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.

Start Quote

Michael Gove

Anything held on private email accounts was not subject to freedom of information requests”

End Quote Michael Gove to a select committee

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.

 
Martin Rosenbaum, Freedom of information specialist Article written by Martin Rosenbaum Martin Rosenbaum Freedom of information specialist

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  • rate this
    +9

    Comment number 1.

    When did this country switch from a democracy where MP's were servants of the general public and acted as their spokespersons to becoming a dictatorship where MP's allow us only to know what they want to tell us.

  • rate this
    +1

    Comment number 2.

    http://www.bbc.co.uk/foi/publication_scheme/excluded.shtml

    Well done BBC hypocrites - BBC largely exempt from providing equivalent information under FOIA - True to form!

  • rate this
    +6

    Comment number 3.

    Disgraceful behaviour by Gove and his Department. This is the Government that is meant to be committed to transparency. Highly undemocratic behaviour. I'm sure that Gove and co will have deleted the private emails long ago in any case. Maybe anonymous will dig them up (not that I am advocating that of course). Nothing stays secret forever.

  • rate this
    +6

    Comment number 4.

    Unfortunately Bollus if you think you live in a democracy the you have been well and truly brainwashed. The only democratic process is putting an X in a box when THEY say we can. It is the wealthy lobbyists which rule this country we count for nothing.

  • rate this
    +4

    Comment number 5.

    I thought this had been resolved: Messages private email accounts, text messages & other messaging systems can be disclosed under freedom of information (FOI) laws if they relate to public business. (Decision FOI Regulator,15 Dec 2011) ICO published new guidance making it clear that FOI laws cover relevant information even when stored or sent on private accounts or devices.

  • rate this
    +3

    Comment number 6.

    ICO, Christopher Graham said it shouldn't come as surprise to public authorities to have clarification that information held in private email accounts CAN be subject to Freedom of Information law if it relates to official business. He emphasized this had always been the case: Act covers all recorded information in any form.

  • rate this
    0

    Comment number 7.

    6.BluesBerry
    ICO, Christopher Graham said it shouldn't come as surprise to public authorities to have clarification that information held in private email accounts CAN be subject to Freedom of Information law
    ++
    Unless ... as per exemption for the BBC?

  • rate this
    +5

    Comment number 8.

    To use private emails to hold official public business makes them no longer private.

    All communication of a Minister should be recorded. Whether it is a meeting with a lobbyist or a private email.

    However, doesn't means it should all go into the public domain. Investigation into improper behaviour could be allowed with non-disclosure agreement.

  • rate this
    +6

    Comment number 9.

    It is truly worrysome that politicians are acting clandestinely particularly when it affects something as important as education policy. Privatisation of another service in secret?

  • rate this
    +7

    Comment number 10.

    9 Paul
    "Privatisation of another service in secret?"

    I didn't think it was a secret. Gove is known to bully people when he gets out of his depth.

    He has managed to take more power than any previous education minister but criticises people for not knowing:
    "Newton's Law of Thermodynamics"

    A man who is deciding History is more important than Engineering is not fit for office.

  • rate this
    +7

    Comment number 11.

    Gove is trying to set himself up as a gung ho tory. Sometimes it seems he tries to outdo Boris. However this attempt to cheat the people of our rights to FOI goes deeper in the cabinet office to hide all of the dirty deals being done between government, business and the lobbyists, slowing down information flow allows things to be put into being without proper review, time to rise up methinks.

  • rate this
    +5

    Comment number 12.

    I don't understand the detail of FOI but it seems to me that a minister who uses private email for official business because he thinks he will not have to make the information public is a very dodgy character,

  • rate this
    +8

    Comment number 13.

    Why dear BBC is this important article so obscure - it shpould be on the front page where it gets exposure!

  • rate this
    +6

    Comment number 14.

    10.Gort2012

    Shallow Gove has never been within his depth - unfortunately that applies to all politicians.

    We have this brainwashed mentality that states that if you come from a wealthy background you must know more about whats needed for running the country than the rest of us however many times its disproved.

  • rate this
    +4

    Comment number 15.

    I agree Paul - why is this not getting more attention? One wouldn't expect it of the Tory press, but the BBC?

  • rate this
    -6

    Comment number 16.

    Martin - perhaps the DoE is too busy educating our kids to indudge your whims, just so you can justify your non-job at the BBC.

    No one outside of the BBC or politics cares about this issue. They just want their kids to get a decent education.

    This is typical of the waste of money under Labour. Lots of paper pushing that doesn't help improve the key service one bit.

  • rate this
    +3

    Comment number 17.

    My children, like many accross the country, have greatly benefitted from the improvements to state education over the past decade. I dread to think what will be left after the present 'splintering' of the system with privatisation drives and the commissioning of private companies based in other countries to provide services to the new 'free' schools.

  • rate this
    +4

    Comment number 18.

    Present UK Government wholeheartldy dislikes anything with FOi....They don't want the public to know the real truth, I'm surprised they have not slapped this Foi request with an against national interests cunning ploy!

  • rate this
    0

    Comment number 19.

    This article has been up all day and only 18 people have posted to it.

    Everyone else is just not bothered about this nonsense (if ministers want to keep things private they will just phone or text each other instead).

    Back in the real world, we want taxpayer money to be spent on schools rather than this sort of nonsense, which shows why we are £ trillions in debt with little to show for it.

 

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