Government defends use of 'untraceable channels'

All the Citizens (AtC) and the Good Law Project (GLP) claimed the government’s use of private, non-government communication systems such as WhatsApp, Signal and private email for government business was unlawful. It claimed public records that should be retained were instead deleted or were otherwise not available to be preserved for the public record.

AtC and GLP claimed this contravened the Public Records Act 1958 and the Freedom of Information Act 2000, and was an unjustified breach of various policies in respect of the use of communication systems, and record keeping. They also challenged the content of various government policies authorising the use of instant messaging services, and auto-deletion.

The government, on the other hand, accepted the Prime Minister and other ministers and officials have used private communication systems and made use of auto-delete functions. It accepted there has been non-compliance with policy, but disputed this breached the 1958 Act or 2000 Act.

Ruling in R (oao) All the Citizens & Anor v Secretary of State for Digital, Culture, Media and Sport & Anor [2022] EWHC 960 (Admin), Lord Justice Singh and Mr Justice Johnson dismissed both claims on all grounds but granted permission to appeal in view of the importance of the issues.

Singh LJ and Johnson J found the 1958 Act does not impose an obligation to create or retain any public record until after a decision has been made to permanently preserve it. Instead, there is a discretionary duty ‘to make arrangements’ for the ‘selection’ of certain records. They held the 2000 Act does not create a duty to preserve any record until the point at which someone makes a freedom of information request.

In a statement, the Good Law Project said: ‘The increasing use by ministers, special advisors, and others, of private email accounts, private and auto-deleting messaging services, and personal phones is a blight on any conception of good governance.