Is private email used by government ministers or prime ministers accessible to freedom of Information (FOI) requests? Malcolm Turnbull’s office is only certain that this may "potentially" be the case. Experts are even less sure.

The issue has risen in prominence considering extensive date over Hillary Cinton’s use of a private email server during her time as US Secretary of State

Following the Mr Turnbull’s defence of his ongoing use of a personal email domain, IDM sought some expert opinion from specialists in the field.

Mr Turnbull’s office has issued a statement saying "All communications or records of a minister which relate to his or her duties are (subject to many exemptions) potentially subject to FOI whether it is on SMS, a private email server or a government email server".

In a presentation to the Records & Information Professionals Australasia annual conference in 2014, Elisa Hesling, an Associate at Solicitors and Consultants, FOI Solutions, observed that “Possession of documents is all important in both records management and FOI. When documents are in the possession of an agency they can be accessed through FOI.

“As a concept, possession may be as simple as being in physical possession or custody of an object. However, at law another form of possession exists. Constructive possession may occur where although there is no physical possession, a person or organisation has a right to control an object held by another. An example of constructive possession is where objects are housed at an off-site storage service which under contract must look after the objects for you until you want to remove them. 

“The Victorian case of Mildenhall v Department of Premier and Cabinet (No 2) held that an agency will be in possession of a document for the purpose of FOI not only when it has physical possession but also when it has constructive possession. The majority of Australian jurisdictions have approved the Mildenhall decision in cases considering when an agency is in possession (see breakout panel). 

“From FOI legislation, we understand that the public only has a right to access documents that are in a government agency’s possession. From Mildenhall, we understand that the right of access is to documents in the physical possession, as well as the constructive possession, of an agency.”

Melanie Olynyk, a partner at national law firm Maddocks, has extensive experience acting for government clients, including local government, state government and statutory authorities.  She specialises in governance and administrative law, and has appeared or instructed in numerous proceedings before VCAT and the Supreme Court in a range of areas, including freedom of information, privacy and valuations.

“It is correct that the concept of ‘possession’ is important in both records management and FOI.  When documents are in the possession of an agency, they can be accessed through FOI,” said Olynyk.

“This extends beyond ‘actual or physical’ possession to what is known as ‘constructive’ possession.  That is, a right and power to deal with the document in question, or an immediate right of possession.  So, for example, an agency will be in constructive possession of documents where the documents have been created by someone in their ‘official’ capacity and capable of being reproduced by the agency.

“In this context, provided the SMS or email can be reproduced by the agency (e.g. downloaded, printed, etc) and it relates to ‘official’ business, it would be subject to access through FOI.

“From a practical perspective, this might not be possible to do with emails located only on a private email server.”