Leave no trace? How to combat off the record government

[Article first published by Progressive Economy @ TASC]

Dublin, 13 December 2016 – While historical archives are a rich part of our cultural heritage, there are many day-to-day reasons why we should care about how governments and public bodies currently make and keep records of their actions and decisions.

At a very basic level, records and are vital for good administration and efficiency. Records – like minutes of meetings, briefing documents and memos – tell us what, where and when something was done and why a decision was made.

Records also provide a ‘paper trail’ of evidence for accountability purposes, for example, if a decision is questioned and needs to be revisited, or there is an official audit or investigation.

Access to information too relies on good record keeping and information management practices. When records are not created or appropriately preserved to adequately document decisions, then our right to know under the Freedom of Information Act is denied

Open government 2016 summit workshop – Leave no trace?

This month, TASC and the Madrid based ngo, Access Info Europe, jointly organised a workshop on the topic of record keeping for good governance at the 2016 Open Government Partnership summit.

The Open Government Partnership is an initiative of 75 participating countries, whose governments and civil society members are working together to develop and implement various National Action Plan reforms to make governments more transparent, accountable and responsive to citizens.

The session, ‘Leave no trace? How to combat ‘off the record’ government’ included invited speakers who have experiences of the technological, cultural and organisational challenges that militate against proper official record keeping and management.

In particular, the rapid pace of developments in new communications technologies, including the use of wireless technologies and instant messaging, pose significant challenges for modern records managers. While technological advances often facilitate off the record decision-making, they also provide many of the solutions to ensure record keeping for good governance.

Among the workshop facilitators was the Canadian Information Commissioner, Suzanne Legault. She described instances of ‘egregious destruction’ of official records, concluding that clearly existing consequences for such behaviour were not sufficient to prevent it – “the bar is not high enough,” she said. (In recent years, Ms Legault’s office has seen an increase in the number of complaints received about missing records: a 51 per cent increase from 2011-2012 to 2012-2013 and up 66 per cent from 2012-2013 to 2013-2014.

As with all complex governance problems in large administrations, there is clearly not only one solution to the problems our democracies face when governments go ‘off the record’. The need for leadership is ever present and there are also clearly balances to be struck – between open government practices and efficiency, and between the public’s right to know and the government’s need to protect specific information.

Synergies between reformers not always strong

In addition, when it comes to open government reformers, there are not always strong synergies between, on the one hand, Information Commissioners and right to know activists, and on the other, records-management professionals and public sector employee bodies who face records keeping challenges on a day-to-day basis.

In many jurisdictions indeed, Information Commissioners have no power in relation to record-keeping practices – they can only make recommendations and express surprise that certain records were either not created in the first place, or were not maintained.

In exploring solutions, a good place to start is by defining the reasons why our governments need to create records in the first place – for internal business purposes, for accountability, for the historical archive etc. This includes of course a recognition that not all records are of long-term value, and that those that are transitory can and should be deleted or destroyed as a matter of good practice.

The Scottish Minister for Parliamentary Business, Joe FitzPatrick, briefed the session about recent reforms requiring 250 public bodies to introduce Records Management Plans approved by the national Keeper of the Records. These obligations are part of the Public Records Act 2011, which was brought in on foot of a public inquiry into historical abuse which highlighted problems with missing records.

Mukelani Dimba, a civil society activist from South Africa, introduced a novel concept from an administrative justice point of view. His country’s constitution gives citizens the right to be given written reasons when the rights of someone have been adversely affected by administrative actions. This right could be used to help combat the ‘records dead end,’ he proposed.

Policy options for Open Government Action Plans

Other policy proposals discussed in the workshop included:

» Requiring civil servants to adhere to good record-keeping practices as part of their ethics or administrative codes of conduct.

» Capacity building and training for officials, many of whom have become their own records managers.

» Introducing enforceable legal obligations to create and maintain records that document government decision-making processes – the ‘duty to document.  (See the ‘duty to document’ recommendation by the Canadian Information Commissioner)

» Accompanying any duty to document with a spectrum of sanctions ranging from disciplinary proceedings to administrative monetary penalties and, ultimately, criminal offences.

» Strategic litigation including judicial review – enforcement through the courts of citizens’ rights to good administration/right to reasons for decisions.

A full report of the OGP workshop and policy proposals arising from it will be made available in the coming weeks. Details of the workshop are available here.

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