Digital communications (eg, on WhatsApp, Twitter or Facebook) can be disclosable under the Freedom of Information Act 2000 (FOIA).
A recent speech by Elizabeth Denham, the Information Commissioner, is a good reminder that “it’s the message, not the medium that matters” and public authorities need technology to manage their digital information.
Any digital communication sent by someone with a direct, formal connection with a public authority, an employee for example, could be disclosable under FOIA, if it relates to the business of the public authority.
But, as recognised in the Code of Practice on the Management of Records, “access rights are of limited value if information cannot be found when requested”. There is currently no legislated duty to document; what exists currently is a “patchwork of guidance”. Elizabeth Denham intends to investigate the scope of the problem to assess whether we need a legislated duty, with specific oversight and consequences.
In the meantime, organisations do need to make sure they have the appropriate technologies to organise and search existing digitally stored data. In terms of digital communications (such as on instant messenger), in Denham’s view, public authorities should consider whether it is appropriate for decisions to be made by such means, and any such decision should be subsequently recorded elsewhere.
The Information Commissioner is responsible for promoting good practice under this legislation. Watch this space - we could see her using her existing powers to promote better document management and even recommending a legislated duty.