The Information Commissioner’s Office has recently published guidance on how the FOIA applies to private emails. The ICO says that:
Where a public authority has decided that a relevant individual’s email account may include official information which falls within the scope of the request and is not held elsewhere, it will need to ask that individual to search their account.
Where people are asked to check private email accounts, there should be a record of the action taken. The public authority needs to be able to demonstrate, if required, that appropriate searches have taken place.
Although the main emphasis of the guidance is on official information held in private email accounts, public authorities should be aware that the law covers information recorded in any form.
Public authorities should remind staff that deleting or concealing information with the intention of preventing its disclosure following receipt of a request is a criminal offence under section 77 of the Act.
It is accepted that, in certain circumstances, it may be necessary to use private email for public authority business. There should be a policy which clearly states that in these cases an authority email address should be copied in to ensure the completeness of the authority’s records.
See the guidance, published on 15 December, at http://www.ico.gov.uk/news/latest_news/2011/ico-clarifies-law-on-information-held-in-private-email-accounts-15122011.aspx