Europe's missing mails

In the future, only emails registered with the commission archiving system Ares "or in another document management system" would be preserved and accessible for document requests.

This policy, announced under EU commission president Jean-Claude Juncker, is not widely known. But it is still in force. It is part of a set of practices regarding emails and text messages in use in the EU institutions and the governments of several EU member states that appear dubious at best and could possibly be illegal.

#Missingmails

The investigative project #Missingmails is examining these practices. It brings together journalists from DEO in Denmark, Follow the Money in the Netherlands, Le Monde in France, De Tijd in Belgium, netzpolitik.org, and Welt in Germany. The deletion practices warrant attention as they might infringe citizens' rights to document access. They can also hinder the efforts of inquiry committees to uncover scandals, and make the task more difficult for archivists and historians who wish to reconstruct contemporary history.

In Germany, the chancellery and several ministries routinely delete entire mailboxes as soon as employees leave, whether they were a former head of government or simple clerks.

Mid-2022 likely saw the deletion of the mail account of former chancellor Angela Merkel, according to the rules of the chancellery, which state that "email boxes are deleted after six months".

The same practice applied to the mail account of now chancellor Olaf Scholz when he left the German finance ministry in December 2021, as this is "customary" according to the ministry. Additionally, German federal ministries regularly dispose of data on official cell phones when officeholders depart.

This practice rests on the assumption that ministers, like clerks, independently transmit important messages to the archives. Hence, all other emails can be discarded.

There are many indications that potentially relevant emails and text messages may have vanished. Especially when it comes to Merkel, known for her extensive use of text messages, even during the Covid pandemic. Some people joked SMS stood for 'Short Merkel Service'. No known cases exist where any of these text messages ended up in the official files.

Similarly, emails from the German finance ministry discussing a financial scandal called "Cum-Ex" appear to have disappeared, and correspondence involving a state secretary of the ministry and a private entrepreneur linked to the Wirecard scandal was also not available in 2022. The ministry argued that due to the change of office, access to these emails was "no longer possible".

Some legal experts suggest such deletions could be punishable by law, leading former Bundestag MP Fabio de Masi to threaten to press charges. The German conservatives of the CDU and sister CSU party have also recognised the potential volatility of the matter. They plan to set up an inquiry committee of the German parliament into the Cum-Ex scandal. The opposition politicians aim to reconstruct mail traffic that was removed from the ministry of finance's servers when Scholz moved to the chancellery in December 2021. "We will exhaust all legal possibilities to secure evidence," CDU MP Matthias Hauer told Welt.

Technically, this might be possible because at least some ministries store mail traffic for years on special tapes, even after mail accounts have been removed from the servers. The German ministry of the interior confirms this would be feasible in principle, but extremely complicated.

Slette-Mette

In France, it seems to be a common practice to delete government mail accounts. Le Monde requested emails exchanged between the French ministry of modernisation of the public service (the DITP) and consultancy Roland Berger. However, these emails were unavailable because the accounts of the three individuals in charge had been deleted when they left the DITP. The same appears to have happened to emails from an official in the ministry of health in 2018 and 2019 in a case that later sparked public debate.

In the Belgian region of Flanders, ministers and members of their cabinets are allowed to take their mailboxes with them on a USB stick when they leave office, according to a spokesperson for Flemish minister-president Jan Jambon who spoke to De Tijd newspaper. "No data is subsequently stored centrally," the spokesperson confirmed. In Flanders, archives of ministers and their cabinets are considered personal archives that are not bound by the rules on other files.

In the past, similar rules applied to the national government of Belgium. But recently, rules have become stricter. A coalition agreement of 30 September 2020 mandates that "the government will ensure that the preservation of the cabinet archives is guaranteed from now on". Therefore, emails and text messages could become part of the national archives. "Based on the recommendations made to members of the government, ministers should be careful when, for example, deleting text messages that could nevertheless have a high historical value," said a spokesperson for Belgian prime minister Alexander de Croo.

On the other hand, some countries have adopted new ways of dealing with government emails and text messages.

In the Netherlands, a scandal dubbed 'Nokiagate' triggered such changes. In May 2022, it was revealed that prime minister Mark Rutte had extensively deleted SMS traffic, allegedly due to lack of storage space on his old Nokia mobile phone. In April 2023, Rutte's government announced a reform. Government members will no longer be allowed to delete their text messages. Mailboxes of departing ministers will be stored securely and transferred to the national archive. Following a US model called 'Capstone approach', deletion is to be avoided in the future, especially for mail accounts of high-ranking decision-makers.

Similarly, since 2021, Danish directives require that ministers' emails be retained for at least 25 years. In July 2022, the justice ministry in Copenhagen also required ministers not to delete their text messages and to regularly download them for preservation — for example, in case an inquiry committee requests them.

Here, too, public outcry led to the clarification. In the first year of the Covid pandemic, the government under prime minister Mette Frederiksen had 17 million minks culled, fearing contagion risks. It later emerged there was no legal basis for this. Text messages from the head of government and her closest collaborators on the matter had been deleted. According to Frederiksen, this was based on her department head's advice.

The Danes then dubbed the prime minister 'Slette Mette' or 'Deleting-Mette'. A mocking video game made fun of this nickname.

'Contempt for democracy and accountability'

In light of recent reforms in Denmark and the Netherlands, the deletion practices of the EU Commission appear particularly outdated.

Already in December 2021 German magazine Spiegel had revealed the Commission practice to dispose of emails that are six months old. In July 2022, the EU Ombudsman Emily O'Reilly found the Commission guilty of maladministration. The EU body had refused to release text messages sent by commission president Ursula von der Leyen about a multi-billion euro vaccine deal. Apparently, von der Leyen had exchanged text messages on vaccine procurement with the CEO of Pfizer. But the commission claimed they were not able to identify these messages in the official files.

"The refusal of President von der Leyen to comply with EU transparency legislation shows deep contempt for democracy and accountability," said Dutch MEP Sophie In 't Veld (Renew Europe). While the commission deserved praise for acting with determination in a crisis situation, "its refusal to apply the transparency rules to its own activity is wholly unacceptable," In 't Veld added.

German MEP Daniel Freund (Greens) also criticised the commission: "Access to documents is a central right in any democracy. But here we have considerable problems in the EU. Emails are being deleted, documents are not being recorded, or one even denies them the character of a document. These issues have to change."

Last year, the Uber Files investigation organised by the Guardian revealed how then EU commissioner Neelie Kroes was in touch with the US company Uber, for which she would later do lobbying work. She supported the company publicly while people at Uber were already planning to hire her after she left office. Although collaborators of Kroes had also exchanged emails with Uber, the commission found almost no records when transparency campaigners Corporate Europe Observatory asked for documents in the contacts.

However, the EU law governing access to documents, Regulation 1049/2001, states that it should apply "to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union".

Legal scholars see a direct contradiction between the commission guidelines allowing the destruction of emails and the letter of the law. "Whether the requested document is registered or not does not affect the obligation to review whether it should be released," says Finnish professor Päivi Leino-Sandberg.

The European Ombudsman agreed with this when it found in the case of von der Leyen's text messages that it is not "relevant whether a document has been registered in the institution's document management system."

Suing for transparency

In January 2023, the New York Times and its Brussels bureau chief Matina Stevis-Gridneff sued the commission at the General Court of the European Union for failing to disclose the text messages between the commission president and the CEO of Pfizer.

"Public officials should not be able to evade freedom of information laws just by switching from emails to text messages," says Nicole Taylor, spokesperson for the New York Times: "Freedom of information laws exist for a reason: so that the public can exercise democratic oversight of their government. That oversight is particularly important on matters of public health, and when billions of euros in public money have been spent."

The EU Council also seems to struggle with handling text messages. According to a report by news agency AP in 2015, it was an SMS compromise text sent by Dutch prime minister Rutte to then Council president Donald Tusk that resolved a conflict about the Greek crisis at the EU summit in July 2015.

In the summer of 2022, Follow the Money requested text messages between Rutte and Council presidents Herman Van Rompuy, Tusk, and Charles Michel from October 2010 to May 2022. The general secretariat of the Council (GSC) declined. Not only was it "not in possession of such a text message" as AP had reported it in the Greek debt crisis, it also admitted that there were no text messages from Council presidents in the files at all: "No text or other instant messages sent to or by a European Council president have been registered so far by the GSC."

They did not say whether the council presidents had never received or written any such text messages.