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Friday, November 21, 2014

Warning that doing government business through personal emails could amount to misconduct, or worse.

The South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) is concerned that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounds a warning:
"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."
Just a South Australian issue? 

I haven't seen it raised by the various watchdogs in other Australian jurisdictions, but it would be naive to think it doesn't or couldn't happen elsewhere.

And just ministerial staffers?

In an article in July this year based on documents released under FOI about an advertising campaign by the Rudd government to deter boat arrivals, Tom  Swann uncovered references to an email described as from “the Minister’s Gmail”:
The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”. The email ordered “Full-page ads in all metro tabloids the day after the announcement and the next 3 days”, “Ads in all major ethnic papers”, “radio spots” and “social media”, with a budget of $30 million. It also provides the campaign slogan.

"Personal emails" cropped up in the UK in 2011 as an access issue prompting the Information Commissioner there to issue guidance that emails of this kind could, depending on content, come within the terms of the FOI act there. On that score in most jurisdictions here, the test would be whether the email is held by the agency or in the possession of an officer carrying out duties. 

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