Scotland launches investigation into deleted pandemic WhatsApp messages

Scotland’s information commissioner says failure to keep records may breach Freedom of Information laws

Scotland’s information watchdog has launched an inquiry into the mass deletion of WhatsApp messages sent during the pandemic by Nicola Sturgeon, other SNP ministers and their civil servants.
David Hamilton said evidence disclosed to the UK Covid Inquiry raised “significant practice concerns” around the deletion of informal communications.
The Scottish Information Commissioner said his office had launched an “intervention” into the failure of SNP ministers and officials to “retain or even record a complete set of the decision-making processes.”
He said the mass deletion, which Ms Sturgeon admitted during her marathon evidence session “had not only deprived the Inquiry of information” but also meant the public could not obtain it.
The move is aimed at improving the Scottish Government’s culture and practices when dealing with Freedom of Information (FoI) requests.
However, Mr Hamilton said he would investigate any potential breaches of FoI laws that emerged during the intervention. It is a criminal offence to destroy or conceal a record with the intention of preventing it being disclosed in response to an FoI request.
Ms Sturgeon and John Swinney, her former deputy first minister, are among the senior figures to admit that they had deleted all their WhatsApp messages from the pandemic. She pledged during an Aug 2021 press conference they would be handed over to a future inquiry.
They argued they were following Scottish Government guidance that advised them to transfer “salient” points from their messages to the official record before destroying them. This gave them discretion over what was retained.
The inquiry was also shown online conversations between senior civil servants and advisors in which they agreed to delete their messages so they were not “discoverable” under FoI.
First Minister Humza Yousaf has ordered an external review into the use of informal messaging but the information commissioner’s action is independent of the Scottish Government.
Mr Hamilton said: “The evidence disclosed during module 2A of the UK Covid-19 Inquiry hearings over the last few weeks raises significant practice concerns which warrant further investigation by my office.”
He added: “It is evident from this week’s events that the use of informal communication channels presents risks to transparency and accountability within government.”
The intervention will “review current practices as well as identifying actions to be taken to ensure improvements are made in relation to how officials and ministers use and retain informal communications in future.”
Mr Hamilton told BBC Radio Scotland this was not an “adversarial process” but warned that “in the process of investigation, if other matters appear, we will of course, investigate those and respond to those appropriately.”
However, he was forced to deny he had a conflict of interest as he previously led the Scottish Police Federation (SPF), which was heavily criticised by Mr Yousaf in messages shown to the inquiry.
Mr Yousaf, who was then Justice Secretary, called the organisation a “disgrace” during a WhatsApp message exchange with John Swinney in June 2020. He said the SPF had displayed “an arrogance and retrograde thinking” during the pandemic.
Mr Hamilton, a former police officer who chaired the SPF at time, said they were “heated times” and he had not taken the criticism personally. He became information commissioner last October.
Craig Hoy, the Scottish Tory chairman, said: “For too long the SNP have misled the public and tried to avoid accountability. They have disgracefully betrayed bereaved families and I hope this investigation exposes the serious failings and secrecy at the heart of the SNP.”
The inquiry was shown messages from a WhatsApp group dated Aug 27, 2020 in which Ken Thomson, a senior Scottish Government civil servant, told colleagues: “Just to remind you (seriously), this is discoverable under FOI (Freedom of Information). Know where the ‘clear chat’ button is.”
He later remarked: remarked: “Plausible deniability is my middle name. Now clear it again”. He also said “this information you requested is not held centrally”, a stock phrase the Scottish Government uses when refusing FoI requests.
In another WhatsApp conversation dated May 13, 2021, Mr Thomson warned his colleagues again their discussions were covered under FoI.
“I feel moved at this point to remind you that this channel is FoI-recoverable,” he said, followed by an emoji with a zipped mouth.
One of his colleagues replied “Clear the chat!” before Prof Jason Leitch, Scotland’s national clinical director, added: “WhatsApp deletion is a pre-bed ritual.” Ms Sturgeon last week told the inquiry the exchanges were “light-hearted”.
A Scottish Government spokesman said: “We have not yet received the notice from the Scottish information commissioner, when we do so we will respond and, of course, cooperate with the commissioner as required.”
She added: “The First Minister has commissioned an externally-led review into the use of mobile messaging apps and non-corporate technology in the Scottish Government. This will take particular account of government interaction with statutory public inquiries.”