AN investigation by Scotland’s transparency tsar into the destruction of pandemic WhatsApp messages by SNP ministers will investigate “serious systemic practice failure”, it has emerged.

The Scottish Government confirmed that Scottish Information Commissioner David Hamilton would carry out a “Level 3” intervention in light of evidence to the UK Covid-19 Inquiry.

It is the second most serious form of intervention, one step below legal enforcement action.

Mr Hamilton announced on Sunday that he intended to look into the “use and retention of WhatsApp and other informal communication messages”.  

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He said evidence to the Inquiry about the mass deletion of WhatsApps by Nicola Sturgeon and others had highlighted “risks to transparency and accountability within government”.  

The probe will “review current practices” and identify steps to ensure improvements in “how officials and Ministers use and retain information”.

However ministers continue to delete their WhatsApps in line with Scottish Government guidance.

Mr Hamilton’s predecessor, Daren Fitzhrenry, launched an intervention into the Scottish Government in 2017 over concerns about poor Freedom of Information (FoI) practice

Although it helped clear a backlog of FoI requests, the Scottish Government effectively remains in special measures for FoI because of inadequate records management.

Last month, two hours before he was due to give evidence to the UK Covid Inquiry, First Minister Humza Yousaf announced an external review into the Scottish Government’s use of WhatsApp and other informal messages.

It followed the Inquiry hearing Ms Sturgeon promised to submit her pandemic-era WhatsApps as evidence to it, despite knowing she had already destroyed them.

Key officials, including National Clinical Director Jason Leitch, also joked about deleting messages to avoid their recovery under FoI law.

After the Scottish cabinet met on Tuesday, Mr Yousaf’s spokesman said the terms of reference for the external review would not be set until after Mr Hamilton formalised his intervention plans later this week.

In the meantime, work to find someone to conduct the review continued, however this is not expected to finish before next week’s Holyrood recess.

Mr Yousaf’s spokesman also revealed Mr Hamilton’s was a Level 3 intervention.

Level 3 interventions are used for “more serious cases” and “aim to remedy serious, systemic practice failures” and require public bodies to “devise and deliver an action plan”, according to the Information Commissioner's office. 

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It means the Commissioner’can force ministers to hand over information, inspect “systems or documents”, and hold meetings with relevant personnel.

If the Government fails to comply or address its problems, the intervention can be escalated to the top level, Level 4, which is for “very serious or consistent concerns” and refusals.

A spokesman for the Scottish Information Commissioner added: “I can confirm that the new intervention will take place at Level 3.

“We are currently finalising our plans in regard to the scope of the intervention, and will be writing to the Scottish Government with further information in due course.”