‘Officer must hand over chat conversation private phone with Wob request’
According to the Council of State, text messages and WhatsApp messages that are requested from a government body via a Wob request must be submitted, even if these data are on a private telephone of an official or driver.
The Council of State judges this following a legal conflict between the Ministry of Health, Welfare and Sport and BTN. According to the RvS, it makes no difference to the Wob on which data carrier information is stored. Text messages and WhatsApp messages therefore also fall under the Wob, provided they are sent or received in the context of work.
It does not matter whether these messages were sent or received on a work or private telephone. The RvS makes the comparison with a work file that is taken home. In such a case, that work file could already be requested via the Wob. “Otherwise, administrative bodies could avoid the law by deliberately not sending messages with a business telephone,” the Council of State reasons. This means that if an officer uses a private telephone to conduct work-related communications, the officer must hand over the messages when requested. The RvS emphasizes that private messages do not have to be shared and administrative bodies must not have access to the employee’s private telephone.
The conflict between the ministry and the trade association was related to a Wob request from BTN about the financial difficulties of TSN Thuiszorg. Specifically, BTN requested all documents about the actions taken by or on behalf of the minister in response to those financial difficulties. The minister said he was unable to comply with this, so BTN went to court.
The minister was of the opinion that the messages do not fall under the Wob, because they are comparable to telephone conversations and oral consultations in the corridors. This information only needs to be made public via a Wob if it is stored by means of, for example, a telephone note. However, the retention of this information is not mandatory according to the Wob. Since this verbal information does not need to be shared, similar SMS and WhatsApp messages do not need to be shared, the minister argued.
The Council of State agrees with the minister that the nature of SMS and WhatsApp messages is often informal and ephemeral. However, the government body finds the messages more similar to e-mail messages, which do fall under the Wob. And since the nature of a message plays no role in the question of whether a data carrier contains a document, the data must simply be handed over, the Board ruled in the appeal.