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Can an employer demand messages from a private cell phone?

The Netherlands Council of State ruled at the end of March that WhatsApp and text messages on the work and private cell phones of civil servants are considered to be official records. This decision puts the government in a difficult position. How are you going to store millions of texts and WhatsApp messages?

A few years ago the Netherlands and France negotiated on the joint purchase of the Rembrandt portraits Maarten and Oopjen. Communications between the countries was carried out mainly via WhatsApp messages. The government did not acknowledge these messages as official records so the messages could not be made public by invoking the Government Information (Public Access) Act.

Tom Barkhuysen

The decision of the Council of State therefore signals a change and in practice it will lead to many challenging situations. For example, can you simply demand a person’s private cell phone when there are also privacy-sensitive messages on it? 'In protocols you can lay down that it is not allowed to use a private cell phone to send work-related messages', says Tom Barkhuysen, Professor of  Constitutional and Administrative Law in Dutch newspaper NRC Handelsblad. 'Or you could give work-related messages a code so that those messages are easy to filter.'

This will still not prevent a lot of work-related messages being stored on a private cell phone. 'It could lead to problems if a person refuses to cooperate. From a legal point of view, there is no specific basis upon which private messages can be demanded. So the Council of State’s decision is very interesting.'

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