I am beginning to think that there has been a systematic attempt by all Conservative Ministers to evade the obligations of the Freedom of Information Act (FOIA) by using personal emails and texts to discuss policy matters. At yesterday’s Leveson Inquiry, a second Cabinet Minister (Jeremy Hunt), admitted that he ONLY uses personal emails to discuss policy matters with his special advisors.
It is well known that the Education Secretary, Michael Gove, is challenging a ruling by the Information Commissioner (ICO) that information in a private email account relating to departmental business is subject to FOIA. Last year, the Financial Times reported that Mr. Gove had used an undisclosed private email account belonging to a "Mrs Blurt" to discuss government business with his special adviser (“Mr Blurt” one assumes).
The brevity of the relevant Decision Notice in the Gove case (see references) is such that the ICO considers it axiomatic that any information relating to public policy, if recorded in the private emails of a public authority employee, is still information subject to FOIA.
To arrive at his position, other Decision Notices relating to private email accounts show that the ICO asks questions such as:
• Does the email entirely relate to a private matter?
• Does the email relate to work issues connected to the public authority who has received the FOI request?
• Does the email reflect positively on, or enhance the status of, that public authority?
• Does that public authority use the email content in connection with its own functions?
If the ICO is satisfied that an email relates a private matter (i.e. it is outside the scope of the public role of the employee who "holds" the email), then he will form the view that the public authority has no interest in, or control over, the requested information. It follows that the private email is not held by a public authority and is outside the scope of FOIA.
The counter argument to this, proposed by Mr Gove, relates to whether or not a private email is “held” by a public authority; if it is a private email then it is "private" - full stop - nothing else to consider. That is why the DfE has not responded to the FOI request or justified its refusal to disclose the information.
To do this would be to acknowledge the fact that information in private email account of Ministers (e.g. about policy matters) would be indeed “held” by a public authority- and, this of course, is what legal issue before the Tribunal is all about.
That is why a DfE spokesman told the Guardian Newspaper that: "...The department does not accept the grounds on which the Commissioner has come to his conclusion. We believe that these are important issues which it is appropriate for the tribunal to consider".
Now to the accusation that a second Cabinet Minister (Mr Hunt) uses personal email accounts to discuss policy (which therefore theoretically “evades” the reach of FOIA). This is self evident from the transcript of the Leveson Inquiry reproduced below.
The context is a cross examination into email contacts between the Minister, his special advisor and News International in connection with the BSkyB bid (a matter of public interest dealing with public policy – in the same way as Mr Gove’s emails discussed education policy). The relevant part of the Transcript of Mr Hunt’s evidence goes as follows (my emphasis below):
Q. We know from other material that it went to your personal email account. Is anything to be inferred from that?
A. No, that is the only email account I use.
Q. So you don't have an email account within the department; is that correct?
A. No, my departmental email gets looked after by my private office, and if there's anything they need to show me from that, they show me, but the only email account that I use is my personal one.
Q. So most of the contact we have, perhaps all of it, from Mr Smith by email is obviously to your personal email account; is that the correct position?
A. That's correct.
Now, remember those texts between Messrs Hunt and Osborne on their mobiles? Such personal texting between personal mobiles could easily be another mechanism so that communications between Ministers evade FOIA consequences. Put simply; whereas an official email would be caught by FOIA, a private text to a private mobile is not (so the Gove theory goes).
The conclusions I have reached on this issue are as follow:
• the fact that a second Cabinet Minister has followed the “Gove personal email approach” implies that the Government’s review of FOIA will result in an attempt to widen the FOI exemption with respect to requests involving policy matters (The reason is that the personal emailing is a ruse intended to avoid FOIA as currently constituted; it could now fail at the Tribunal – a likely prospect in my view);
• many Ministers have been given formal advice, perhaps before the last General Election, that relates to the use of personal email accounts and FOIA (I do not believe that Mr Gove discovered this personal email argument by himself);
• all Conservative Ministers - not necessarily Cabinet Ministers - are/have been communicating to special advisors on public policy matters by private email accounts (see the “only”s as used by Mr Hunt in the above transcript); and
• there is a huge legal battle in the offing over this issue if the Government do not widen the FOIA exemptions re policy matters (see blog re Jack Straw’s evidence).
Happy Jubilee weekend.
Where the Government want extend FOIA exemptions: (see “Desire for a FOI charging regime equates to reduced accountability of public bodies” on https://amberhawk.typepad.com/amberhawk/2012/05/desire-for-a-foi-charging-regime-equates-to-reduced-accountability-of-public-bodies.html
Leveson Inquiry and Mr Hunt’s evidence (see 31st May, morning session; pages 14/15) https://www.levesoninquiry.org.uk/hearing/2012-05-31am/
The “Gove” Decision Notice (Google “FS50436308”) and an example of a Decision Notice relating to Private emails (Google “FS50409217”)
Background Guardian Article to the Gove email and appeal: https://www.guardian.co.uk/politics/2012/mar/29/michael-gove-appeal-against-email-ruling