Member Article

Don't bin it! Disclosure and deleted electronic information

In the recent case of Mr P Harper -v- Information Commissioner a Royal Mail employee wanted to know how often his personal file had been requested over a certain period of time. The Information Tribunal (“the Tribunal”) found that the Royal Mail did not hold the information and rejected the appeal, but issued a judgment about deleted electronic information.

The Tribunal held that public authorities may, in some instances, be required to retrieve deleted electronic information from back-up systems or shadow copies, and should routinely take simple steps to recover deleted items such as e-mails.The Tribunal commented that where deleted electronic information which an applicant has requested is still retrievable, then the deleted or original version should be recovered, unless it had actually been eliminated from a system (i.e. by being overwritten).

• Using the computer’s operating system to set restore points.
• Using back-up tapes.
• Using special software to “un-delete” or “recover” information.

This decision follows hard on the heels of a similar amendment to the law as identified by David Hankin in his bdaily article on electronic disclosure in litigation in October 2005. In his article, David explained that electronic information is now subject to disclosure and electronic information includes deleted information. Although the Tribunal’s decision applies to public authorities, who are subject to the Freedom of Information Act 2000, this decision has wider significance as the Tribunal has provided guidance on deleted electronic information which the courts are likely to adopt for the purposes of disclosure.

Any business which is involved in litigation and is subject to a disclosure order will have to perform a reasonable search for deleted electronic information to comply with that order. Businesses should therefore review their document retention policies to ensure that they have in place adequate procedures for dealing with deleted electronic information.

If you have any queries relating to this article please contact Nicholas Gemmell at Watson Burton LLP(nicholas.gemmell@watsonburton.com).

This was posted in Bdaily's Members' News section by Ruth Mitchell .