8:50 am - April 18th 2013
by James Elder
Over the past 18 months, I have been keeping an eye on what’s been going on with Michael Gove and his Special Advisors at the Department for Education. This is a story which, being about the Freedom of Information Act (the gears of which grind slowly), has taken a long time to reach any sort of resolution. Having found that I had lost the plot on the most recent developments, I did a bit of digging and present it all here in one post, for the convenience of others.
It is perhaps telling that originally I was intending to tell a particular story, about the use of private email accounts, but that this post has grown like topsy as I’ve found that there are so many linked strands which don’t make full sense unless you have the whole picture. I decided that the best way of telling the story was as a simple timeline of events. All of this was already in the public domain, although I have exchanged tweets with Chris Cook at the FT and exchanged emails with a case officer at ICO to clarify a couple of points.
So, apologies that this is so long. I hope there are at least a few people who find it interesting or useful! The first few entries are necessary scene-setting. Things start getting interesting in February 2011, so stick with it.
NB some of the links are to ft.com, which allows free access to a certain number of articles per month before a subscription is required. As such, you may or may not be able to get access to all of them.
The Twitter account @toryeducation is set up. Its creator claims to be a “Conservative Education Press Officer Pantomime Villain of leftie Education Folk” (later this is amended to “Pantomime villain of leftie education folk.”) The list (now removed) https://twitter.com/conservatives/conservative-hq on the official @conservatives page, which says it is a list of twitter accounts “run by staff at Conservative party headquarters”, has @toryeducation as one of its ‘members’. The account will go on tweet well-informed updates on Conservative education policy, and some sharp attacks on anyone deemed to be opposed to it.
Caroline Flint asks in a Parliamentary Question ”how many expressions of interest in becoming a free school the New School Network has received in (a) Doncaster and (b) Don Valley [this being her constituency] to date”. New Schools Network (NSN) is a charity working with DfE on new schools. In a leaked email, Dominic Cummings, freelancing for New Schools Network, tells a senior civil servant:
NSN is not giving out to you, the media or anybody else any figure on ‘expressions of interest’ for PQs, FOIs or anything else. Further, NSN has not, is not, and will never answer a single FOI request made to us concerning anything at all.
Cummings is completely within his rights, as charities are not covered by FOI, but it does provide an insight to his views of the merits of transparency! Flint is, in fact, given a relatively helpful response by Schools Minister Nick Gibb.
Late 2010/Early 2011
Dominic Cummings is appointed as Special Advisor to Michael Gove. For those not aware Special Advisor is a formal designation. Special Advisors (often known as Spads) are paid for by Departments (i.e. by the taxpayer) and
are employed to help ministers on matters where the work of government and the work of the political party in government overlap, and where it would be inappropriate for permanent civil servants to become involved.
They are not obliged to be politically impartial, but they do have to keep to a code of conduct which states, amongst other things that Spads
should avoid anything which might reasonably lead to the criticism that people paid from public funds are being used for party political purposes. The highest standards of conduct are expected of special advisers and, specifically, the preparation or dissemination of inappropriate material or personal attacks has no part to play in the job of being a special adviser as it has no part to play in the conduct of public life. Any special adviser ever found to be disseminating inappropriate material will automatically be dismissed by their appointing Minister.
As employees of a public authority, any records they create that relate to the business of the authority are covered by the FOI Act.
24 February 2011
Cummings emails Spads across Government, including his fellow DfE SpAd Henry de Zoete, and colleagues at Conservative Central Office, to say that he
will not answer any further e-mails to my official DfE account?…i will only answer things that come from gmail accounts from people who i know who they are. i suggest that you do the same in general but thats obv up to you guys – i can explain in person the reason for this?…?[sic]
February – March 2011
Chris Cook, Education Correspondent at the FT gains gains sight, through third parties, of a number of emails between Gove, Cummings and de Zoete using private email accounts (gmail and the like) rather than their DfE addresses. He begins asking DfE for the emails (or parts of them), using targeted FoI requests. He also asks whether Michael Gove and his Spads are following a deliberate policy of using private email accounts to try to place themselves beyond the reach of FoI.
29 March 29 2011
The FT informs DfE of legal advice it has received. Andrew Partridge, the lead DfE Official forwards the legal advice to Sir David Bell, the then Permanent Secretary of DfE (i.e. DfE’s top Civil Servant – its ‘Sir Humphrey’). The advice states that
using a personal email account to conduct government business does not render the emails ‘personal information’ for the purposes of FOIA.
Partridge noted that this
accords with our view in the IR [Information Rights] team.
17 May 2011
Partridge tells the Permanent Secretary the Act is not confined to the contents of departmental accounts if
information held in personal accounts may relate to the business of the department.
In a separate issue, three FOI requests to DfE, for lists of those making expressions of interest about setting up Free Schools are rejected by DfE (more on this later).
19 September 2011
Chris Cook publishes his first FT story on this subject; it runs on the front page. Among the details is that at least one of the emails in question is from Michael Gove himself, using a gmail account, registered in the name of his wife, Sarah Vine (a journalist at The Times) and known as the “Mrs Blurt” account. The story is also picked up by others. Cook refers the case to the Information Commissioner’s Office (ICO).
21 September 2011
Cook reports that DfE is taking the position that
The Cabinet Office is clear private email accounts do not fall within the FOI Act
whereas the Information Commissioner, Christopher Graham states that
It is certainly possible that some information in private emails could fall within the scope of the Freedom of Information Act if it concerns government business. This will be dependent on the specific circumstances.
21 September 2011
@toryeducation begins tweeting insults about Cook, calling him a “Stalker” and “Walter Mitty”.
It also becomes clear that DfE are relying on the argument that conversation between Ministers and Spads should be on personal email because, under their Code of Conduct, SpAds must “not use official resources for party political activity”. However as this piece, by a former Government lawyer, notes this is an unusual interpretation of the Code of Conduct and “the strong starting point should be that what special advisers do is official business and therefore subject to FoI”.
15 December 2011
ICO releases guidance clarifying the proper interpretation of the Act as applied to private email accounts. This is unequivocal:
It should not come as a surprise to public authorities to have the clarification that information held in private email accounts can be subject to Freedom of Information law if it relates to official business. This has always been the case – the Act covers all recorded information in any form.
It is accepted by the Commissioner, 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.
Graham also visits DfE in person to talk about good practice, and publishes the findings of his discussions with senior officials there:
The Department for Education have a number of policies, procedures and guidance notes which cover responses to Freedom of Information requests. A process is in place to ensure that correspondence to and from Ministers and Special Advisers is searched in response to requests where required. Furthermore, the Information Rights Team have demonstrated an understanding of the application of the FOI Act in the context of the use of private email accounts and there is evidence that this has been provided in advice and guidance since the allegations have been made. However, it is not clear that this advice and guidance has been fully understood and followed by those covered by it.
31 January 2012
Michael Gove appears before the Education Select Committee. Questions 137-8 by Ian Mearns and 170-187 by Lisa Nandy are the relevant ones. He is evasive in the extreme over whether he and his advisors have used private email accounts to discuss official business but is clear that, regardless of the December advice from ICO, he continues to rely on advice from the Cabinet Office that the emails requested by Chris Cook were of a political nature and as such out of scope of FOI.
9 February 2012
In October, Martin Rosenbaum at the BBC had asked the Cabinet Office for a copy of any guidance it held on the subject of personal email accounts and FOI. Rosenbaum reports that the Cabinet Office had replied in January stating that it does not hold any such information.
In other words, there was no written Cabinet Office advice or policy; any advice given was oral only.
A strange development. The FOIman blog posts an article on the saga. In the comments below it, someone calling themselves Captain Sensible makes a number of postings. This person says that s/he is involved in politics though not a Minister or Spad. However as this article points out, Captain Sensible seems strikingly well-informed and to have unusually strong views on the subject. My personal suspicion is that the author is someone very close to the centre of the whole affair.
Sensible says Christopher Graham is a “second rate egotist” making a “power grab” and takes the line that a
minister talking to his or her SpAd is, ipso facto, political and not a matter for nosy journalists.
There is also an interesting take on the role of Civil Servants who
have zero interest in allowing the public to see what is going on behind closed doors. Their interest here – and the reason they love the latest FoI lebensraum – is that it allows THEM to see what’s going on behind the doors of ministerial offices, where they have no business during political discussions.
13 February 2012
Chris Cook publishes the text of the Michael Gove email from the Mrs Blurt account. This would seem to demonstrate that little or none of it is party political in nature and as such is in scope of the FOI Act. Whether it would be caught by one of the Act’s exemptions is of course a different matter.
2 March 2012
ICO releases a Decision Notice on Chris Cook’s FOI request. Unsurprisingly, given its December advice, ICO finds that the emails are in the scope of the Act and should be disclosed.
3 March 2012
Chris Cook reports that the Media Standards Trust has learned that many emails between Cummings, de Zoete and journalists on their official DfE accounts (i.e. this does not refer to their private accounts) have been deleted. DfE states that
Many individuals routinely delete emails so as to maintain order in their inbox. The act of deleting emails is no evidence of wrongdoing.
But, as Cook reports
according to rules laid out by the Lord Chancellor, officials destroying documents must keep deletion logs with which ‘to defend themselves against a charge … that records were destroyed in order to prevent their disclosure’. The DfE has refused to reveal any such logs.
Adam Chapman, partner at Kingsley Napley and a former government litigator on FoI, said the disclosures were ‘very curious’. ‘A department should be able readily to explain what its records management policy is, what emails or classes of emails it has deleted and why.’
The ICO is investigating what Christopher Graham, information commissioner, has called ‘allegations of a criminal nature’ at the DfE – whether data were destroyed or concealed to prevent its release.
So far as I have been able to establish, the Information Commissioner has not yet released any findings on this last point.
14 March 2012
There is a debate in the House of Commons on the issue.
Late March 2012
It is confirmed that the DfE is appealing the ICO decision notice to the Information Tribunal. Chris Cook reports that DfE says it
does not accept the grounds on which the Commissioner has come to his conclusion.
ICO issues a Decision Notice on the Free Schools request (see June 2011), requiring disclosure.
29 September 2012
DfE drops its appeal to the Information Tribunal of ICO’s decision notice on the private emails, and discloses the emails to Chris Cook (the strong legal consensus appeared to be that DfE was certainly going to lose). It is announced that the Cabinet Office will be issuing new guidance of the use of private email. Effectively this confirms that ICO’s guidance of December 2011 stands: if it concerns the business of a public authority, information can be within scope of FOI whether it is held in a private gmail account, a text message, a twitter DM etc etc.
The Information Rights and Wrongs blog considers the impact and enforceability. While the guidance states that it is appropriate for public authorities to ask their staff to search their email for any information within scope, the employer does not have the right to infringe staff-members’ privacy by itself searching the account.
On one view, then, nothing much has changed with the concession by the DfE, although no doubt many new FOI requests will be made as a result. What has changed, perhaps, is the focus on individuals’ personal responsiblity under FOIA. Currently, section 77 creates an offence if a person alters, defaces, blocks, erases, destroys or conceals a record in response to an FOI request. If a trawl of emails on a public authority’s systems is required this will normally fall to IT, or similar, and employees have little say – or, if you like, given the existence of back-up systems – limited opportunity to commit a section 77 offence. Now, if the same employee is asked whether private emails contain specific information, and he or she untruthfully says “no”, criminality – the mens rea – will be relatively easy to make out.
The question is, how would we find out?
21 December 2012
This is a bit like the ICO’s equivalent of schools being placed in special measures following a critical inspection by Ofsted. The ICO increases its checks on poorly performing authorities until it is satisfied that their procedures have improved.
15 January 2013
The First Tier Tribunal upholds the ICO Decision Notice on Free Schools – see June 2011 and June 2011.
17 January 2013
James Forsyth, in a Spectator blog about a former DfE Minister Tim Loughton, who had been ousted at a reshuffle, cites a “senior DfE source” as saying that
Loughton was a lazy incompetent narcissist obsessed only with self-promotion.
Loughton writes to the new Permanent Secretary at DfE, Chris Wormald, asking that the Department identify and discipline the source.
23 January 2013
Michael Gove appears before Education Select Committee (the transcript does not appear to be online yet). The Observer reports that he is asked if he is “aware of allegations of Spads acting inappropriately to civil servants within the department?” Gove answers: “No.”
2 February 2013
The Political Editor of the Observer, Toby Helm, feels the ire of @toryeducation after he writes a story not entirely to their liking. The accounts tweets a series of derogatory remarks and accusations against him.
The Editor of the Observer, John Mulholland, writes to Michael Gove and to Chris Wormald, asking them to investigate the Twitter account.
The Observer also has an exchange of emails with Dominic Cummings and Henry de Zoete asking whether they have contributed tweets for @toryeducation.
I am not toryeducation
Which doesn’t really answer the question.
I’m not wasting time on the tantrums of Toby Helm and Chris Cook over anonymous Twitter accounts. Am I supposed to take seriously anonymous accusations about anonymous Twitter accounts ridiculing journalists with too much time on their hands? I suggest that your advice to both of them is: take a Twitter detox because it’s melting your brains, focus on what’s important, stop behaving like eight-year-olds…Of course I’m not this Twitter account and never have been, I focus on project-managing priorities, I don’t waste my time on Twitter and you should tell your staff to do the same.
Again it’s not quite the same thing to say “I’m not toryeducation” (i.e. the account is not registered in my name) as it would be to say “I’ve never tweeted from the account”. Given that The Observer gave Cummings and de Zoete the chance to deny that they had tweeted from the account and they didn’t, the conclusion that can be drawn is fairly obvious.
9 February 2013
The Observer reports that
a senior civil servant in the education secretary’s department has received a secret payoff of about £25,000 out of public funds, after a lengthy grievance procedure involving members of Gove’s team, including his special adviser, Dominic Cummings, and the department’s former head of communications, James Frayne.
While an investigation within the department cleared the men, and said no disciplinary action was necessary, the final judgment made clear that their conduct had on occasions fallen short of the levels expected and that the behaviour of Cummings and Frayne, who has since left the department, “has been perceived as intimidating”. After the internal investigation was launched in the spring of 2012, the civil servant also decided to lodge a case with a tribunal, where the allegations would have been heard in public. A date was set for January 2o13, but after further negotiations the financial settlement was agreed and the tribunal was cancelled.
As a result of this report, Michael Gove and Chris Wormald are recalled to give further evidence to the Education Select Committee.
13 February 2013
Michael Bosch, using the WhatDoTheyKnow website, makes the following FOI request to DfE:
I would like the contents of the Direct Message mailbox for
@toryeducation, which is in scope of the act. Special advisers may
only perform media work to the extent that it advances the agenda
of the government. Any use of a public Twitter account, therefore,
must be government work.
Please also perform a keyword search for any emails using the term
“toryeducation” across the inboxes (including private accounts) of
the permanent secretary, the special advisers and of Mr Gove.
At the time of writing, DfE has only managed to provide a holding response to this request. They are nearly a month overdue in providing a response.
15 February 2013
Richard Garner in the Independent writes a story on alleged bullying and bad behaviour by Michael Gove’s advisors at DfE.
19 February 2013
Having been compelled by a Decision Notice of ICO, upheld by the Information Tribunal (see 15 January 2013), to disclose details of those making expressions of interest about setting up Free Schools, Michael Gove thinks it necessary to write an open letter to the Information Commissioner explaining why this a A Bad Idea. Gove says he would:
defend, to the death, the right of anyone to oppose Government policy. I do
not believe however that it is right to facilitate the targeted intimidation of brave
people acting on noble motives.
He gets a reply from the Commissioner on the same day. Christopher Graham is unimpressed. While he notes Gove’s
strong views, strongly expressed…I do not for a moment accept that the publication of the material that you are obliged by law to make public today in any way ‘facilitates the targeted intimidation of brave people acting on noble motives.’
I will join you in defending the right to oppose (or support) of Government policy. But I will also defend the operation of the Freedom of Information Act in the public interest.
20 February 2013
Responding to the article on 15 February Dominic Cummings says that The Independent’s Richard Garner should “speak to Chris Cook about a good therapist”. The Independent notes that Spads are supposed, under their Code of Conduct, to avoid personal attacks.
13 March 2013
Gove had said on 23 January that he was not aware of any allegations of inappropriate behaviour by his SpAds. Then on 9 February the Guardian had published details of a complaint by a member of DfE staff which had been due to go to an Employment Tribunal but had been settled with a payment of £25,000.
Wormald confirms that, because an internal DfE inquiry had cleared Dominic Cummings and James Frayne, Gove had not been told. He says there had been a judgement that, if told, Gove would have had a potential conflict of interest. However, some Labour members of the Committee find this odd because the Ministerial Code states that Ministers should take direct responsibility for the actions of their SpAds.
Gove also states that he had directly asked Cummings and de Zoete whether either of them was responsible for briefing The Spectator on Tim Loughton (see 17 January 2013) and that both had denied it.
25 March 2013
@toryeducation goes after Suzanne Moore. At this point it is apparently still listed as a ‘member’ of the list (now removed) https://twitter.com/conservatives/conservative-hq on the official @conservatives twitter page, which says it is a list of related twitter accounts run by staff at Conservative headquarters.
26 March 2013
@toryeducation and Tim Loughton exchange a series of strongly-worded tweets. The argument relates to a 2011 Serious Case Review (SCR) of what had gone wrong at Doncaster social services after a terrible case in Edlington, South Yorkshire. I feel I need to apologise for bringing such a tragic case even tangentially into this story, but unfortunately those few details are necessary to make sense of the exchange of tweets.
Loughton welcomes the Government’s response to the SCR but tweets:
“Tougher intervention in Doncaster children services http://tinyurl.com/bqoj9m8 should have happened in 2011 when I wanted to publish SCR in full”
In 2011, Loughton was the Children’s Minister and the implication of this tweet is that as Secretary of State, Michael Gove had overruled him.
.@timloughton Your lies on this subject are by far the worst of anything you’ve done in politics & we hope nobody believes a word you say
Loughton’s answer to this:
@toryeducation time 4 a senior DfE source to come out from cloak of anonymity and face scrutiny rather than rewriting history shamelessly?
@toryeducation now we know there were only 5 people in room privy to me being blocked from publishing SCR so shall I name them?
@toryeducation time 2 man up & reveal yourselves both of u-lets publish DfE Edlington memos redacted & see who is lying & who ur protecting
This is not a Department for Education account.
If we were to receive any evidence that anyone connected with the DfE had broken the Special Advisers Code or the Civil Service Code, then we would take appropriate steps.
27 March 2013
Last twitter activity for @toryeducation suggesting perhaps that someone has decided that things had gone too far.
So, there we have it. I said at the start that I would leave comment on the implications of this sorry saga for another day. But in large part it speaks for itself. Set aside the febrile Westminster-village gossiping and backbiting, there are serious questions raised.
This is a guest post.
· Other posts by Guest
Story Filed Under: Blog ,Conservative Party ,Education ,Westminster
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