- What is a communication?
- What does internal mean?
- Are communications between central government departments internal?
- What about executive agencies, non-departmental public bodies and wholly-owned companies?
- Are communications between public authorities internal?
- Are communications with a third party internal?
- What about communications sent both internally and externally?
- Are communications which record third party information internal?
- What about forwarded communications and attachments?
- How does the exception work with emails and email chains?
Regulation 12(4)(e) is a class-based exception. There is no need to consider the sensitivity of the information to engage the exception. A wide range of internal documents will be caught. In practice, the application of the exception is limited by the public interest test.
The concept is broad and includes any information someone intends to communicate to others. This includes information communicated by letter, memo and email. It also covers official information contained in non-corporate channels or locations including:
- private email accounts;
- private messaging accounts eg WhatsApp, Signal or Telegram;
- direct messages sent on apps such as Twitter or Facebook Messenger; and
- messages sent on private mobile devices, such as text messages on mobile phones and voice recordings.
Our guidance on non-corporate communications recognises that technological changes mean new messaging apps, platforms and channels continue to be developed. You should not assume the above is a definitive list of non-corporate communications channels.
Communications also include information which has been filed either on paper or electronically where others may consult it.
In Committee on Climate Change v Information Commissioner and Andrew Montford (EA/2020/0231, 3 August 2021), the Information Tribunal considered whether spreadsheets which were saved on shared drives, and therefore available for working on by different analysts at the public authority, constituted internal communications. It accepted that all of the spreadsheets were ‘communications’.
Communications do not include information recorded simply to be used by its author, eg an aide-memoire, unless this records the content of other communications, such as personal notes of an internal meeting or discussion.
Unsent draft communications may still constitute a communication. However, the exception in regulation 12(4)(d) for draft material may be more appropriate, and we advise you to consider that exception.
Documents attached to a communication are considered to have been communicated to others. You should consider each attachment separately when deciding whether or not it is an internal communication. See Forwarded communications and attachments for more information.
An internal communication is a communication that stays within one public authority. Once a communication has been sent to someone outside the authority, it is generally no longer captured under this exception.
Communications between central government departments are expressly included as internal communications in regulation 12(8).
In Friends of the Earth v Information Commissioner and ECGD (EA/2006/0073, 20 August 2007), the Information Tribunal considered communications between ECGD (a government department) and other central government departments. Friends of the Earth argued that regulation 12(8) was inconsistent with the European Directive, which did not explicitly protect communications between departments. However, the Tribunal found that the Directive defined central government as one public authority for these purposes, and that communications between departments should be protected as internal communications.
The availability of the exception should not depend on the exact structure and divisions of responsibility within central government, which can change over time. This reflects the origin of the exception in the European Directive. Member states with complex government structures should not be penalised by having to make their interdepartmental communications available, when a state with fewer, larger departments would be able to protect similar communications.
Communications between central government departments and devolved administrations are not internal communications.
In ICO decision notice FER0184525, the Commissioner considered emails between the Department for Trade and Industry and the Scottish Executive or the Welsh Assembly. He found that regulation 12(4)(e) was not engaged. The structure of central government departments was under the control of the Prime Minister through the appointment of his Cabinet, and could be reorganised as he saw fit. However, the devolved administrations were separate bodies pursuing their own objectives and policies, and should therefore be treated as separate bodies for the purposes of regulation 12(4)(e).
Internal communications include communications between an executive agency and its parent department. Communications between executive agencies, or between an executive agency and another central government department, are also internal communications.
Non-departmental public bodies (NDPBs) are separate public authorities. They are created to carry out specific government functions at arm’s length from ministers and are usually set up as separate legal entities, employing their own staff. They are independent of central government departments. Communications between a government department and NDPBs are not internal communications.
In Defra v Information Commissioner & Portmann (EA/2012/0105, 13 November 2012), the Information Tribunal found that communications between Defra and the Marine Management Organisation (MMO) were not internal communications. The MMO had taken over responsibilities formerly carried out by an executive agency of Defra, and the subject matter could be considered internal. But the MMO had been set up as an independent NDPB, and so the exception could not apply.
Wholly-owned companies are separate legal entities and separate public authorities under the EIR. Communications between a public authority and its wholly-owned company are not internal communications.
Communications between separate public authorities, eg central government and a local authority, or two local authorities, do not constitute internal communications.
In ICO decision notice FER0272686, the requested information related to a meeting between Lord Hunt (of Defra) and the Mayor of London. Defra refused the request, claiming that it would involve the disclosure of internal communications. The Commissioner found that, as the Mayor of London was not part of a central government department, communications between him and Defra did not constitute internal communications and regulation 12(4)(e) was not engaged.
Communications between you and a third party, eg an external adviser, a contractor or a lobbyist, do not generally constitute internal communications.
There may be some exceptional cases where particular circumstances might justify an argument that the communication should be seen as internal. This was considered in the following case involving communications with an independent expert:
In DfT v Information Commissioner (EA/2008/0052, 5 May 2009), the request was for the first draft of a transport study produced by Sir Rod Eddington, an unpaid independent expert asked to advise the government on transport and productivity. Although he was an unpaid external adviser with no contract, the Information Tribunal found the draft report was an internal communication. Sir Rod was “embedded” within the civil service, and was acting as the head of an internal working group of civil servants. The source of the study, funding and support were all provided internally, and the decision to publish was made by ministers.
The Tribunal concluded: “In short, Sir Rod was invited into what is referred to as the ‘thinking space’ or ‘safe space’ within which government Ministers and their advisers operate when policy options are under discussion. In this way he had confidential access to Ministers’ and senior civil servants’ views… and was able to take them into account in reaching his own independent expert conclusions. It appears that the Study was, in effect, run and managed by the senior civil servants appointed as team leaders, but that the Study’s overall course and direction was set by Sir Rod who was responsible for its ultimate conclusions and recommendations”. Regulation 12(4)(e) was therefore engaged.
Some communications between a public authority and a limited company were also found to be internal in the specific circumstances of the following case:
In Salford City Council v Information Commissioner and Redwater Developments Limited (EA/2015/0276, 4 July 2017) the Commissioner accepted additional evidence from the public authority, at the appeal hearing, that some communications between itself and a company called Urban Vision were ‘internal’ communications. The public authority provided evidence that, in this case:
- the company had been established as a vehicle by which local authorities commonly discharged their functions, whilst also generating additional revenue;
- it discharged certain core functions on behalf of the public authority which were discharged in no other way;
- it was integral to how the public authority made its decisions and discharged its functions, with its staff effectively operating as officers of the public authority;
- the company was subject to the public authority’s complaints procedures;
- a number of public authority staff were seconded to the company;
- the company’s communications were held on the public authority’s servers and intranet;
- the company was subject to the public authority’s complaints procedures; and
- the public authority’s lawyers took instructions from the company on the public authority’s behalf.
The Commissioner accepted that these circumstances meant that some communications between the parties could be regarded as ‘internal’ communications, but maintained that each communication should be considered on its own merits. The Information Tribunal agreed that the relevant communications were ‘internal’ communications.
These cases are rare. The default position is that communications with third parties are not internal communications.
In East Devon District Council v Information Commissioner and Jeremy Woodward (EA/2014/0072, 5 May 2015), the Information Tribunal considered whether reports prepared by an independent expert into a proposed relocation of council offices were ‘internal’ communications. The Tribunal noted that determining whether communications are ‘internal’ depends on the facts of any particular case, taking into account both the nature of the relationship between the parties and the communications themselves. In this case, the Tribunal found that the author of the reports remained “an external party”, despite being afforded “a significant degree of internal access”. It stated that “he was primarily an independent expert advisor, with that limitation and distinction pertaining at all material times”.
The Tribunal further noted that the Guide to implementing the Aarhus Convention, from which the EIR are derived, expressly states that “studies commissioned by public authorities from related, but independent, entities” cannot be considered as being internal communications.
A communication sent internally and to an external third party is not an internal communication. You have communicated it both internally and externally. The unique feature of an internal communication is that it is only circulated internally.
Communications can be internal if they record discussions with third parties or contain information received from third parties. For example, a note of a meeting with a third party, created and circulated within the public authority for your own use, is still an internal communication. It is the form of the communication that is important, rather than its content.
In DBERR v Information Commissioner and Friends of the Earth (EA/2007/0072, 29 April 2008), the information included minutes of meetings with CBI lobbyists. The Information Tribunal found that the recording of a discussion between a government department and lobbyists was part of an internal communication. Regulation 12(4)(e) was therefore engaged.
If you forward an internal communication to someone outside the public authority, that communication generally stops being classed as internal.
There are exceptions, if:
- there has been an unauthorised leak;
- it was forwarded in error; or
- you are under a statutory obligation to forward it to a third party in confidence.
In these cases, you did not choose to send the communication externally. It would therefore be inappropriate to consider that the communication had lost all protection, or for the EIR to be used to corroborate or publicise a leak. However, the extent to which the information is already in the public domain may affect the balance of the public interest test.
A communication from a third party does not automatically become an internal communication if it is later circulated within the public authority. However, if information from the external communication is later reproduced in a separate internal communication, that separate communication is internal, irrespective of the origin of the content.
In decision notice reference IC-41066-Z4R0, the Commissioner accepted that a report prepared internally at the public authority for consideration by its own governing body, was an internal communication despite including some content supplied by a third party.
If an external communication is forwarded as an attachment to an internal email, the attachment is not usually internal. However, the fact that someone has circulated it within the authority, can bring it within the scope of the exception. Depending on the wording of the request, an attachment which has been circulated internally can form part of the internal communications being requested.
It is an internal communication if it falls within the scope of the request where it specifically seeks communications, including attachments, which have been circulated internally.
A request is made for all documents circulated in advance of a particular meeting. An external report was circulated by internal email. Disclosure of the report in response to this request would disclose the fact that the report was circulated internally in a particular context. It is only relevant because it was attached to the internal email, and therefore the request involves the disclosure of internal communications. Regulation 12(4)(e) is engaged.
These issues often arise with emails sent, copied, or forwarded to multiple recipients.
An internal email sent from an individual within a public authority to multiple recipients within that public authority is an internal communication.
An email sent or forwarded from an individual within a public authority to a third party does not constitute an internal communication, even if they have also sent it within the public authority.
If someone within the public authority has sent an email to a third party with internal recipients blind-copied in, the third party does not know that the sender also sent it to those internal recipients. The main content of the communication is not internal, as the sender has circulated it outside the authority. However, the fact it was also copied internally, and the names of those in the bcc field can be considered an internal communication, because this information is only contained within the emails of the internal sender and bcc recipients.
An email received from a third party does not become an internal communication just because someone later forwards it within the authority. The internal email forwarding it on is an internal communication.
You may need to divide an email chain into internal and external sections for the purposes of applying this exception. You do not need to consider every email separately. If an internal email chain is forwarded or copied to a third party, the whole chain up to that point has been sent outside the public authority and therefore ceases to be an internal communication. It makes sense to look at the latest emails first and work backwards. If the latest emails are internal emails, these constitute internal communications. At the point an email has been sent or copied externally, the whole email chain up to that point ceases to be internal.