UK ICO guidance on private email accounts

The UK Information Commissioner's Office (ICO) has just issued a guidance note related to whether official business communicated via private or non-governmental channels (such as via gmail, or SMS texts) can be considered 'held' on behalf of the the authority for the purposes of FOI.

Unsurprisingly (given past hints), the ICO has stated clearly that any communication that is related to 'official business' wherever it is stored (and on whatever medium) is FOI-able. Public authorities will now be requested to ask relevant people to search, and to document that search, their personal email accounts where relevant to any specific FOI request.

It is worth noting that this guidance goes considerably beyond equivalent US legislation where 'information held' is defined more strictly as being information that the agency has access to and control over - neither of which apply to gmail accounts.

However, while this makes sense in light of the UK law as written, it is likely to be problematic for a number of reasons. By its very nature, private email accounts will, in general, contain a much higher proportion of non-official correspondence, and inevitably, in a more informal style. There is no way to prove ahead of time that no official business was conducted via the personal account of any authority employee (any simple claim of this is likely to be appealed, and on past form the ICO will grant that appeal since no evidence can exist that demonstrates the negative in a comprehensive way short of an actual search of the account).

Thus for many FOI requests of a general nature (which are quite common in the US), such as requests for correspondence using specific terms or referring to a specific website or person, it will automatically require that all personal accounts will need to be searched. The ICO thinks this will be 'rare' but it practice it is likely to become far more common than he anticipates, even mundane. Given the search which, depending on the phrasing of the request, might lead to a huge amount of results, determination will need to be made as to whether each and every individual email counts as being 'official'. Who will determine this? If it is to be the authority FOI official, the privacy of the individual concerned will clearly be compromised - what if some of the potential responsive email expresses dissatisfaction with the job, and a desire to apply for something new? Or reveals an affair with a work colleague? If it is to be the individual themselves, there is an obvious issue with interpretation: determinations are related to legal precedent and require experience that any specific individual is unlikely to possess. (Of course, should this become to onerous, the exemptions for 'too much time needed' will apply). Employing a neutral third party to process the emails is conceivable but would clearly be an extra and unfunded burden on the authority.

Worse, FOI requests may start to specifically target private emails on the anticipation that the determination of official v. non-official will be indistinct, and perhaps a little arbitrary. Remember there is no restriction on what can be asked for - all emails containing an expletive perhaps, or emails related to something sexually suggestive. By the very nature of this ruling, all that is required is that there is a suspicion (justified or not) that some official communication might be caught by these terms to start the process of searching, and sifting through people's private mail. Regardless of how scrupulous any employee is in separating their personal and professional lives, they will still be forced to turn over their private mail.

While this may well not have been the intent of the law, the consequence of this guidance is that no-one working for a UK public authority has any private space in which to communicate. The irony is that the guardian of privacy law in the UK is also the Information Commissioner.

Dr. William Cronon and the Wisconsin Republican Party

This is not related to climate science, but is another example of organisations abusing the FOI/Open Public Records Acts to harass academics with whom they disagree.

Dr. William Cronon, a history professor in the U. Wisconsin wrote a blogpost concerning the drivers behind recent Republican legislative actions in Wisconsin. Two days later, the State Republican party put in a request for his emails from his state (@wisc.edu) account related to Republican politicians, unions, and protests. Read more here:

Open Records Attack on Academic Freedom

When such tools are turned toward purely partisan ends, and when they are used with the express purpose of intimidating or punishing those with whom powerful people disagree, then precious institutions of democracy are deployed to subvert the very liberties we all cherish. It is for this reason that I have spent so much time trying to articulate why I don’t believe the Wisconsin Republican Party should be invoking the Open Records Law to single me out for scrutiny—and implicitly for punishment—in this way.

Relevant Wisconsin OPR Statutes:

In determining whether a document is a record under sub. (2), the focus is on the content of the document. To be a record, the content of the document must have a connection to a government function. In this case, the contents of teachers' personal e-mails had no connection to a government function and therefore are not records under sub. (2). The contents of personal e-mails could, however, be records under the public records law under certain circumstances. Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177, 08-0967.

New York Times Editorial (March 25, 2011):

A Shabby Crusade in Wisconsin

The latest technique used by conservatives to silence liberal academics is to demand copies of e-mails and other documents. Attorney General Kenneth Cuccinelli of Virginia tried it last year with a climate-change scientist, and now the Wisconsin Republican Party is doing it to a distinguished historian who dared to criticize the state’s new union-busting law. These demands not only abuse academic freedom, but make the instigators look like petty and medieval inquisitors.

The historian, William Cronon, is the Frederick Jackson Turner and Vilas research professor of history, geography and environmental studies at the University of Wisconsin, and was recently elected president of the American Historical Association. Earlier this month, he was asked to write an Op-Ed article for The Times on the historical context of Gov. Scott Walker’s effort to strip public-employee unions of bargaining rights. While researching the subject, he posted on his blog several critical observations about the powerful network of conservatives working to undermine union rights and disenfranchise Democratic voters in many states.

In particular, he pointed to the American Legislative Exchange Council, a conservative group backed by business interests that circulates draft legislation in every state capital, much of it similar to the Wisconsin law, and all of it unmatched by the left. Two days later, the state Republican Party filed a freedom-of-information request with the university, demanding all of his e-mails containing the words “Republican,” “Scott Walker,” “union,” “rally,” and other such incendiary terms. (The Op-Ed article appeared five days after that.)

The party refuses to say why it wants the messages; Mr. Cronon believes it is hoping to find that he is supporting the recall of Republican state senators, which would be against university policy and which he denies. This is a clear attempt to punish a critic and make other academics think twice before using the freedom of the American university to conduct legitimate research.

Professors are not just ordinary state employees. As J. Harvie Wilkinson III, a conservative federal judge on the Fourth Circuit Court of Appeals, noted in a similar case, state university faculty members are “employed professionally to test ideas and propose solutions, to deepen knowledge and refresh perspectives.” A political fishing expedition through a professor’s files would make it substantially harder to conduct research and communicate openly with colleagues. And it makes the Republican Party appear both vengeful and ridiculous.

Issues: Agency records, academic freedom