Did the Cabinet Office Lie?

Despite years of asking for the former special advisor’s WhatsApp messages under Freedom of Information laws, the Cabinet Office may never have asked Dominic Cummings for them. Why? Iain Overton reports

Dominic Cummings has said that he believes he was never asked to share his WhatsApp conversations with the Cabinet Office – despite repeated Freedom of Information requests asking for them, Byline Times can reveal.

The claim, made earlier this month on Twitter, came as Boris Johnson's former chief advisor said that he "couldn’t swear to it" but "don't think so" when asked if he had ever had a request from the Cabinet Office FOI unit for his WhatsApp correspondence.

It raises questions as to whether the Cabinet Office’s FOI team deliberately failed to follow protocols in order to dodge the sort of WhatsApp revelations seen in the Telegraph's Matt Hancock leaks.

Initially, dropping into a conversation on Twitter about the use of WhatsApp for government business, Cummings asked: “What WhatsApps of mine were you after?”

The one-time political consigliere then wrote that “officials do much of government business on WhatsApp/Signal but don't want it FOId, obviously”.

Byline Times – along with The Citizens – submitted an FOI request in September 2019 to the Cabinet's press office regarding the use of encrypted communication software by then special advisor Cummings. This was rejected – on the grounds that the information was not held.

A year later, in September 2020, another FOI was submitted to the Prime Minister's Office, which was also rejected.

In April 2021, Byline Times and The Citizens again wrote to the offices of the Prime Minister and Cabinet Office to request confirmation or denial as to whether special advisors used WhatsApp for civil servant work. The offices finally replied to the request respectively in November, stating that they did not hold any relevant information. In December, they stated that the cost of complying with the request would exceed the appropriate cost limit.

In response to more questions as to why the Prime Minister’s office claimed that it did not hold his WhatsApp messages, Cummings tweeted “'don't hold' is deliberately vague!" and "never asked the PM so we... don't hold'!”

The concerning use of private messaging apps by UK Government officials to conduct business has been widely reported. This includes the use of WhatsApp, Signal, text messages and private email accounts.

Several high-profile present and former government officials – including Boris Johnson, Theresa May and David Cameron – have all been identified as using private messaging apps to conduct government business.

Most recently, WhatsApp messages sent by former Health and Social Care Secretary Matt Hancock were leaked following a betrayal of trust by political pundit Isabel Oakeshott. These messages – exactly the sort sought after by Byline Times through Freedom of Information requests – provided insight into the inner workings of the UK Government during the pandemic. 

Hancock’s messages include conversations with ministers and officials on various topics such as testing, lockdowns and school closures. In one exchange with then Education Secretary Sir Gavin Williamson, Hancock criticised teaching unions. In another, he sought a favourable front page from George Osborne, former Chancellor and Evening Standard editor, as he tried to reach his target of 100,000 daily Coronavirus tests.

In other conversations, Hancock discussed schools reopening with Sir Gavin, who expressed concern that some might use a lack of personal protective equipment as an excuse not to open. Then Prime Minister Boris Johnson, on the other hand, compared the risk of dying from COVID to falling down stairs for over-65s in a discussion about shielding.

WhatsApp use is clearly endemic in government, despite the refusal of the Government to accept that this is the case and to allow journalists to access such messages under FOI. The extensive use of private messaging apps has raised concerns about transparency and accountability in government decision-making.

The Freedom of Information (FOI) Act allows requesters to ask for any information held by a public authority. Public authorities may refuse an entire request if it is too costly, vexatious or a repetition of a previous request. The Act also includes an exemption for personal data that conflicts with the UK General Data Protection Regulation (UK GDPR) or the Data Protection Act 2018 (DPA2018).

While some exemptions are 'absolute', most require a public interest test – weighing public interest arguments before deciding on disclosure. Importantly, the Act does not allow for prohibiting the question itself from being asked to the holders of the information.

In the case of Cummings' WhatsApp messages, the reasons for rejecting the FOI requests included exemptions whereby: disclosure would prejudice the prevention or detection of crime or the exercise of public authority functions; and disclosure of information that would be likely to prejudice the effective conduct of public affairs and the ability to carry out an inquiry. The Cabinet Office also stated that the requested information was not held.

Last year, the Information Commissioner’s Office (ICO) condemned the Cabinet Office for a number of failings in relation to its FOI process regarding WhatsApp messages. It found that the Cabinet Office had failed to conduct comprehensive searches for communications relating to the prorogation of Parliament in September 2019 involving Cummings, despite FOI requests for such. 

It also ruled that the office did not follow proper procedures in applying the exemption and did not ask for searches of private email accounts or personal devices.

Interestingly, the report also noted speculation that the aversion to email within the Cabinet Office was due to an incident in 2011 when Michael Gove was forced to release messages sent on his wife’s email account under the Freedom of Information Act – and that it was this incident that made Cummings, then an advisor to Gove in the Department for Education, realise that alternative means of communication were needed that would not be liable to discovery by future inquiries.

In April 2021, David Davis called for the strengthening of the FOI Act, stating that avoiding FOI requests has become a "political strategy in its own right". He advocated for a presumption of disclosure and the removal of the exemption for commercially sensitive information. 

Jolyon Maugham, founder and director of the Good Law Project, told Byline Times: “Public records and our FOI act regime have become, in fact, like Mob accounting. Civil servants and special advisors have the official record for public consumption and also the record that reflects the reality. I remain shocked that our courts are, so far, tacitly endorsing this conduct."

For The Citizens' Clara Maquire, that Cummings has claimed he was never asked for his WhatsApp messages "tells us all we need to know about this Government’s attitude to transparency".

"The Cabinet Office assured us that electronic communications of note were exported and filed on the public record," she said. "Now, we find out that messages deemed significant by Cummings never found their way into public record – and it seems that the Cabinet Office didn’t even mention it to him.

"It’s not just evidence of a woefully inadequate process, it demonstrates a total disregard for the concept of public accountability.”

It is hard not to conclude that the Cabinet Office's apparent evasion of FOI requests and failure to ask Cummings for his data suggests a deliberate attempt to avoid disclosure and obstruct public scrutiny – undermining the principles of an open and democratic government.

The Cabinet Office said: “All FOI cases are processed in line with due process and all legal requirements. We also make applicants fully aware of how they can request a review or appeal when responding to FOI requests. Each request is looked at and handled on a case-by-case basis and, where there is a non-disclosure or exemption applied, the reasons and rationale are clearly explained in the response.”

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