Private email addresses do not escape the remit of FOI

Updated January 2012

The Information Commissioner's Office (ICO) has published guidance which makes it clear that public authorities cannot escape the remit of the Freedom of Information Act 2000 (FOIA) by using private email accounts. The guidance follows recent cases where public authorities have failed to disclose information which was sent using private email addresses.

The FOIA requires public authorities to disclose information on request where information is held by the public authority or is held by a third party on behalf of the public authority. The ICO's guidance makes it clear that where private email accounts are used for official business it is highly likely that information contained in relevant emails within the private account will be held on behalf of the public authority and will therefore fall within the scope of FOIA.

When requests for information are received, public authorities will need to consider whether it is likely that any information is held in private email accounts. If so, individuals should be asked to conduct a search of their private email accounts to locate relevant information. The ICO recommends that organisations establish procedures for dealing with such situations. Such procedures will include the factors that will be taken into account when deciding whether to ask individuals to search their private accounts and keeping records of searches undertaken to enable public authorities to demonstrate that all relevant records have been searched.

The ICO also recommends that public authorities remind staff that it is a criminal offence to delete or conceal information with the intention of preventing disclosure under FOIA and that records management policies make it clear that information on authority-related business should, where possible, be recorded on authority systems.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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