The mysterious case of the disappearing Whatsapp messages
If we don't act now, future historians will find the archives empty
Welcome to Keeping the Receipts— a newsletter from the Citizens, written this week by Joanne O’Connor. You can read about the mission behind this here. If you like what you see, consider forwarding it to a friend or two. Or to support our mission, please consider signing up to the paid version.
On 9 September 2019, almost two years ago to the day, journalist Iain Overton emailed the Cabinet press office with a question: were special advisers within No.10 using encrypted software apps such as Whatsapp and Signal to conduct government business? The request was made under the Freedom of Information Act, which states that everybody has a right to access official information and that it should be kept private only when there is good reason.
What followed was a masterclass in obfuscation and stonewalling. The original request was denied on the grounds that it would “exceed costs” to retrieve the relevant information, the second because it was deemed “invalid”. Subsequent requests were refused on the basis that ministries did not hold the information and that disclosure would present a security risk. Iain, who now heads up our investigations team, has written about his ongoing battle for transparency in the Byline Times but – in a nutshell – two years, 50 different FOI requests, five internal reviews and an ongoing complaint with the Information Commissioner later, his question has yet to be answered. At least not by the Cabinet Office.
Since that first FOI request was submitted there has been a steady stream of evidence that government advisers, ministers and even the prime minister conduct official business using Whatsapp and Signal – apps which can be set to automatically delete messages after they’ve been read, hiding them from future scrutiny.
We believe that this poses an urgent threat to the future of the public record and to our democracy. Vital evidence of how the government makes decisions – on the pandemic, on Brexit, on contracts with private companies – is being lost irretrievably. It’s a blatant attempt to dodge accountability, the modern equivalent of shredding vital documents.
Not only is it undemocratic, but it’s unlawful. The Public Records Act of 1958 requires that legal checks be made on all communications between politicians, officials and advisers about government business in case they need to be preserved for future investigations or for historical archives. Here’s Richard Ovenden, the Bodley’s Librarian at Oxford University and president of the Digital Preservation Coalition, sounding the alarm in the FT a year ago:
Ovenden is concerned that the use of encrypted communications in government will leave future historians with “a huge gap” and, more urgently, that it hides the workings of state from public scrutiny. We share his concerns, which is why the Citizens joined forces with the brilliant team at Foxglove to file a ground-breaking lawsuit, challenging the government’s use of “disappearing messages”.
‘Totally f****** hopeless’
Since we first launched legal proceedings and a crowdfunder back in April, yet more evidence has emerged of critical government business being conducted via Whatsapp and private text messages. From this …
To this …
In July it was reported that a minister had deleted “informal communications” with David Cameron about Greensill Capital and the admission by No.10 that health secretary Matt Hancock had used his private email for official business prompted the Information Commissioner’s Office to launch an investigation at the Department of Health and Social Care.
In August the Guardian ran a story about Lord Bethell replacing his mobile phone before it could be searched for information relating to the award of £85m of contracts for Covid tests.
And as if that wasn’t damning enough, the Times recently revealed a key piece of evidence uncovered by our legal action – that Boris Johnson and senior ministers were warned two years ago not to conduct official government business on their personal phones or messaging apps.
Perhaps we shouldn’t be shocked at the revelation that the PM is blithely ignoring his own national security guidance. After all, this government has form when it comes to breaking its own rules. But the secrecy around ministerial communications is part of a much wider erosion of public accountability and transparency and we ignore it at our peril.
As Iain’s two-year quest to get an answer to a simple question illustrates, our current Freedom of Information legislation is simply not fit for purpose. Introduced in 2005 under Tony Blair, the FOI act has come under repeated attacks as successive prime ministers have sought to limit the scope of its powers. Even Blair, who championed FOI in his 1997 election campaign, admitted in his autobiography that he instantly regretted introducing the legislation (calling himself a “nincompoop” for not foreseeing that it would reveal the skeletons lurking in Labour’s cupboard) while Cameron described it as “furring up the arteries of government”.
But it’s under Boris Johnson’s government that FOI has faced the most damaging onslaught. The Institute for Government reported that just 43% of FOI requests were answered in full in the first three-quarters of 2020, compared with 64% when the act came into effect in 2005. OpenDemocracy has exposed and campaigned against the use of a controversial ‘clearing house’ within the Cabinet Office which flags up FOI queries from journalists. And even when the letter of the law has been obeyed, all too often the spirit has not, as government departments become adept at dodging and delaying FOI requests.
Without a functioning FOI system we have no way of holding our government and its officials to account. And without proper safeguards for digital communications, archivists have no way of preserving for the public record the processes behind government decisions.
In a letter of support for our legal action, Nicholas Poole, CEO of the Chartered Institute of Library and Information Professionals (CILIP), set out his concerns about government use of technology platforms that are “not in themselves accountable, which have not been developed by experienced information professionals and which fundamentally lack appropriate mechanisms for scrutiny or accountability (and indeed, have the avoidance of accountability built-in as core functionality)”. He concludes with a stark warning:
“We believe that, alongside the rule of law and the accountability of our institutions, the integrity of the public record is the absolute bedrock of a functioning democracy.
This is, quite intentionally, a high bar. Once this principle is eroded, public trust and accountability are quickly also impaired.”
So what comes next?
We now know that the prime minister of the UK considered his health secretary “totally fucking hopeless” but was happy to leave him in charge during the biggest health crisis of the last 100 years. But we know this only because Dominic Cummings, an unelected adviser employed in an unspecified role, happened to screenshot his private Whatsapp exchanges with the PM. How many more such exchanges have been lost in the ether?
A crucial next step in our campaign is to persuade a judge that our legal challenge is in the public interest. We’ve launched a petition with Foxglove calling on Boris Johnson to ban the use of disappearing messages across government; to keep proper records of government discussions on any app used for government work; and to respect the Public Records Act and the Freedom of Information Act. Every signature helps support our case so we’d be grateful if you could add yours here.
Transparency is key to the functioning of a normal democracy. It’s at the heart of our mission at The Citizens and it’s why we intend to continue to pursue this battle through the courts. If you would like to support our mission, please consider donating to our crowdfunder for this legal case or subscribing to our newsletter. Thank you.