Her demand comes after government lawyers told the Good Law Project — which is engaged in legal action against the Department of Health and Social Care over the award of contracts — that Lord Bethell’s phone had been replaced early in 2021 and that the data held on it was not contained on the new device.
In their letter to the Good Law Project, they added that investigations were being carried out to establish whether the data could still be collected and retrieved.
Following the revelation, Ms Rayner, Labour’s deputy leader, last week wrote the Information Commissioner’s Office (ICO), which announced in July an investigation into the use of private correspondence at the Department of Health and Social Care.
Ms Rayner told the commissioner she was “deeply worried that the minister’s blatant disregard for propriety and coincidental technology failures are undermining every effort to seek transparency”.
In a response, the ICO also clarified its investigation into private communication channels used at DHSC would include the use of WhatsApp messages.
“To confirm that when we have previously referred to private communication channels in relation to our investigation, this includes messenger apps such as WhatsApp and any other private channels that fall outside the DHSC’s corporate systems”.
It added: “This includes looking at the retention, security and deletion of matters relevant to the corporate record to ensure that these have been handled appropriately.”
In a statement on Tuesday, Ms Rayner said: “A broken phone is a convenient excuse for the Conservatives to avoid scrutiny over yet more sleaze. Discussing millions of pounds of taxpayer-funded contracts on a private device is unacceptable. Why did he not use a government-issued phone for these messages?
“Every effort needs to be made to retrieve them from the minister’s phone so that they can be presented in court and included in the pandemic public inquiry. These missing messages are vital evidence and bereaved families deserve nothing less than the whole truth.”
Ms Rayner has also separately written to Simon Case, the cabinet secretary, urging the government to retrieve any messages and for Lord Bethell to be investigated under the ministerial code.
The ICO announced its investigation on 6 July — shortly after the resignation of Matt Hancock from the cabinet — amid claims that ministers and senior officials had used private email accounts to conduct government business.
“It concerns the public to feel there may be a loss of transparency about decisions affecting them and their loves ones,” said Elizabeth Denham. “And as the regulator of data protection and freedom of information laws, it concerns me.”
She added: “To be clear, the use of private correspondence channels does not in itself break freedom of information or data protection rules. But my worry is that information in private email accounts or messaging services is forgotten, overlooked, autodeleted or otherwise not available when a freedom of information request is later made.
“This frustrates the freedom of information process, and puts at risk the preservation of official records of decision making. I also worry that emails containing personal detail are not properly secured in people’s personal email accounts.”
The Department of Health and Social Care has been contacted for comment.
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