in this case. I can only apologise for the delay, and assure you, as the officer responsible for preparing the reply to your request that I am working to take it forward as quickly as possible."

In October the BBC asked the department for any guidance it held about the use of personal email accounts in relation to freedom of information.

Home email

This followed reports that the Education Secretary Michael Gove and his advisers had used their private email rather than departmental systems for some sensitive messages on the basis that this would fall outside the FOI Act.

Last week Mr Gove insisted to the House of Commons Education Select Committee that he has followed Cabinet Office advice that "anything that was held on private email accounts was not subject to freedom of information requests".

However this stance conflicts with the policy of the information commissioner Chris Graham, who in December made clear his view that personal email accounts are not excluded from freedom of information searches when they have been used for official business.

The Information Commissioner's Office is still considering a number of complaints, including from the Financial Times, about the Education Department's apparent failure when responding to FOI requests to supply relevant emails sent from personal accounts.

The position adopted by Mr Gove and the Cabinet Office also contrasts starkly with an earlier assessment made by the DfE's own information rights adviser, Mr Partridge (the author of the recent reply to the BBC).

It has been reported that last year Mr Partridge told the department's permanent secretary that the requesters' right of access to material under FOI was not limited to the contents of the departmental email system if "information held in personal accounts may relate to the business of the department".

Mr Gove made it clear to the MPs on the education select committee that he preferred to abide by the advice the DfE had then obtained from the Cabinet Office rather than that from his own departmental FOI official.

FOI guidance

The BBC also asked the Cabinet Office in October for a copy of any guidance it held on the subject of personal email accounts and FOI. The Cabinet Office replied last month stating that it does not hold any such information.

Is this compatible with the fact that it has clearly offered advice on this topic to the Department for Education? Possibly, if for some reason the advice was kept purely oral and not committed to writing. The BBC is asking the Cabinet Office to review its FOI response.

When the Labour MP and education select committee member Lisa Nandy put down a parliamentary question a few days ago asking for a copy of the advice, she got the reply that "information relating to internal discussion and advice is not normally disclosed".

Mr Gove says he is now waiting for the Cabinet Office to provide updated guidance. The Financial Times is waiting for the information commissioner to rule on its complaints. The BBC is waiting for the Department for Education to answer our FOI request.

When all this happens, the development of the government's policy on whether ministers and officials can use private email to protect messages they want to keep secret may become clearer. Meanwhile, the wait continues.