The trade association
The trade association Branchebelang Thuiszorg Nederland invoked the Government Information (Public Access) Act ('Wob') to request information stored on data carriers at the Ministry of Health. It argued that WhatsApp and text messages would also be covered by that request, as they can be found on a data carrier or via web.whatsapp.com.
The minister disagreed and argued that a WhatsApp or text message cannot be regarded as a 'document' within the meaning of Article 1, first paragraph, preamble and under a, of the Wob. This would mean that it would not be subject to the Wob as referred to in Article 3, first paragraph, of the Wob. Only if telephone conversations or WhatsApp or text messages were recorded in a (physical) document, for example if they were reported, would they fall within the scope of the Wob. The aforementioned trade association then took the matter to court.
The court's ruling
The court must therefore rule on the question of whether a text message or WhatsApp message is a 'document' within the meaning of Article 1, preamble and under a, of the Wob. A 'document' is defined as 'a written document or other material containing information held by an administrative body'. The court first addresses the part 'written document or other material containing data' and then considers whether it is also 'held by an administrative body'.
The court compares the messages with other objects that are considered documents within the meaning of the Wob. Photographs, video and audio recordings, and emails are documents within the meaning of the Wob. Telephone conversations as such do not fall within the scope of the Wob because they are not 'recorded'; a text message or WhatsApp message is 'recorded'.
The court emphasizes that text messages and WhatsApp often play a role in much more "fleeting" communication than, for example, email, but that this is a gradual and not an absolute difference with text messages and WhatsApp messages. This is therefore no reason to categorically exclude these messages from the scope of the Wob, but only to exclude text messages or WhatsApp messages that contain only everyday chatter. The latter type of messages will generally not fall under the Wob, because they do not concern an administrative matter.
The court concludes that text messages and WhatsApp messages fall under the definition of a document in the Wob in the sense that they are "a written document or other material containing information."
The court then considers the question of whether these documents are 'held by the administrative body'. In the court's view, the requirement that a document must be stored on the hard drive or server of the administrative body in order to fall under this definition is no longer tenable in this day and age. After all, they can choose to store documents in the cloud or switch their email program to a provider that does not work with traffic from their 'own' server, but is web-based. In these cases too, the documents are still 'from' that administrative body.
As far as I am concerned, that is a logical conclusion. The technique used to store a document should not determine whether or not the Wob applies. According to the court, text messages and WhatsApp messages on phones with a subscription in the name of the administrative body fall under the minister's jurisdiction. Similar messages on civil servants' private phones do not.
Finally, the court emphasizes that the minister cannot simply look at a civil servant's phone. However, in the case of phones with a subscription in the civil servant's name, a method must be found to retrieve those messages. Unfortunately, the court does not specify how such a method should be designed so as not to compromise the civil servant's privacy.
The court finds that excluding text messages and WhatsApp messages from the decision on the Wob request is incorrect. The decision was prepared in violation of Article 3:2 of the Awb and, in violation of Article 7:12, first paragraph, of that law, was not properly substantiated.
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