Under Freedom of Information legislation, public sector workers must hand over private communications to their employer if the messages contain any information relating to official business.
The Information Commissioner’s Office has published six-pages worth of guidance in order to clarify that FoI laws cover any pertinent business data “recorded in any form” ranging from email to text messaging.
The Commissioner Christopher Graham said that, following a good practice visit to the Department of Education in September, it had come to light that the area was a “somewhat misunderstood aspect of the law”, which meant that further clarification was necessary.
He added: “Clearly, the need to search private email accounts should be a rare occurrence. Therefore, we do not expect this advice to increase the burden on public authorities.”
But the new guidance covers more than simply email communications. Instead section 84 of the FoI defines data as “information recorded in any form. “Therefore, official information recorded on mobile devices, including text messages on mobile phones, or in any other media may also be considered to be held on behalf of the public authority in the circumstances outlined in this guidance,” it said.
While this did not necessarily mean that the information would have to be disclosed in all cases, “on receipt of a valid FOIA request, public authorities should consider all locations where the requested information may be found”, the document added.
As a result, if an organisation believed that an individual’s private email account or other communications mechanism could include information that falls within the scope of an FoI request, it was obliged to ask them to search their accounts.
All such activity had to be recorded, however, and public authorities must be able to demonstrate that the relevant searches have been made. They were also obliged to remind staff that deleting or concealing information in order to try and prevent its disclosure was a criminal offence under section 77 of the FoI Act.
Because of the potential need for staff to occasionally use private email for public authority business, however, HR departments likewise had a responsibility to devise clear policies stating that, when such a situation occurred, workers should always copy the message in to the organisation’s email address to ensure that its records were as complete as possible.
