Watchdog orders DfE to disclose Gove email details or serve valid refusal notice
The Information Commissioner has ordered the Department for Education to disclose details of an email sent from a private email account by the Education Secretary unless it can issue a valid refusal notice.
The complainant made a request under the Freedom of Information Act 2000 to the Department in 2011 for details of an email sent by Michael Gove to one of his special advisers.
The DfE responded by saying a search of its electronic records had established that it did not hold the requested information. It upheld this decision at an internal review.
The complainant turned to the Commissioner for a review of the Department’s handling of the request, providing the watchdog with a copy of an email sent from a private email account. He argued that the details of the email would fall within the request.
The DfE told the Commissioner that it was not aware of the email at the time of the request and that it only became aware of its existence after the email was referred to in a press article. The Department added that it only became aware of the email’s full contents when it was provided with a copy by the Commissioner.
The DfE also revealed to the ICO that it had not searched any private email accounts when it received the request and that only the Secretary of State’s official account was searched.
It pointed out that the request was for information from Gove’s accounts excluding emails sent on his behalf by a private secretary and this explained why no further email accounts were searched.
The ICO accepted that at this point the Department was following Cabinet Office advice to the effect that government departments did not have the authority to search the private email accounts of members of staff.
The Commissioner’s guidance on the issue of information held by public authorities on private email accounts was not published until December 2011. “The Commissioner acknowledges that the full implications of FOIA in relation to this issue may not have been well understood at that time,” the ICO said in its decision notice.
The ICO guidance suggests that an appropriate test to decide if information on a private email account was held by a public authority was whether the information “amounts to” public authority business, or whether information was “generated in the course of conducting the business of the public authority”.
The Department claimed that the email was not held for the purposes of FOIA, arguing that it was political rather than governmental. In the DfE’s view the email was a political discussion rather than something generated in the course of conducting the business of the department.
The email was sent by the Secretary of State in his political capacity to his political advisers and colleagues, it suggested.
The Information Commissioner agreed that the case raised a novel issue “and one which may not have been anticipated when the Freedom of Information Act was passed”.
The decision notice added: “Given the unique role played by special advisers it is not always easy to draw a clear line between official information held by a public authority and party political information.”
The Commissioner pointed out that almost all of the work of a special adviser had a political dimension, and that the Secretary of State was also a political figure.
“There is therefore an inevitable overlap between matters of party policy and government policy,” the decision notice said. “To accept the DfE’s interpretation would be to, in effect, create a blanket exemption for communications between ministers and special advisers.
“In the Commissioner’s view the DfE has created an artificial distinction between ‘official’ information which is subject to the Act and ‘political’ information which is not.”
The Information Commissioner pointed out that the Act made no distinction between political and non-political information. However, he considered the nature of the disputed information to be a highly relevant factor when deciding whether the information was held for the purposes of the Act.
The Commissioner said the correct approach was to consider the purpose of the email and whether the majority of the contents of the email amounted to the business of the department.
After reviewing its contents and considering the identities of the sender and the recipients (the special adviser and a civil servant), he concluded that the majority of the contents of the email amounted to the business of the department and that therefore the requested information was held for the purposes of the Act.
The factors taken into account in reaching that decision included:
- Permanent civil servants are required to be politically impartial and the fact that the email was sent to a civil servant would appear to be very relevant;
- The DfE claimed the email was sent to the civil servant in error. The Commissioner said he was not in a position to dispute this, but noted that the email was sent to the civil servant’s private rather than official email account. “The Commissioner considers this to be particularly relevant given the allegation that the Secretary of State and special advisers were in the habit of using private email accounts to conduct official department business”;
- Special advisers are prohibited under their code of conduct from briefing the media on purely party political matters, which must be handled by the party machine. But no Conservative Party officials were recipients of the email;
- In the Commissioner’s view the email could be characterised as a significant step in the development of a government communications strategy. The email was essentially an action plan and a list of key events or issues in the work of the department for the month of January 2011. Its focus was about publicising the DfE’s work and amounted to the promotion of government policy;
- This view was supported by the fact that much of what was discussed in the email subsequently resulted in official departmental announcements;
- Some sections of the email were “clearly not party political, or indeed in any sense political, but instead are routine questions of civil servants; asking for further details on the progress of departmental policy”. The Commissioner could not see how this information “could be seen as anything other than government business”;
- The Commissioner was inclined to agree with the complainant’s view that if the email had been retrieved from an official, government email account, then its details would be considered to be in the scope of his request.
By failing to disclose details of the email, the DfE had breached s.1 of the Act, the Information Commissioner concluded.
The watchdog said the complainant already had the requested information, but not as a result of official disclosure by the DfE.
It ordered the Department to either disclose to the complainant the information falling within the scope of his request or issue a valid refusal notice in accordance with s. 17 of the Freedom of Information Act 2000.
