On 20 March 2019, the Administrative Jurisdiction Division of the Dutch Council of State (‘Division’) rendered a judgment (ECLI:NL:RVS:2019:899) holding that text and WhatsApp messages fall within the scope of the current definition of ‘document’ given in the Dutch Government Information (Public Access) Act (Wet openbaarheid van bestuur, ‘Wob’) and are therefore accessible under the Wob. This applies to text and WhatsApp messages on work telephones and private telephones of administrators and civil servants. What practical implications does this have for the legal and administrative practices?
Under Section 3 of the Wob, anyone may apply to an administrative authority or to an agency, service or company carrying out work for which it is accountable to an administrative authority for information contained in documents concerning an administrative matter. The Wob defines ‘document’ as “a written document or other material containing data which is deposited with an administrative authority” and according to Parliamentary history this term must be interpreted broadly. Aside from written documents, the definition of ‘document’ also includes audio recordings, video recordings, punch cards, floppy disks, CD-ROMS, photo material, email messages and digital information.
As evidenced by Parliamentary history, the legislature took into account the fact that the development of computer engineering would likely lead to new data carriers. As such, the Division’s ruling that given that the term ‘document’ must be interpreted broadly, the only possible conclusion is that text and WhatsApp messages are ‘other’ material containing data did not come as a surprise. What is interesting, however, about the judgment of 20 March 2019 is the ruling concerning the second element of the term, i.e. “deposited with an administrative body”.
The Division held that text and WhatsApp messages on the work telephones and private telephones of administrators and civil servants are deposited with an administrative authority if the contents of the messages concern an administrative matter. Where such messages are on work telephones, these messages are already deposited with the administrative authority. In the case of private telephones, the text and WhatsApp messages should be deposited with the administrative authority. According to the Division, an administrative authority may be expected to take all reasonable action to as yet trace these documents and in its capacity as employer the administrative authority is responsible for deciding how this will be given shape in its relationship with its employees. According to the Division, the administrative authority can draft work protocols on how to deal with messages on telephones and what to do with work-related messages.
To help practitioners, the Division has made two suggestions for such a work protocol: a) where necessary, employees who use their private telephones to send and receive work-related messages, must transfer these messages to their employers, or b) employees will only use their work telephones for work-related messages. However, these suggestions raise evidentiary problems.
In view of the great importance attached to public access, an administrative authority must clarify how it searched for the requested information. The Wob does not contain specific rules for that purpose.
If the administrative authority conducts a search and concludes that certain documents are not in its possession and that statement is not implausible, the party requesting the documents must make a plausible case that certain documents are in fact in that administrative authority’s possession. Although having a work protocol may contribute to the plausibility of an administrative authority’s position that it is not in possession of certain documents, we believe that the mere reference to the work protocol will not suffice to deem that position ‘not implausible’. In our opinion, the mere fact of having a work protocol does not provide sufficient safeguards to ensure that all work-related text and WhatsApp messages will in fact be deposited with the administrative authority, since even a detailed work protocol does not exclude the possibility that work-related text and WhatsApp messages will – in violation of that work protocol – still be sent from private telephones or that not all text and WhatsApp messages will be transferred to the administrative authority. Moreover, how can the administrative authority guarantee that work-related text and WhatsApp messages will not be deleted? And who will monitor that?
The Wob deems the importance of disclosure for a proper and democratic decision-making process to be a stand-alone interest whose weight is not dependent on the subject to which the documents relate, since openness and public access make it easier for citizens and companies to participate in the decision-making process and, as a corollary, guarantee greater legitimacy of administrative authorities in respect of citizens and companies in a democratic system. As such, it strengthens the principles of democracy and respect for fundamental and other rights.
To offer a requesting party a genuine chance to make a plausible case that certain documents are in fact in the administrative authority’s possession, we believe the administrative authority must provide verifiable and reproducible details about the search conducted. This must be possible where it concerns the administrative authority’s own systems. Given that the administrative authority knows it owns systems, it can conduct an exhaustive search in those systems.
In that connection, we refer to unrequested advice recently given by the Advisory Division of the Dutch Council of State about the effects of digitisation on relationships between the government and citizens. In its advice, the Advisory Division recommends developing and using a new principle of proper administration, being the right to access and have meaningful contact with the government. We believe that principle could also be relevant for situations such as the one discussed here where citizens in all likelihood do not and the administrative authority in all likelihood does know the way around the government’s digital and other systems. It follows from the aforementioned advice that the right to access and have meaningful contact with the government must play a role in ensuring that citizens are able to exercise their rights (the advice concerned access to personal data) in a simple and effective manner.
The new principle could draw on the UK’s Freedom of Information Act. According to the Guidance to that Act, an independent commissioner is appointed in cases involving alleged incomplete searches, which certainly include these types of digital situations. The commissioner must assess the credibility of the administrative authority’s position and must in that connection devote attention to:
- the scope, quality, thoroughness and the results of the searches; and
- other explanations that the administrative authority has given for the non-existence of the information or the information no longer being available.
The commissioner must also examine the question of whether the administrative authority has searched for the correct information based on the request for disclosure.
This way it can be determined objectively whether the values we all stand for are met: the right to access and have meaningful contact with the government.
Where it concerns private telephones of civil servants, this will probably lead to challenges on account of employment law and privacy rules. Therefore, we have our doubts about the Division’s statement that the privacy aspect does not present a problem because searches do not concern the entire private telephone, but only the information on those telephones in so far as it concerns administrative matters and is intended for the administrative authority.
Massive numbers of text and WhatsApp messages are not expected to be made public in the period ahead, since the grounds for refusing access under the Wob still apply without restriction to text and WhatsApp messages on private telephones. The Division is therefore of the opinion that there is no need to fear that the administrative practice will be harmed to such an extent that confidential discussions can no longer be conducted via text and WhatsApp messages. Nevertheless, it is highly recommendable to keep work and private matters strictly separate, especially where text and WhatsApp messages are concerned.