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Westlake Legal Group > Posts tagged "FOI"

Is “private correspondence” truly private?

In the ongoing search of every constitutional nook and cranny for potential tactics to deploy against the Government, Dominic Grieve and his colleagues provoked an angry row by seeking to require nine named individuals to release correspondence on private channels relating to prorogation.

The battle lines write themselves. One side declares that it seeks only truth, and there’s definitely no element of wishing to intimidate, disrupt or harass the specific named people it is picking out, your honour. The other denounces the effort as an outrageous intrusion into personal privacy, an assault on civil liberties, and an effort to make Government an impossibly hostile environment in which to operate.

You may already have a preferred side in the debate; but the truth lies somewhere between the two.

First, the actual rules. The sought messages are widely described as “private correspondence”, meaning that (if they exist at all) they are alleged to be privately held, through personal accounts on various platforms, and on personal phones and computers. But there are circumstances in which such material can still legally be considered public.

To understand this, we need to look back to the early days of the Coalition. In particular to the Department for Education, between 2010 and 2012. Then the Financial Times and the DfE fought a lengthy battle over exactly this question: were ‘private” messages really private if they related to public officials doing their official work?

The battleground then was Freedom of Information – a journalist used the FOI Act to request emails which he knew existed, between named individuals (including Dominic Cummings, just like Grieve’s proposal). The Department replied that it did not hold the data – which was true, because it was held in private inboxes hosted by whichever email providers were being used.

The FT’s case was that this was a failure of the Department to hold (and thereby disclose) all the required data on its official work, not a failure of the FOI request. Ultimately, the Information Commissioner upheld the journalist’s appeal, and defined public employees discussing public work, no matter the medium used, to be public domain, not private correspondence.

So this might be correspondence on private media, but if it’s on an official topic discussing public work, then it would generally fall under the definition of disclosable public data.

That isn’t the end of the story, however. As Sam Freedman – then a DfE civil servant, and also one of the people whose supposed correspondence was sought under that FOI request – notes, the ruling was clear on the theory but the practice was more blurry: the disclosure was never successfully enforced.

There may yet be legalistic skirmishing over this different route to demand similar publication. But even if it succeeds on paper, it might well run up against the same issue.

Whose job is it to enforce Parliament’s resolution? By what means will Grieve secure the passwords to the named individuals’ phones, email accounts, WhatsApp accounts, Signol accounts, Facebook accounts? In what way will he or his enforcement agents ascertain that they have got all correspondence from all of the nine? I can chat to people via a messenger built in to Words With Friends, have chats with other players on Call of Duty, or whistle coded messages as I pass someone’s house while on a stroll – how is it proposed for Parliament to capture all these possibilities and more?

It’s at this point, of practical implementation, that the civil liberties issues which don’t seem to apply in terms of the messages being “private” do actually start to bite.

And that’s before we wonder what the model is for adjudicating whether disclosed (or seized) data is indeed relevant to the official’s public duties or not. Would the assumption be that everything on all their possible correspondence media should be collected and pores over? Again, who by? Grieve himself? The Information Commissioner? The Cabinet Office?

Now that threatens an invasion of privacy and trampling important rights.

From the invasive prospect of strangers riffling through messages to their partners or pictures of their children or personal financial information, through to the politically controversial idea of leaky officials or even one’s opponents getting access to records of separate but sensitive conversations with the press or one’s party colleaghes, it doesn’t have to go very far before it starts feeling rather hazardous. We must assume those hazards are unintended, rather than a deliberate form of intimidation of those being targeted, but they are undesirable nonetheless.

It seems unlikely that Grieve would be satisfied to let the subjects of the proposal sift messages for disclosure themselves. But the alternative is both impractical and unpalatable.

Even in systems where there is a structure for such tasks – like the workings of the police and CPS when investigating crimes – the job is hard, intrusive, open to misuse, and very controversial. Here, there isn’t a structure or system at all.

If Parliament really wants such a principle, it seems irresponsible and ineffective at best to vote for the desired outcome without any preparation for or consideration of securing it reasonably and successfully.

Even some of those former Tory MPs who lost the Whip last week appear to be aware of these dangers. They haven’t criticised the idea publicly, but it seems unlikely to be a coincidence that former ministers like Rory Stewart and Caroline Nokes voted against Grieve’s measure, while others including Philip Hammond abstained. They know how government works and can presumably imagine some of the downsides of such a tactic.

It also, of course, risks opening this field to tit for tat retaliation. The former Chancellor might perhaps not be that keen for his own ex-advisers to be made to submit to such a trawl on, for example, preparations (or lack of) for No Deal.

Sometimes there is a difference between what you can do and what you should do. Much of Conservatism rests on that principle, and it’s one Dominic Grieve himself has in the past been quite sympathetic towards. It’s telling that even some of his allies on the Brexit issue seem to think he’s on the wrong side of the line this time.

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