ICO says private message channels are subject to FoI


The Information Commissioner’s Office (ICO) has updated its guidance on official information held in non-corporate communications channels, saying it is all subject to freedom of information requests.

It has published a blogpost saying the Freedom of Information (FoI) Act has always been clear that relevant information that exists in the private correspondence channels of public authorities should be available and included in responses to information requests the authority receives.

This comes with a recognition that there has been a gradual increase, accelerated by the pandemic lockdown, of channels such as WhatsApp and Facebook Messenger for conversations relevant to official business.

The ICO said these have always been covered by FoI in order to preserve transparency and public trust.

It added that the updated guidance reflects how the practicalities have changed since it was initially published in 2013.

The guidance includes specific references to private messaging accounts WhatsApp, Signal and Telegram, along with private email accounts Gmail, ProtonMail and Yahoo Mail, and apps with a direct message facility Twitter and Facebook Messenger. The rules also apply to text messages and voice recordings on mobile phones.

Commissioner’s explanation

Information Commissioner Elizabeth Denham has further explained the organisation’s thinking in an article in Municipal Journal.

“To be clear, using private correspondence channels does not break FoI or data protection rules,” she says. “But our concern is that information in private accounts can be forgotten, overlooked or autodeleted when an FoI request is later made.

“This frustrates the FoI process and can put at risk the preservation of official records. It’s also a concern that emails containing people’s personal data may not be properly secured in personal accounts, increasing the risk of a data breach.”