FOI, fear and personal emails for public business

"It feels wonderful to work free from fear of FOI!!"

This expression of relief came in an email from a civil servant at the business department discussing government matters - but sent from his personal email account to colleagues at their private email addresses.

I have just been provided with a copy of this email and others about internet policy sent through personal accounts. Although written back in October 2008, the issue they illustrate - of the relationship between FOI, official business and private email accounts - is still very much a continuing one.

The message was sent by Geoff Smith, an official at what was then called the Department for Business, Enterprise and Regulatory Reform (Berr), now the Department for Business, Innovation and Skills.

It dealt with departmental policy towards Nominet, the private company that controls the .uk internet domain and is thus a crucial part of the UK's online operations.

In 2008 the organisation was trapped in a bitter internal dispute. Some involved felt this threatened its ability to fulfil its nationally important responsibilities and could require government intervention.

According to emails seen by the BBC, Mr Smith was one of a group of Berr and Nominet staff who corresponded about Nominet's problems and Berr's position via their personal email accounts.

Some seem to have been worried that earlier official exchanges on these topics could be publicly revealed through freedom of information requests.

In another email obtained by the BBC, Nominet's senior policy adviser Martin Boyle - who had himself only recently worked at Berr - encouraged his former colleagues still at the government department to delete emails because he suspected "a FOI is just around the corner".

Allegations that business department officials used private email addresses to seek to circumvent FOI surfaced in an employment tribunal case involving Nominet, which was first reported last month after legal restrictions were lifted.

BIS and Nominet both declined to comment on the specific content of these emails.

A Nominet spokesperson explained: "It is not our policy to comment on individual emails."

Similarly, a spokesman for the Department for Business, Innovation and Skills (BIS) said: "We won't comment on individual cases, or on leaked documents."

He added: "However, our longstanding IT security policy is clear: All official correspondence from BIS must be undertaken from a BIS email account and all breaches of our IT policy are thoroughly investigated. Additionally, the department is fully committed to the Freedom of Information regime, including the latest guidance from the Information Commissioner's Office regarding the use of personal accounts."

Government policy on internet governance is now handled by the culture department rather than BIS.

Gove appeal

In November the Information Rights Tribunal will hear a case concerning the use of private emails by the Education Secretary Michael Gove and his advisers. The Department for Education is appealing against a decision by the information commissioner, who ruled that private email accounts are subject to FOI requests when used for official business.

Last year Chris Graham, the commissioner, made clear his view that, whatever any officials and ministers think, they can't evade the FOI law by using private email.

In other words, if the tribunal upholds his stance, officials and ministers will find that using personal email accounts does not guarantee that they are operating "free from fear of FOI".