By Shane Wright
Laws made for the days of pen and paper could allow the nation’s most senior ministers and public servants to avoid scrutiny of their decisions by the voting public, integrity agencies and historians as they use encrypted messaging systems like WhatsApp and Wickr.
As the National Archives warns vital audio-visual records of disappearing Indigenous languages and ASIO surveillance video could disintegrate before being properly stored, it and other agencies are fighting to even get their hands on new forms of information widely used by elected officials to make long-lasting policy decisions.
Encrypted message systems such as WhatsApp and social media like Facebook are creating problems for document retention agencies including the National Archives. Credit:
The National Archives collects all official documents created by departments and ministers, including cabinet papers that are released with a 20-year delay. The papers are heavily mined by historians and analysts to understand key policies.
Documents also come under the Freedom of Information Act, often used by media companies to reveal the inner workings of government, while agencies such as the National Audit Office can access documents created by public servants as it looks to see if government programs are being run efficiently and properly.
But a government-commissioned review of the archives, which found the agency struggling under the weight of long-term funding cuts, warned the very definition of what constituted a government record needed to be updated to reflect the changed way in which ministers and departments go about their business.
Director of the National Archives, David Fricker, says it is obvious official communication is being conducted over enrcypted message systems.Credit: Alex Ellinghausen
“The definition of a record needs to reflect current international standards, be more directly applied to digital technologies, and more clearly provide for direct capture of records that are susceptible to deletion, such as emails, texts or online messages,” the Tune review into the archives found.
When ministers leave Parliament they are required to leave official documents with the National Archives. They include communications with other ministers, including the prime minister, relating to their portfolio responsibilities as well as records of “deliberations, decision-making, appointments and terminations”.
Ministerial records, including those with public servants, that are created or received using social media, SMS as well as encrypted messaging systems are covered by this requirement.
But archives director David Fricker has revealed despite the collection of documents from retired ministers and prime ministers over recent years, there’s no sign that encrypted messages have been handed over as part of a collection of official documents.
“I would be very surprised if we have yet received any transfers of WhatsApp messages or that generation of technology,” he told a parliamentary hearing last week.
Mr Fricker said it was clear the technology was being used.
“It’s an absolute certainty. I think it’s well-known that government officials are communicating with WhatsApp and other platforms similar to that,” he said.
While the archives requires the retention of important records there are no penalties if they are not. As some encrypted messaging systems destroy messages, it may be impossible to even track their creation.
Even social media posts, which are being used extensively by Prime Minister Scott Morrison, can prove problematic as they are held by foreign, private companies which in years to come may cease to exist.
The Office of the Australian Information Commissioner said the Freedom of Information Act gave the public the legal right to access documents of an agency or ministers. That included the right to messages on mobile devices and messaging applications.
“The OAIC considers that documents required to be retained should be managed in such a way as to facilitate searching for them in response to an FOI request,” a spokesperson for the commissioner said.
Labor MP Julian Hill said the government had to explain why it was taking so long to deal with the issues around encrypted messages.
“There was clear and compelling evidence from the National Archives and the Auditor-General about the need to retain records of encrypted communications that relate to government decisions,” he said.
Assistant minister to the Attorney-General, Amanda Stoker, says a response to the Tune review into the National Archives will be finalised this year. Credit: Edwina Pickles
“There’s an urgent need to modernise the regime as it relates to the public service.”
The Assistant Minister to the Attorney-General, Amanda Stoker, said the government was taking a methodical approach in responding to the review, adding its total recommendations could cost between $70 million and $205 million a year.
Senator Stoker said a formal response should be finalised by year’s end.
“I’m concerned to make sure the archives of this country are available to us for the long term. It’s an important part of our history,” she said.
While agencies deal with issues around encrypted messages, the National Archives is also fighting to maintain the records it does hold.
Mr Fricker revealed some irreplaceable documents were already at risk, particularly audio-visual recordings that range from Indigenous culture such as languages and ceremonies to surveillance material collated by ASIO.
“I think this is about engaging and sustaining citizens’ trust in government and defending our democracy, because transparency and accountability are the foundations for people to have trust in their institutions,” he said.
“If we lose records then they are permanently and irretrievably lost.”