Prof Gregor Smith has told the UK Covid Inquiry he erased messages “frequently” during the pandemic.
Scotland’s chief medical officer told colleagues to delete WhatsApp messages “every day” during the pandemic, the UK Covid Inquiry had heard.
Prof Gregor Smith said he erased his own messages “on a frequent basis” in line with government policy.
He said any “pertinent” information about “definitive” decision making was recorded via email.
The Scottish government has said it is satisfied “all steps are being taken to meet the inquiry’s requests”.
Prof Smith was deputy chief medical officer at the beginning of the pandemic but took over as interim chief medical officer in April 2020 following the resignation of Catherine Calderwood after she broke Covid rules by visiting her holiday home. The appointment was made permanent in December 2020.
Ms Calderwood has been excused from giving evidence at this stage on medical grounds.
The inquiry was shown WhastApp messages from July 2021 between Prof Smith by Prof Graham Ellis, an expert in geriatric medicine who worked as clinical adviser to the chief medical officer. Prof Ellis was appointed deputy chief medical officer the following month.
In a WhatsApp chat called “CMO weekly”, Prof Ellis asked: “Hope this isn’t FOI able?”
Prof Smith replied: “Delete at the end of every day…”
Prof Ellis replied with crying with laughter and thumbs up emojis.
Prof Smith told the inquiry it was his “practice” was to capture any important information on the email system, to ensure it was an “auditable trail”, as well as to “exhort” colleagues to do the same.
Asked if he deleted WhatsAppp messages every day, the chief medical officer said: “If not at the end of every day then certainly on a frequent basis I deleted information which was no longer needed to be kept.”
He said information recorded on the official system related to “definitive” information once a consensus had been reached and would not be a “verbatim account” of a conversation but rather the “essence of any decision” that was recorded on the corporate system.
Earlier, the official in charge of enforcing freedom of information (FOI) laws in Scotland told BBC Radio’s Good Morning Scotland that the principles of the freedom information rules “appear to have been subverted” based on the messages that have been published by the inquiry.
Information Commissioner David Hamilton called the messages “quite concerning” and said he could launch a probe.
“Some of the material that came out last week, I think many people would say beggars belief,” he said.
The commissioner described FOI rules – which give anyone the right to request access to information held by public bodies – as “absolutely critical to democracy and accountability” and showing how the government makes decisions.
“And when I see the types of things that I’ve seen, then I’ve got to question is that being done and if I need to act I will act,” Mr Hamilton said.
He stressed that his responsibilities would only relate to an appeal regarding any information that had been held or deleted.
Mr Hamilton said his investigatory powers were “tightly limited” but that his office was looking back through old appeals to see if any covered the period of time covered by the pandemic.
He added: “What has surfaced through the inquiry, that’s what’s giving me concern that the public may not be getting the rights which they are entitled to.”
If the commissioner rules against the government, he can order it to reconsider an FOI request.
The Scottish government published mobile messaging guidance for officials and ministers in November 2021.
It said they were allowed to use WhatsApp and other messaging services to conduct business, with the guidance stating “you must transcribe the salient points of any business discussions and/or decisions in a mobile messaging app into an email or text document” before saving the information centrally.
The Scottish government’s records management policy, published in February 2021, said records should be kept as long as necessary to fulfil the Scottish government’s business and legal obligations. It defined a record as something “which can provide evidence of activities, transactions and decisions made for, or on behalf of, the organisation”.
It said the purpose of these records “is to provide reliable evidence of, and information about, ‘who, what, when, and why’ something happened”.
On Friday, counsel to the UK Covid Inquiry, Jamie Dawson KC, said former first minister Nicola Sturgeon appeared to “have retained no messages whatsoever”.
The hearing in Edinburgh was also told that her then-deputy John Swinney’s WhatsApp messaging was set to auto-delete.
On Sunday, Ms Sturgeon said copies of some of her messages had been retrieved and were handed to the inquiry last year.
The inquiry was also shown messages from a “Covid outbreak group” WhatsApp chat which included Prof Leitch and retired civil servant Ken Thomson.
In one post from May 2021, Mr Thomson wrote: “I feel moved at this point to tell you that this chat is FOI-recoverable.” He included an emoji with a zipped mouth.
Two minutes later Prof Leitch responded: “WhatsApp deletion is a pre-bed ritual.”
Mr Thomson denied there was a culture among Covid decision-makers of deleting messages to prevent them coming into the public domain.
A spokesperson for the Scottish government said it had accepted the recommendations of the information commissioner’s most recent FOI performance report, and “welcomed the progress it showed”.
They said ministers are “committed to responding to both the UK and Scottish Covid-19 inquiries, as learning lessons from the pandemic is vital to prepare for the future”.
The spokesperson added: “It would be inappropriate to comment on the detail of evidence being considered by the UK Covid Inquiry while hearings are ongoing.”
Information Commissioner David Hamilton has made it pretty obvious that he’s unhappy with messages that have emerged from the UK Covid Inquiry.
And it’s easy to see why. He’s responsible for enforcing FOI laws, and yet it appears some senior officials have had fairly flippant discussions about these rules.
So what happens now?
It looks like the information commissioner and his team will be casting an eye back over old appeals of FOI requests to see if any should be reassessed.
So, for example, if there was a previous occasion where the Scottish government said it didn’t hold information requested, and that was appealed to the information commissioner’s office, does that now need to be looked at again now these conversations have come to light?
Mr Hamilton’s suggested that an investigation could follow if he thinks the rules may not have been followed.
The commissioner’s office can ultimately intervene if a public authority fails to meet the standards set out in legislation.