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Government faces legal challenge over ministerial use of self-deleting messages on Signal, WhatsApp  

Ministers who use messaging platforms that delete correspondence automatically have been threatened with legal action by a non-profit organisation over concerns about transparency and democratic accountability in government.

The investigative journalism non-profit, 'the Citizens', said it had sent a legal letter in response to reports which suggest a growing share of government business is done on instant messaging services, such as WhatsApp and Signal, that delete messages automatically after being read or after a short period of time.  

Sent last week (25 March 2021), the letter asks the Minister of State for Media and Data to provide documentation that shows government departments have arrangements to preserve instant messages to ensure compliance with the Public Records Act 1958 and the Freedom of Information Act 2000.

The Public Records Act 1958 (under section 3), as well as the UK's Freedom of Information law, require messages between ministers to be retained, so it can be determined whether they should be archived for posterity and released to the public. But using an app in which messages instantly delete means that the legal analysis required can never be performed, because the message is irretrievably lost, the Citizens said.

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Reports of government ministers using private platforms, including text messages and private emails, for government business date back to 2011 when the Information Commissioner warned such practices should be "actively discouraged". More recently, in September 2019, an MP asked ministers to release correspondence made on private services including WhatsApp, Telegram, Signal, Facebook messenger and private email accounts and others relating to the prorogation of Parliament.

The Citizens' letter requests a response within 14 days. According to the group, if the government's response is unsatisfactory, it may proceed to a judicial review.

"This entire period of British history is going to be one giant black hole," a spokesperson for the Citizens said.

"We are in an unprecedented national emergency and we are going to have no records of how decisions were made or even who made them."

The spokesperson added: "Government business is being conducted under a cloak of secrecy enabled by the tech platforms. The only way we can have any hope of holding power to account or even simply maintaining the historic record is through transparency. We desperately need to challenge what we believe is a clear breach of the law on behalf of both Britain's investigative journalists and its future historians."

Foxglove, a non-profit organisation that pursues justice in technology, is also supporting the Citizens' legal action.

Cori Crider, Director of Foxglove, the tech-justice group representing the Citizens, said: "We are delighted to be teaming up with the Citizens and hope legal action won't be necessary. But we're deeply concerned by this government's approach to data - it seems to involve collecting more and more information on all of us, while we have less and less information on our own representatives. This turns democracy on its head.

"Privacy is for the people – transparency is for the government. And if we have to sue to tip the scales back in favour of the citizen, so be it."

A Cabinet Office spokesperson said: "Records of official communications are retained in accordance with the relevant publicly published guidance.

"There are appropriate arrangements already in place and this is kept under periodic review."

The Cabinet Office guidance to departments has existed since 2013; it lays out the need for government information to be handled in accordance with the requirements of the Official Secrets Act, Freedom Of Information Act (FoIA), Data Protection Act and Public Records Act.

The Citizens are represented by Rosa Curling, Foxglove Director and a consulting solicitor at Scott Moncrieff and Associates, and Ben Jaffey QC and George Molyneaux of Blackstone Chambers.

Adam Carey

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