Government officials are using disappearing text messages to circumvent scrutiny, threatening transparency and risking democracy. Rex Patrick exposes a dangerous practice ignored by the PM.

In his dystopian novel 1984, George Orwell popularised the concept of the ‘memory hole’ of censorship and destruction, which enabled a totalitarian government’s ‘Ministry of Truth’ to erase embarrassing information and clear the slate for new propaganda.

In a time long before today’s electronic age, Orwell’s ‘memory hole’ was a chute leading to a hungry furnace, ready to incinerate the paper record of past decisions, events or indeed lives without a trace.

In today’s world, ‘memory holes’ are part of the very fabric of communications and record keeping. Electronic documents, emails, and text messages can all be deleted at the touch of a button.

From a Freedom of Information (FOI) perspective, deleting means just that – instant erasure. And with messaging apps such as WhatsApp, Signal, Wickr, and Microsoft Communicator, recovering deleted data is very difficult, if not impossible. In the case of Wickr, encrypted messages are automatically destroyed if both users are on the service – the memory hole is integral to the information system itself.

Avoiding scrutiny

It’s no surprise that these messaging apps are much favoured by politicians and their staff, who value secret communication and avoid scrutiny of their thinking and decisions.

Privacy is desirable for ordinary citizens and, indeed, for political activists. But when those people hold public office, such as ministers do, transparency and accountability must trump privacy.

If electronic messaging systems are used for the conduct of government business, then they fall within the scope of our Freedom of Information law and must be accessible and, unless some specific exemption applies, open to the public.

That is indeed the unequivocal ruling of the Office of the Australian Commissioner (OAIC) who has advised federal government agencies that “Text messages and social media such as instant messaging (IM) that support the business of an agency fall within the definition of ‘document’” as set out in the FOI Act. That also goes for Ministers and their staff.”

However, as a recently released Information Commissioner Senate Estimates brief says, that “does not mean that the use of WhatsApp and other apps is unproblematic from the perspective of FOI.”

If the FOI Act is to operate effectively, WhatsApp messages must be filed in such a way that they can readily be searched and retrieved.

Unfortunately, however, while a number of government reviews and agency inquiries have recognised the requirement to properly manage and retain messages on mobile devices, including via apps, little has been done to stop official communications from disappearing down the electronic ‘memory hole’.

The desire to keep many things off the record is a strong one within ministerial offices and, indeed, at the increasingly politicised top levels of the public service.

Convenience over transparency

With the convenience of electronic messaging and the security provided by encrypted systems such as WhatsApp and Signal, it’s no surprise that more and more government business is being transacted via these channels. This has led to a decline in the retention and accessibility of information about government decision-making.

The use of encrypted messaging apps by ministers and their political staff accelerated and, indeed, was encouraged during the former Coalition Government.

The convenience of instantaneous, hand-held communications is pretty much irresistible, and moving sensitive discussions outside more formal channels undoubtedly had its attractions for secrecy-obsessed Prime Minister Scott Morrison.

It certainly facilitated unaccountable, secret back channel communications such as those exposed in the subsequent downfall of former Home Affairs supremo Mike Pezzullo.

Effects on FOI

In a system that is already broken, the embracing of encrypted messaging apps has further affected transparency.

As the recently released OAIC briefing notes show, a growing number of Information Commissioner FOI reviews are encountering Wickr, WhatsApp and other social media in which “documents cannot be found or do not exist.”

And this is only for the FOI applications that have so far made their way through the OAIC’s massive case backlog. But the trend is plain.

The Information Commissioner’s review decisions, mostly relating to the Ministers in the former Morrison Government, make sorry reading. Ministerial offices are unable or unwilling to retrieve messages, or else they advise that in the case of Wickr, the automatic deletion function had presumably destroyed any relevant messages, whether or not they had existed.

More and more information has thus been disappearing down the electronic ‘memory hole’.

Ministerial immunity

The Information Commissioner is empowered to investigate complaints and make recommendations for process improvements to support government agency compliance with the FOI Act.

That includes developing departmental guidelines and procedures for the efficient storage and retrieval of information held on mobile devices. However, the OAIC emphasises that this regulatory oversight and reform role does not extend to the operations of ministers or their offices.

Talking points prepared for the Information Commissioner flatly state:

“My power to investigate complaints about action taken under the FOI Act is in relation to agencies only; I have no power under Part VIIB of the FOI Act or s8 of the Australian Information Commissioner Act 2010 to investigate the actions of ministers.”

So Ministers and their political staff are left to their own devices – literally.

Mandatory document retention

However, there is another principle now established that overrides this ambiguity. In the recent FOI win in Patrick v Attorney-General (Cth) a judicial command was given to Ministers to preserve information so as not to stand in the way of an FOI applicant’s rights.

In the context of a case where documents did not make it from an outgoing minister’s office to an incoming minister’s office, Justice Charlesworth commented,

“I accept that there may be very strong political resistance to an outgoing Minister transferring documents forming the subject of a pending FOI request to a new incumbent, particularly on a change of Government.”

“This Court was told that it was common practice for documents not to be transferred. But the FOI Act is not concerned with party-political matters other than to the extent provided for in respect of documents correctly described as falling within certain exemptions.

“To the contrary, it is a regime devised to enlarge scrutiny of Government activities in accordance with its terms, including in cases where scrutiny is not wanted. If there be a common practice of the kind suggested to this Court in submissions, it is not one that is authorised or contemplated by the FOI Act, and it should stop.”

There is little difference between a document not transferred and a message not retained.

The judgement translates directly to disappearing messages, and it must stop.

Transparency memory hole

Anthony Albanese came to office with a promise of greater transparency. We’re now well past halfway into the first term of his Government, and nothing has been done.

There still exists a culture of secrecy in government, aided by a completely under-resourced FOI machinery. In respect of disappearing messages, things are likely getting worse. According to recent press reports, the use of encrypted messaging apps is “rampant” among Labor ministerial staff, with the use of self-erasing messages common.

Given Labor’s much-trumpeted commitment to greater transparency and integrity in government, one might have hoped for some FOI reform action during the current parliament.

But one wouldn’t want to hold one’s breath. After all, the temptation to hit the delete button or just let a messaging app do that automatically is all too strong for politicians who are dealing with inconvenient truths.

Maybe Labor’s commitment to transparency is another one of those things that’s gone down the memory hole.