31/01/2012 08:58 GMT

Michael Gove Waiting On Fresh Advice Before Answering FOIs On Private Email Accounts

Education Secretary Michael Gove revealed he is waiting on further official advice before complying with guidance from the Information Commissioner on the use of private email accounts.

Information Commissioner Christopher Graham told Gove last month private emails and texts which discuss official business are subject to the Freedom of Information (FOI) Act and asked him to "actively discourage" his staff from using them.

Graham carried out his first ever probe of a government department under the FOI law following press reports about the use of private email by Gove and his advisers.

The use of private emails to conduct Department for Education (DfE) business was first revealed in August by the Huffington Post UK after emails were leaked showing Whitehall officials pressuring a school into becoming an academy.

The Financial Times quoted a message last September from special adviser Dominic Cummings in which he said he would only answer emails to his Gmail account and not to his official departmental address, and urged colleagues to do the same.

The DfE said at the time the message concerned a Conservative Party conference and not government business.

Appearing before the Commons Education Committee on Tuesday, Gove was repeatedly pressed over whether he had acted on the Information Commissioner's advice and taken steps to ensure that private emails which might be subject to FOI requests are not deleted.

He confirmed that the department's own chief freedom of information adviser had ruled last May that private email accounts are covered by transparency laws introduced under the previous Labour administration.

But he told the committee that this advice conflicted with that of the Cabinet Office, which said that anything held in a private email account was not subject to disclosure under FOI.

Gove said: "We followed the advice we received from the Cabinet Office.

"We have received a view from the Information Commissioner. I am waiting for the Cabinet Office to give us updated guidance in the light of what the Information Commissioner says. In the meantime, we have chosen to act in line with the guidance we have received from the Cabinet Office."

Labour MP Lisa Nandy asked Gove three times to say whether he or his advisers had ever "used private email accounts in order to conceal information from civil servants or the public".

He replied: "I have always followed the advice that the Cabinet Office laid down on Freedom of Information.

"Sometimes I have sent emails on my private account to my wife about whether or not we might go to the theatre and, on the whole, I would have thought that that would have been something that, while the civil service or the public might have been interested in it, it wouldn't necessarily have been appropriate to share.

"There are many different interpretations of how the Freedom of Information Act might apply, and I have always followed the advice I have received from the Cabinet Office."

Departmental business can only be conducted by going through officials, which inevitably means that any emails will leave a trail in in the Department for Education account, said Gove.

But he added: "It can be the case that I, as an individual, can have all sorts of conversations with all sorts of people. These conversations can be private, they can be political.

"I think it is incumbent on me to follow the advice that I receive from the Cabinet Office and from the Permanent Secretary about what to do."

Gove said he believed that, when the Financial Times submitted an FOI request for information from private emails exchanged between him and his advisers, the newspaper in fact already possessed the messages in question.

"My understanding is that that it is the job of the Information Commissioner to protect individual data," said the education secretary.

"The department has been on the receiving end of leaked stories that rely on information that would appear to me to have been obtained in a way which was not consistent with respect for individuals' privacy and data.

"It is part of life and part of Government that leaks occur, but I think it is also appropriate that the department does its best in order to ensure that there is a confidential space for policy discussions."

Asked whether he had ever directed officials to reject FOI requests on specific issues, Gove said he may have voiced the opinion that certain questions were "vexatious and irresponsible" and dealt with areas outside the scope of the legislation.

But he insisted: "I may have expressed an opinion on the operation of the law, but the law is the law and in the end we have to respect it, whether or not it is applied in a way I would think was wrong."