The policy change does not go so far as to prohibit the use of automatic deletion functionality around messages
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The public inquiry into Covid has called for all WhatsApp messages exchanged by ministers and other crucial individuals involved in the pandemic response. Baroness Hallett, the chair of the independent investigation, expressed her resolve to thoroughly examine communications on the popular messaging platform. In response to concerns from a KC representing families in Scotland who lost loved ones to the virus, the retired judge assured that the inquiry would carry out an exhaustive investigation and analysis of the implications of these messages for the UK population.
Meanwhile new Cabinet Office policy was recently published providing guidance on the use of instant messaging technologies, such as WhatsApp, by Government officials. The policy discourages the use of non-corporate communications channels, particularly when these platforms are accessed on personal devices, in a bid to improve regulation of ‘government by WhatsApp’.
The guidance was issued in response to investigations by the Information Commissioner’s Office, concerns highlighted repeatedly by Byline Times, and litigation by advocacy groups such as The Citizens over the Government’s use of these channels.
It is intended to make civil servants – including special advisors and ministers – better comply with the 1958 Public Records Act 1958, the 2000 Freedom of Information Act and the common law duty of candour.
In recent years, it has become clear that instant messaging technologies have played a key role in the way government is conducted. The widespread use of these platforms has raised concerns about transparency and accountability in decision-making.
Boris Johnson’s former chief advisor Dominic Cummings, for instance, claims he was never asked to share his WhatsApp conversations with the Cabinet Office despite repeated Freedom of Information requests asking for them by Byline Times. That claim raised questions about whether the Cabinet Office’s FOI team deliberately failed to follow protocols to avoid the sort of WhatsApp revelations seen in the Matt Hancock Telegraph leaks.
WhatsApp messages sent by former Health and Social Care Secretary Matt Hancock were leaked by political pundit Isabel Oakeshott, providing insight into the inner workings of the Government during the pandemic. The messages included conversations with ministers and officials on various topics such as testing, lockdowns and school closures.
Several other high-profile present and former officials have also been identified as using private messaging apps to conduct government business.
The new Cabinet Office guidance replaces the previous policy that encouraged the use of automatic deletion instant messaging technologies by ministers. It demonstrates a significant change in the Cabinet Office’s approach to this technology, emphasising that “government communications belong to the Crown and must be handled lawfully”.
However, the policy does not go so far as to prohibit the use of automatic deletion functionality, which means that whether a message is retained or not in any particular case will be subject to the discretion of the governmental official in question.
The use of private messaging apps by UK government officials to conduct business also raises concerns about transparency and accountability. The Freedom of Information Act allows requesters to ask for any information held by a public authority. Public authorities may refuse an entire request if it is too costly, vexatious or a repetition of a previous request. The Act also includes an exemption for personal data that conflicts with the UK GDPR or Data Protection Act.
However, avoiding FOI requests has become a “political strategy in its own right”, according to Conservative MP David Davis, who has called for the strengthening of the Freedom of Information Act.
Byline Times is currently testing the limits of this new policy, requesting No 10’s special advisor’s WhatsApp messages during the March 2023 Privileges Committee investigation into former Prime Minister Boris Johnson.
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