The government has won an appeal over the right to use WhatsApp and private emails for official government communication. The main finding by the Court of Appeal was that there was no implied duty of the government to retain records under the Public Records Act.
This follows a decision made by the High Court in April which found that the law on keeping public records said nothing about the use of personal devices. It also ruled that the use of auto-delete software was not unlawful.
The Good Law Project, which brought the appeal to the Court of Appeal, argued that decisions made by the government are a matter of public importance. They also argued that most of the policies within the Public Records Act 1958, Section 3, lawfully mandated ministers not to use private emails or private electronic devices when conducting government business.
The Public Records Act 1958 is an act of parliament which forms the main legislation for governing the keeping of public records. While previously, the government had the right to keep records for 30 years, the Freedom of Information Act 2000 gives a public right of access to information which is held by public authorities.
The Good Law Project stated that decisions made in the pandemic, such as the spreading of Covid-19 in care homes and the awarding of public health contracts, many of which were given to close acquaintances of ministers, have been lost. This involved communication between the then Prime Minister, Boris Johnson, former Health Secretary Matt Hancock, and the PM’s Chief Adviser, Dominic Cummings.
Furthermore, they said that the use of non-government communication systems and the failure to keep a record of them undermined the government’s ability to comply with the Freedom of Information Act. This is because it is not possible for the public to acquire documents through a freedom of information request if they have not been kept through communication on applications such as WhatsApp.
The judges ruled that ministers have no obligation to comply with government policies for dealing with communications and whether they have to record them. They pointed to the 1958 Public Records Act and stated that this determines that there was no duty on ministers and civil servants to store the messages that they send to each other.
They also stated that it was “not the constitutional role of the courts to attempt to micromanage how the executive conducts its affairs in the selection and preservation of documents, or in the use of communications technology by ministers and officials.”
The Court of Appeal also found that it should be up to the executive to decide whether there should be more consistency between the internal policies which the government is supposed to hold itself to, and its actions. This points to the courts taking a non-interventionist role in constitutional law.
The Good Law Project responded to this judgement, stating that they planned to appeal to the Supreme Court, “given the profound importance of the issue — and the gaping hole in the protection of the public interest exposed by the ruling.”
Although the Court of Appeal held that internal government policies are not law, and are therefore not legally enforceable, clearly there is a conflict of interest between the Freedom of Information Act and the continued use of government communication on apps which can allow disappearing messages such as WhatsApp.
The efficiency of apps like WhatsApp may make government more effective, as argued by the government. However in a free and open democracy, it can be argued that there should be a built-in level of transparency and accountability imposed on government decision making. Furthermore, the deletion of government communication may hinder scrutiny of the government’s performance in the pandemic for the Covid-19 inquiry.
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