Ministers using disappearing WhatsApp messages could face criminal sanctions: Information Commissioner

In an evidence session conducted by the Public Administration and Constitutional Affairs Committee this week (6 June), Information Commissioner John Edwards reiterated concerns that the use of private communication channels for Government business could result in records being lost.

In response to a question from the Committee's chair, William Wragg MP, on what the sanctions would be if a minister was found to be discussing Government business using disappearing messages, Edwards said: "It is a little perilous for me to speculate on hypotheticals, but there are criminal sanctions for failing to maintain a record or destroying a record."

The issue of Government officials using communication channels such as WhatsApp, has been propelled into the spotlight recently after the Cabinet Office launched a judicial review over the Covid-19 Inquiry's request to see Boris Johnson's WhatsApp messages.

Prior to its judicial review challenge, the Cabinet Office issued guidance on using 'non-corporate communication channels' (NCCCs) for government business, which noted that Departments should reduce the need for them and "Government communications belong to the Crown and must be handled lawfully".

When asked whether the guidance provides reassurance and guarantees transparency within government, Edwards said: "I do think that they go some way towards that. I do think that it's important that government business has the benefit of new technologies that improve efficiency.

"But we need to go into those deliberately supported by policies that ensure the security of the data and the maintenance of the public record."

He later noted that: "[The] Cabinet Office is pretty clear that if it is government business that is being conducted on a non-corporate communication channel, it must be retained as part of the official records. So no, they shouldn't be using disappearing messages in the conduct of government business."

Edwards added: "The Cabinet Office guidance requires that if a non-corporate communication channel is used for government business, a copy should be forwarded to the official record, and that means that there's an ongoing duty for ministers and others to consciously assess the content of their message."

He noted that a casual conversation about coffee, for example, does not need to be forwarded to the record, "but a discussion setting up a meeting in which a decision is to be made ought to form part of the official record".

Lloyd Russell-Moyle MP posited a scenario in which one party might insist on using disappearing messages without the recipient's consent, to which the Commissioner said the recipient "faces a choice about whether they continue to use that channel of communication with that individual".

Russell-Moyle also compared the use of WhatsApp to spoken correspondence, noting that: "In spoken correspondence, you wouldn't necessarily record the oral conversation, but you would record a conversation took place. WhatsApp really is used as spoken correspondence, is it not? Rather than written correspondence."

In response, Edwards said: "No, I would disagree with that. I mean, the Freedom of Information legislation is very clear that it depends on the presence of a written record.

"The coverage of the FOI requires a record. A WhatsApp message is a record. It may have the cadence and informality of speech, but it is not speech."

He added that WhatsApp voice notes should also be kept.

Alongside his comments, the ICO reiterated a call for a full review of the use of private communication channels for government business, first made in July last year.

Adam Carey