“Private emails covered by information laws”

Some of you may have picked up the clarification from the Information Commissioner about whether emails from non-work accounts are disclosable under access to information laws.

This came as no surprise to me. Information about official government business in my book falls under access to information legislation. As a historian, I also see it as essential that information that is part of official government business should be managed in a manner that allows historians of the future to go through that information so that they can write up clear understandings of what happened and why. That is in the public interest. The problem with ‘off the record’ emails is that part of the official record disappears.

During the days of paper, files tended to be far more structured than their electronic siblings. At the end of the 1990s I worked in a bank in an international trade back office function. Everything was paper-based, with a fax machine being the height of modern technology. The job I did now no longer exists – everything is done by computer automatically with no need for human intervention. (I wonder if the fees have gone down accordingly?) But I wonder what their paper records look like? That goes for every large organisation irrespective of what sector it is in.

Much as records management is seen as an unglamorous chore, it is still essential. Think of the amount of work time you have lost as a result of trying to find that file you last saved…somewhere. Or perhaps you don’t cleanse your email account because you might need that email sometime in the future? For those of you in the public sector, how many of you have come unstuck because the corporate IT systems have locked down your account for exceeding the storage limit?

Then there are those of you who are in posts where the information you hold is not only potentially disclosable under access to information legislation, but you are in a policy or delivery area where a number of people would very much like to get hold of that information. What do you do?

The problem in this area for me is a cultural one. My first job in the civil service was involved with implementing the requirements of the Freedom of Information Act in the run up to it coming fully into force on 01 January 2005. Like the diligent little truth fairy I went about my business having taken fully on board the benefits of transparency in decision-making. Sir Humphrey I was not. It was in those early years that I formed a strong impression that people needed to know how government functioned (for better or worse) in order to help them hold it to account.

This doesn’t mean transparency is or should be an easy business. Having to handle vexatious requests is a drain on the system and doesn’t help anyone. Informed and targeted FoI requests can however be real game-changers. Think of the expenses scandal. Heather Brook fought tooth-and-nail to get that information released. We are still feeling  the impact of this but what we do know is that the exposure rightly destroyed the careers of a number of now ex-MPs, some of whom are doing jail time. The credibility of other MPs who are still in the chamber will forever be associated with the scandal.

Sir Gus O’Donnell, soon-to-be-ex-Cabinet Secretary bemoaned the Freedom of Information Act in his remarks towards the end of his career - as did Tony Blair, the Prime Minister who brought it in. I can’t pretend to have been involved in the conversations that they were in during my time in the civil service, but my view still remains the same: Transparency on the whole is a good thing – as is the Freedom of Information Act. I say this as someone who, on behalf of central government has had to apply exemptions under access to information legislation and withhold information from public disclosure. I always tried to work from the disposition of “If there is no sound legal reason why we should withhold this information, I would like to release it.” There was always the temptation of saying “X is the information that they want, can we find an exemption with which to withhold it?”

However, as more people join the civil service – in particular those who have grown up in a world of the internet, social media and open data, the more likely that this culture will change. This combined with a push from Coalition Ministers to publish information held by the public sector should hopefully see results.

But what of the “off the record” stuff? Michael Gove and chums got stung as part of the Information Commissioner’s clarification. Part of the problem is the blurred line between  what is ‘Government’ business and what is ‘Party political’ business. Being someone familiar with the civil service, I am familiar with the subtle difference. But I doubt everyone else is. How many people see the government, the civil servants that serve the government of the day and backbench MPs of the party in power as one and the same institution?

Thus we get into the murky world of special advisers. In terms of Michael Gove’s case, my first question would be whether any special advisers have broken Cabinet Office’s guidance for special advisers. (Those of a more sceptical mind may want to submit an FoI request asking for information on any assessments that were made by ministers as to whether the Code was breached? - I imagine a minister would zap it under a Section 36 exemption you may think it’s worth a go).

On the other hand, the whole thing may be an IT problem – one of trying to work out how best to separate what is ‘party political’ work and what is ‘official business’. Do you run two separate systems – one for official business and one for party business? Easier said than done. As with the professional vs the personal in the world of social media, the line between what is party political and what is official government business can become very blurred. At what point does a civil servant providing background briefing for ministers become party-political?

One of the things I think that political parties need to consider – for the sake of political historians out there if anything, is how they store and archive information in a digital age. We’ve heard how the papers of various politicians have been donated to various high profile archives – such as the Thatcher papers that were deposited at Churchill College, Cambridge. If digital information held by political parties is not properly managed, then what may feel like the covering up the short-term embarrassment of a party-political type may actually lead to a far greater longer term loss to history. This for me is especially the case given the nature of the government that we currently have – a coalition. Given the magnitude of the decisions currently being taken, I think that the political parties – all of the big three – owe it to the people and to future generations to ensure that they are maintaining and properly archiving the records of party-political decisions that they are taking.

 

 

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