Soapbox: Avoiding FoI requests could be costly - Kevin Dunion
The former Scottish Information Commissioner advises public bodies to take a clue from Clinton
Some in authority believe that the way to avoid freedom of information disclosures is to use their personal email accounts to conduct official business. The most recent exponent is Hillary Clinton, who did so throughout her time as US Secretary of State. Over 30,000 work related emails have now been belatedly passed to the State Department.
However, as Michael Gove, former Conservative Secretary of State for Education, found out, it is not a fool-proof FoI avoidance strategy. He used a private e-mail account, set up by his wife, to conduct exchanges with his special advisers on controversial aspects of his schools programme in England. Almost inevitably some ended up in the wrong hands, prompting demands that they be made public. Gove claimed that these were political, not official, exchanges and so were not subject to FoI laws. The UK Information Commissioner rejected his argument, saying that the primary consideration is the purpose of the email and whether the majority of its contents amount to the business of the department.
But what is to stop someone in authority taking the risk and simply denying that they hold relevant information? Well, FoI law in Scotland makes it a criminal offence to destroy or conceal a record with the intention of preventing disclosure. Knowingly to delete or deny the existence of relevant information, even if held in a personal account, could lead to a fine of up to £5,000. And there is a greater prospect of cases coming to court in Scotland, as the time limit to bring prosecutions has been extended from six months to three years.
If the bad example of using personal accounts to avoid freedom of information disclosure spreads, it is only a matter of time before we see someone in authority in Scotland charged with deliberate concealment.
Professor Kevin Dunion, director of the Centre for Freedom of Information, University of Dundee
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