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Powers to deal with email shredding should be strengthened

The Information Commissioner’s powers to prosecute authorities or officials who destroy information to prevent its release under the Freedom of Information Act should be strengthened, according to the Campaign for Freedom of Information.

Special advisers and the Secretary of State for Education are reported to have deliberately used private email accounts to keep correspondence off the department’s official servers. The news was revealed by the Financial Times which made FOI requests for email exchanges discussing government business, copies of which it had already seen. The newspaper expressly asked for specified private email accounts to be checked. They were told that civil servants could not find these exchanges.[1]

The Campaign said that the critical question was whether the emails in question were still held at the time of the FT’s request. If they were held, even on personal email accounts, they were subject to the Act.

The Campaign’s director Maurice Frankel said: “If, in trying to answer FOI requests, the Department asked the minister or special advisers for copies of emails about their official work held on personal accounts, and they deliberately withheld or destroyed them, they probably committed offences under the FOI Act.

If the emails had once existed but been destroyed before a request was made, no offence would have been committed – even if they were deliberately destroyed to pre-empt any future request. This highlights a shortcoming in the Act, which does not prevent records being destroyed in anticipation of a future FOI request.”

The Campaign called for this restriction to be removed, so that the pre-emptive shredding of records – if it could clearly be shown to have been done to prevent future disclosure – would also be an offence.

The Campaign said a further shortcoming was that a prosecution had to be brought within 6 months of the offence being committed. If the shredding is not discovered until after 6 months – and it often cannot be – nothing can be done. The Campaign tried to have this time limit extended to 3 years in 2009 when the Labour peer Lord Dubs tabled an amendment to this effect. But the previous government refused to accept it, saying that there was no evidence that the time limit was causing problems.
Note:

Under section 77 of the Freedom of Information Act, it is an offence for a public authority or an official to deliberately destroy, alter or conceal a record which has been requested under the FOI Act with the intention of preventing the disclosure of information to which the requester is entitled

[1] ‘Gove under scrutiny for official use of private e-mail accounts’ Financial Times, 20.9.11

 

Further information

Maurice Frankel or Katherine Gundersen 020 7490 3958

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