Tuesday 8 – Wednesday 9 November 2022
Appeal against the judgment of the Administrative Court date 29 April 2022 dismissing the claims for judicial review.
These claims relate to the use for Government business of non-Governmental (“private”) communication systems (particularly WhatsApp, Signal and private email). The Claimants’ case is that the use of such systems means that public records that should be retained are instead deleted or are otherwise not available to be preserved for the public record. They say that this is unlawful because (a) it is incompatible with a statutory duty under section 3(1) of the Public Records Act 1958 (“the 1958 Act”); and (b) it amounts to an unjustified breach of policy.
The public interest in the preservation of certain public records is not in dispute. What is in dispute is whether there is a legal duty, enforceable by judicial review, to create and maintain records so that they are available for posterity, such that it is unlawful to use some modern methods of communication (such as instant messaging with auto-delete functions). This case also raises a legal issue of principle that has significance beyond the particular context of public records: to what extent are government policies enforceable as a matter of public law?