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Requiring public bodies to create written records would aid accountability and build citizen trust in government

Nuala Haughey|

When it comes to open government, the issue of records management is not a natural headline grabber.  Yet the creation and maintenance of official records – from emails and diaries to briefings and minutes of meetings – underpins key open government goals of transparency and accountability.

For example, Freedom of Information laws are only as good as the quality of the records they allow the public to access: if records are not properly created and managed, then the right of access is not enforceable in practice.

Likewise, when it comes to accountability, accurate ‘paper trails’ are essential to ensuring proper scrutiny of past actions and decisions through audits, Ombudsman inquiries and many other types of investigations.

In our age of remote working, emails, laptops and mobile phones, there are many everyday challenges that militate against the proper recording and storage of government information. Additionally, a paradoxical impact of reforms aimed at introducing transparency into government affairs is that it they may create a temptation towards a culture of “off the record” government.

Whatever the reasons behind it, a drift towards an oral culture of government decision-making is a problem that many OGP countries face. Canada recently had a high profile official inquiry into the triple deletion of emails by political staff in order to skirt Freedom of Information laws. In Ireland, the work of a parliamentary inquiry was hindered due to a lack of official records of key government decisions and deliberations relating to the banking crisis of 2008.

There is no single policy solution that can plug the accountability gap that is created when government decisions, actions, deliberations and meetings go undocumented.

However, a legal duty requiring all public bodies to create and maintain full and accurate records of their key activities is one option that open government advocates worldwide could promote.

A statutory “duty to document” exists in New Zealand and some Australian provinces, and was recently recommended in Canada in the wake of the triple email deletion scandal.

So what exactly does this duty entail – and what is it not?

In Australia and New Zealand, public records laws require that all public authorities make and keep “full and accurate” records of their activities or affairs. The New Zealand legislation, the Public Records Act 2005, elaborates by including the requirement that records must be created and maintained “in accordance with normal, prudent business practice”.

This reference to business practice mirrors the language of the international standard for records management, BS ISO 15489-1:2001. In this context, the ‘business’ of a government department or public agency is the core functions set out in its legal mandate or mission statement, as well as its standard support functions, such as human resources, finance etc.

A legal duty to document need not be burdensome.  It does not mean denying government ministers and senior officials their vital “safe space” for confidential policy discussions.  Nor does it mean obsessively recording every single meeting or preparing file notes of every conservation.

What it means is that, as matter of routine, governments ensure that they produce and maintain the evidence base needed for accountability purposes.  In order words, all significant decisions and actions should be documented to a standard that allows others to understand the reasons why a decision was made or an action taken.

Naturally, the level and standard of documentation should increase as the consequences of decisions and actions increases. This is basically a risk-based approach, requiring officials to anticipate the potentially harmful consequences of not creating adequate records of significant events, actions, deliberations and decisions.

The types of consequences that officials should consider include damage to the government, the public health, the environment, public safety, the public finances, the public interest, etc.

Countries that already have a legal duty to document generally issue official guidance to flesh out the details of what exactly the legal obligation means in practice.

For example, guidance to Australian public officials says they should record and maintain significant decisions by Ministers, and the basis for them including advice on options and risks, as well as meetings and discussions with Ministers or stakeholders which may have policy or programme significance.

Naturally, proper oversight and enforcement is necessary to ensure that a legal duty to document works in practice. Here again, we can look to Australia, where, in extreme cases, a failure to keep good records may expose public service employees to proceedings for breach of their Code of Conduct, as well as civil or even criminal proceedings.

As with many open government initiatives, sound public records creation and management is about more than merely good administration – it is also about fostering trust in government. If the process for creating official records in the first place is designed to support both accountability and access, then trust will inevitably be improved while time and money will be saved.

 

Filed Under: Challenges and Solutions Open Parliaments Right to Information
Open Government Partnership