Received on June 3, 2022 Volkskrant-journalist Frank Hendrickx sent a disturbing message about a request he previously submitted for disclosure of SMS/app traffic between Minister De Jonge and Prime Minister Rutte in the period 2019–2020.
‘Hi Frank, (…) Decisions involving several ministers are in principle taken in the Council of Ministers or via communication with the House of Representatives, not via SMS or text messaging. The cabinet speaks with 1 mouth. Making the views of the ministers public can endanger the unity of government policy. That is why we see no reason to also disclose text messages or other messages from the minister to other ministers.’
According to the ministry, decision-making usually does not take place via those messages, but ‘is recorded in a different way. In a note, or other appropriate document. It’s about keeping the relevant information.’
It shouldn’t get any crazier. What it says here is that ministers and secretaries of state are not going to give away whatsapp traffic or text messages about anything at all and are no longer going to save or archive it. This is against just about all the disclosure and archiving rules we have.
About this author
Wim Voermans is professor of constitutional law at Leiden University. On Tuesday 14 June, the House of Representatives will speak with him and other experts about the archiving of documents from ministers under the Woo and the Archives Act.
In 2019, the Council of State already said that SMS/app messages fell under the Open Government Act (Wob) and the new Open Government Act (Woo), which has been in effect since May 2022, also states emphatically that you must make these types of messages public on request. to make. But ‘we’ simply don’t do that anymore, because the cabinet speaks with one voice.
Ground for refusal
But that unity of government policy is not at all a ground for refusal in the new Woo. There is, however, a duty of confidentiality for what is ‘discussed or takes place at a meeting’ in the Council of Ministers (the agendas and reports) – you cannot request this for reasons of state interest. But this is suddenly stretched enormously to everything that ministers and secretaries of state text or text, inside or outside the Council of Ministers, or with whomever.
On the basis of the same reasoning, you can refuse disclosure of almost all messages (emails, letters) from ministers. Hendrickx received a similar message from Kajsa Ollongren on 7 June.
This seems to be a return of the Rutte doctrine from 2020, in which, contrary to the Constitution, personal policy views of anyone were kept secret from the Chambers and everyone. But the current line goes much further: a squared Rutte doctrine.
That line drawn here is illegal: the law says that you must make text messages and apps public on demand and archive them in an orderly manner (destruction is prohibited once disclosure has been requested).
Disclosure
By categorically refusing disclosure of SMS and app traffic in this way, it is impossible to compare it with correspondence from other senders and recipients of those SMS and apps, or from government officials who have properly kept messages in accordance with the Archives Act.
If everyone destroys everything now, the correspondence trail will never be traced again. And contrary to what the ministry claims, text messages and apps are indeed important for decision-making. Certainly during the corona time, ministers were busy controlling via apps. The Sywert deal, the management of mayors, the resignation of Mona Keijzer and more were arranged via digital text messages. We know this based on what has already been released.
That route to find out what was playing is now blocked. The meeting regulations of the Council of Ministers are even equipped with a possibility to keep even more secret about corona. This is contrary to the Parliamentary Inquiry Act, but that does not seem to matter. That survey will soon be about nothing, because just about everything will be gone or secret.
greed for transparency
Compared to other European countries, the Netherlands has the least strict disclosure rules, but people grumble about excessive transparency and yet another ‘distrust competition’, such as Correspondent-journalist Jesse Frederik mentioned this in an article, which received a lot of approval in administrative circles. But openness is in the general interest of a democratic society, it has nothing to do with mistrust or political games.
The fact that you think the disclosure rules are nonsense or excessive, that you think our Prime Minister has better things to do than debate his old telephone, is no excuse for breaking those rules. The core of the rule of law is that the government always adheres to the rules of law, even if they get in the way, and that you cannot just do what you think ‘the people in the country’ are waiting for. Then you change the rules.
It is difficult to do anything against the illegal course announced here. The message to Frank Hendrickx at the beginning of this article is not yet an official decision. Before de Volkskrant can object, we may be months further (the legal deadlines are never met), before you reach a judge, it may take years. And then the relevance of the messaging is gone.
Meanwhile, shortcuts are being laid out via SMS and app, most of the public information (whether or not about corona) is hidden from view and ‘we’ are all left behind.