Dear All,
I was
wondering if anyone had any experience in this area and could help. As you
may know some of the ministers in the UK (Gove and Hunt) have relied on private
email accounts to conduct email exchanges on public business to avoid being held
for the purposes of the FOIA.
I was wondering if anyone had any experience with defining a public record and could shed light on the issue
If what the minister, as minister, writes *can be considered a public record* (after all a minister has the power to bind the country to a course of action based upon what he agrees through his delegated authority from Parliament and on from the Crown) then no matter the media, it is held *as a public record.*.
See the public records act 1958. The National Archives 1999 guidance note on the issue is instructive. http://www.nationalarchives.gov.uk/documents/whatisapublicrecord.pdf
4 Definition of public records
4.1 Public Records are defined in section 10 (1) of the Public Records Act, 1958, and the First Schedule of that Act. ‘Records’ in general are defined as carriers of information in any format (e.g. paper, photographic, film, sound, electronic, three dimensional models) (section 10(1)). ‘Public Records’ are specifically defined in the First Schedule; these definitions are summarised overleaf. [emphasis added].
Here is section 10 (1)
10 Interpretation.E+W+S+N.I.
(1)In this Act “public records” has the meaning assigned to it by the First Schedule to this Act and “records” includes not only written records but records conveying information by any other means whatsoever.
The question comes down to whether he was writing as a minister or as a private individual (or as a political party member). If what the minister writes, as minister (not as private individual (or political party member), is consider a record [he is acting on instruction from Her Majesty in running his Ministerial Department], then no matter where he writes it [on a personal email account or in his diary] it is a public record. If it is a public record, then it is held for the purposes of the Act.
The issue, then is whether he was discussing public business, i.e. acting as minister. If he was, then I would argue he has created a public record, which would be held by the Government for the purposes of the Act.
I would be interested to know what others think.
Thanks
Lawrence
Principal Information Management Officer
Durham County Council
Room 4/140
County Hall
County Durham
DH1 5UF
03000 268038