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R (All the Citizens) v Secretary of State for Digital, Culture, Media and Sport & anor; R (The Good Law Project) v The Prime Minister & ors [2022] EWHC 960 (Admin)
The claimants brought a judicial review of the government’s use of non-governmental communications systems, such as the WhatsApp and Signal messaging platforms. They argued that the government’s practice of using such platforms, and in particular the use of automatically deleting messages, was incompatible with the statutory duty under s. 3(1) of the Public Records Act 1958.
However, Singh LJ and Johnson J held that s. 3(1) created a duty to make arrangements for the selection of certain records for preservation in the public interest. That was different, in the Court’s view, from a duty to preserve records per se. It was also different from a duty to require the production of a record of something, such as a conversation, in the first place.
In addition, the High Court held that the duty attached to documents that had already been selected for preservation, rather than a duty to preserve records pending selection for permanent preservation.
Therefore, whilst the discretion inherent in s. 3(1) to make arrangements was not unlimited, and had to be governed by the conventional principles of public law, the provision did not regulate the minutiae of precisely what must be preserved. Nor did it confine the ways in which public authorities communicated prior to reaching the stage where records were selected for permanent preservation.
Therefore, whilst the discretion inherent in s. 3(1) to make arrangements was not unlimited, and had to be governed by the conventional principles of public law, the provision did not regulate the minutiae of precisely what must be preserved. Nor did it confine the ways in which public authorities communicated prior to reaching the stage where records were selected for permanent preservation.
The High Court further concluded that the Freedom of Information Action 2000 (“FOIA”) was of no assistance to the claimants, because the general right of access under s. 1 did not arise if the record in question no longer persisted. (Although the Court did note that, of course, purposefully deleting a records to prevent disclosure under the FOIA regime may give rise to a criminal offence, per s. 71 FOIA.)
Finally, the Court reviewed a large quantity of government guidance and the like, which set out parameters for the use of ephemeral messaging functions and communications systems. The Court cited the recent case of R (A) v Secretary of State for the Home Department [2021] UKSC 37 and held that the documents in question were not enforceable as a matter of public law, as they were “policies which govern the internal administration of Government departments and do not involve the exercise of public power”.
Mr Justice Johnson is a former member of 5 Essex Chambers.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
