Nudge Nudge Wink Wink

I like Michael Gove: like Eric Pickles, he keeps happy 1980s memories of Spitting Image alive just by having a face that, even in repose, looks like a caricature. But Mr. Gove has, as described in Chris Cook’s story in the Financial Times, apparently presides over a wrong-headed approach to FOI that shows once again that politicians and their henchmen would do well to learn how the damn thing works, if only to get around it properly.
As you no doubt know, the FT ( and register yourself) reports a series of emails showing Gove and assorted Spads resorting to Gmail to get around the embrace of FOI requests. Slytherin House immediately loses ten points even if the Department’s retort that Gmail was used only for political emails is true. Truly political emails (about party political matters) would probably be outside the scope of FOI and could be sent on the DoE system anyway. It’s what the emails were about that matters, not where they were, a situation which works both ways.
I don’t know which is worse – the apparent inability to accept the discipline that an inherently mobile and insecure mode of communication like email requires, or the ignorance of how FOI actually works. One of the ways in which an organisation can easily snooker itself under FOI is to see the information it ‘holds’ as being the stuff in the corporate email system, the formal files, the official record. FOI is much more slippery than that. It covers the post-it note, the pile of papers at home, the work-related email sent from your personal account. And if an organisation responds to an FOI with ‘not held’, and someone knows that emails or other information exists even in a non corporate system, it’s possible that a criminal offence has been committed. 
Dorothy Parker said that love is like quicksilver in the hand. Leave the fingers open and it stays. Clutch it, and it darts away. Email can be the same – the more you try to keep it secret, the more the recipients know they’ve got something working having and worth leaking. Look at the nudge-nudge-wink-wink emails that the FT is getting such good material from today. People in Government need to understand that FOI exists and it gets everywhere. They should respond to this by more mature, better-informed decision-making, and correspondence framed in a professional manner that stands up scrutiny. 

But if that’s too much for them, can’t they at least get better at hiding their secrets? Ever keen to assist, I end on five suggestions for better FOI evasion:

1) Stop governing at all – Belgium hasn’t had a government for more than 460 days, and they’re still brewing the best beer in the world. You’ve got nothing to hide if you’re not doing anything.

2) Roald Dahl wrote a wonderful story in which a frozen leg of lamb was used as a murder weapon, then fed to the detective investigating the killing. So take a leaf out of his book – write all of your most incriminating thoughts in piped jam on toast. The recipient reads the message, then eats the toast. 

3) Mission Impossible style exploding tapes (remember to switch off the smoke alarms) 

4) Write all government communications in Esperanto (bona mateno to all Esperanto speakers!)

5) Mime – it’s the future


  1. Is there any actual case law in the UK that has determined that records at gmail are 'held' for the purposes of the FOI legislation? I'm not sure you've fully thought this through…There are at least two issues. How are such emails to be retrieved? and what does this imply for privacy regulations?If it must be voluntarily, then how will claims that no information is held be validated, and yet if it is declared that public servants must have automatic access to employee's gmail accounts, that is likely to cause an outrage.In US FOIA, 'held' really means held – ie. under the control of the agency, and private email accounts are clearly not held in this sense.The only twist in the US similar to this case relates to the Presidential Records Act which mandates the use of government servers for communications related to the executive office. A case DNC vs DoJ brought to light the Republicans using RNC email for official business which the DNC tried to use FOIA to access. However, the rule broken was the PRA, and once the emails were surrendered to the DoJ they subsequently 'held' them for the purposes of FOIA. However, there is an absolute exemption for pre-decisional discussions from the executive branch, and so they were exempt from release (like the ministerial exemption in the UK).FOI officers in the UK or US do not have subpoena power, so claiming that gmail accounts really are searchable under FOI would appear to be unenforceable – hardly a good basis for good law.Thoughts?

  2. In the UK, 'held' is commonly accepted to mean 'used for the purposes of'. Many FOI officers are obliged to go to private companies and others in order to obtain information that has been generated for the purposes of the public authority. There are plenty of cases to support that principle.I have little doubt that we will shortly have cases to underline the logical extension of this to text messages and private email accounts. The privacy of personal correspondence will always be protected from disclosure, but a public servant who uses Gmail or Hotmail to send official correspondence is willingly putting their own privacy at risk. If they don't cough up the correspondence when asked, they're at risk of committing a criminal offence.

  3. Thanks, but I'm not sure I follow you. Court rulings have specifically stated that "held" has no specifically technical definition for FOI, i.e. it means what it is colloquially assumed to mean. Can you give a reference to a case where information was successfully retrieved from a private entity against their will?Given that FOI officers do not have access to gmail accounts, how are they supposed to check whether FOI-able material exists there? They can ask nicely I suppose, but there does not appear to be any recourse in the event of a declaration that no material exists. Are subpoenas to be called for in the event that a suspicion of material existing? In the physical world, do FOI officers have the right of entry into a private dwelling to search for potentially releasable material? I think not (right?).Thus while a false declaration may indeed be a criminal offense theoretically (should 'held' be interpreted to include private email accounts), it would appear to be unenforceable absent the emails turning up in some other context.I don't see how a public servant/academic who sends something by gmail 'puts their privacy at risk' though. Material does not become FOI-able by association, nor is there any mechanism to subpoena email accounts, short of a court order. Thus perhaps you could give an example of how you think that might work? This is of course separate to the issues of drawing lines between official and non-official communications – especially by HEI academics whose communications often blur attempts to have distinctions. Your claim that private correspondence will always be protected is a tad optimistic.

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