Independent senator David Pocock says the use of encrypted messaging platforms by politicians to avoid scrutiny is damaging to Australian democracy, urging the government to act on recommendations from the information commissioner and the National Archives that such messages should be retained.
In a report on Wednesday from the Office of the Australian Information Commissioner (OAIC) and the National Archives, a survey of 22 government agencies found 16 allowed use of messaging apps, three did not allow their use, and three did not have a policy.
Of the 16 agencies, eight had policies around the use of these apps and, of those, five did not address security classification requirements, six did not address archive requirements and five did not address FoI search requirements.
The report has recommended agencies review or develop policies for encrypted messaging apps and address issues around retention of information for FoI purposes. The two agencies will re-examine the issue in two years.
Pocock urged the Albanese government to give “careful attention and prompt action” to the report, saying there were strong probity and transparency arguments for keeping records of all communications related to government decision-making.
“The use of messaging apps to deliberately avoid scrutiny through freedom of information is deeply concerning and will have long-term negative impacts for the health of our democracy, good governance, and the accountability of our decision-makers,” he said.
When Kevin Rudd was lobbying the then Turnbull government to advocate for Rudd to be appointed United Nations secretary general in 2016, it was reported in letters Rudd released that Rudd and Malcolm Turnbull had communicated about the matter over encrypted app Wickr.
A freedom of information request seeking access to these messages was ultimately rejected by the prime minister’s office, stating the messages could not be found.
In a separate 2021 decision by the then information commissioner, Angelene Falk, the government claimed it could not find reported WhatsApp communications between the then foreign affairs minister, Marise Payne, and her Indonesian counterpart related to the Morrison government’s decision to recognise West Jerusalem as the capital of Israel.
The rise of encrypted messaging apps that have messages set to delete has presented a problem for freedom of information requests. If crucial government communications are sent over apps such as Signal and WhatsApp and are not retained, they cannot be obtained under FoI, and are also unable to be retained for the purposes of the National Archives.
For FoI decisions where it is found that the documents have not been retained, the OAIC has no powers to penalise government officials for failing to retain the information, with responsibility falling to the National Archives under the Archives Act.
But to date it has not been enforced in previously identified cases.
The Australian information commissioner, Elizabeth Tydd, acknowledged that a view held by some agencies – that not every communication needs to be considered a public record subject to FoI – needs to be balanced with the public interest.
“There can be a privacy preserving dimension, if those records are destroyed, and so this holistic approach to information governance, inspired by digital government and our digital era, really needs this kind of joined up approach.”
Tydd indicated public servants would have a role in ensuring their ministers’ offices retained messages.
“We have an act, the FoI Act, that actually recognises that government information is a national resource and should be used for public purposes,” she said.
“So that’s a real strength, and bringing that to the table in this report, coupled with the APS values of stewardship … really ensure that if we equip the [Australian public service] to do this well, with joined up guidance, then we have greater transparency, greater accountability and a more participative, healthier system of democracies.”
A spokesperson for the National Archives said the agency “takes seriously any known cases of unauthorised disposal of government records regardless of technology used to create them”.
