Scotland’s information watchdog has launched an investigation into the mass deletion of WhatsApp messages sent by Nicola Sturgeon and other SNP ministers and civil servants during the pandemic.
David Hamilton said evidence disclosed to the UK Covid Inquiry raised “significant practical concerns” about deleting unofficial communications.
The Scottish Information Commissioner said his office had launched an “intervention” into the failure of SNP ministers and officials to “hide or even record their entire decision-making process”.
He said the mass deletion, which Ms Sturgeon admitted to during the lengthy evidence session, “not only deprived the Inquiry of information” but also meant the public could not access it.
The move aims to improve the Scottish Government’s culture and practices when dealing with Freedom of Information (FoI) requests.
But Mr Hamilton said he would investigate possible breaches of FoI laws that emerged during the intervention. It is a criminal offense to destroy or conceal a record to prevent its disclosure in response to a FoI request.
Discretion
Ms Sturgeon and former deputy prime minister John Swinney are among senior figures to admit they have deleted all WhatsApp messages from the pandemic. He promised at a press conference in August 2021 that these would be turned over to a future investigation.
They argued they were following guidance from the Scottish Government, which advised them to put “salient” points in their messages into the official record before destroying them. This gave them discretion over what to keep.
The investigation also showed online conversations between senior civil servants and advisers in which they agreed to delete their messages so they would not be “discoverable” under the FoI.
First Minister Humza Yousaf has ordered an external review into the use of unofficial messages but the information commission’s action is independent of the Scottish Government.
Mr Hamilton said: “The evidence disclosed over the last few weeks during Module 2A of the UK Covid-19 Inquiry hearings raises significant enforcement concerns that require further investigation by my office.”
accountability
He added: “It is clear from this week’s events that the use of informal communication channels poses risks to transparency and accountability within government.”
The intervention will “review current practices, as well as identify steps to be taken to ensure improvements are made in how officials and ministers use and maintain informal communication in the future.”
Mr Hamilton told BBC Radio Scotland it was not a “hostile process” but warned that “if further issues arise during the investigation process we will of course investigate those and respond to them appropriately.”
However, he was forced to deny that he had a conflict of interest as he previously led the Scottish Police Federation (SPF); this was heavily criticized by Mr Yousaf in messages shown to the inquiry.
Mr Yousaf, then Justice Minister, described the organization as a “disgrace” in a WhatsApp message exchange with John Swinney in June 2020. He said the SPF had displayed “arrogant and reactionary thinking” during the pandemic.
Mr Hamilton, a former police officer who headed the SPF at the time, said these were “heated times” and he did not take the criticism personally. He became information commissioner last October.
The public was misled
Scottish Conservative Party chairman Craig Hoy said: “For too long the SNP has misled the public and sought to avoid accountability. “They have disgracefully betrayed bereaved families and I hope this investigation will reveal the serious failings and secrecy at the heart of the SNP.”
The investigation showed messages dated August 27, 2020 from a WhatsApp group; Among these messages, Ken Thomson, a senior civil servant in the Scottish government, told colleagues: “I would like to remind you (seriously) that this may be discovered under FOI (Freedom of Information). Know where the ‘clear chat’ button is.”
He later said: “Plausible deniability is my middle name. Now clean again”. He also said “this information you have requested is not held centrally”, a stock phrase used by the Scottish Government when rejecting FoI requests.
In another WhatsApp conversation on 13 May 2021, Mr Thomson again warned colleagues that their discussions were being covered under FoI.
“At this point I would like to remind you that this channel is recoverable with FoI,” he said, then added an emoji with a zippered mouth.
One of his colleagues shouted “Clear the chat!” Prof Jason Leitch, Scotland’s national clinical director, added: “Deleting WhatsApp is a bedtime ritual.” Ms Sturgeon told the inquiry last week that stock markets were “reluctant”.
A Scottish Government spokesman said: “We have not yet received notification from the Scottish information commissioner, we will respond when we receive this and will of course liaise with the commissioner where necessary.”
He added: “The Prime Minister has launched an externally led review into the use of mobile messaging apps and non-enterprise technology in the Scottish Government. This will take particular account of the government’s interaction with statutory public inquiries.”