The Freedom of Information Act - Compliance by Public Bodies

Chapter 5 - Records Management

The Importance of Proper Records Management

The FOI Act does not impose specific requirements on public bodies in relation to records management, although provision has been made in section 15(5) for the making of regulations by the Minister for Finance in relation to this matter. Despite the absence of specific requirements it is clear that proper records management is vital to the success of the Act. As the joint Australian Law Reform Commission/Administrative Council put it in its review of the operation of the Australian Federal FOI Act:

"Good record keeping and records management are...important to the success of the FOI Act. Without them, the right of access provided by the Act is unenforceable in practice. Agencies will be unable to locate records efficiently (if at all) and records that ought to be retained may be destroyed."

Apart from meeting the requirements of the FOI Act, the maintenance of proper records is important so as to ensure that :

  • "corporate memory" is preserved thus ensuring informed decision making and continuity following staff transfers,
  • information can be shared easily, thus enabling the business of the public body to be conducted efficiently
  • appropriate information is available to management,
  • evidence of the public body's activities including transactions with clients is available, and
  • legal requirements, including those of the National Archives Act, are met.

Proper records management goes beyond the ability to locate records efficiently. It is also concerned with which records should be created, how long they should be retained for and how they should ultimately be disposed of. To a large degree records management is a matter for individual public bodies and is governed by the requirements of the body's business. Therefore, rather than undertake a detailed survey of the records management practices of each of the public bodies examined, I looked for evidence that the objective of the Act was being circumscribed through deliberate failure to create records. I also looked for evidence that public bodies had upgraded their records management systems to enable them to meet effectively the additional requirements of search and retrieval of records which the Act imposes.

Failure to Create Records

A concern which is sometimes expressed about the FOI Act is that its enactment has led to less information being recorded because some public servants would prefer not to record certain information rather than, as they would see it, run the risk of disclosure under the Act. Similar concerns have been expressed in other jurisdictions. For example, the Canadian Information Commissioner remarked in his 1998/99 report that :

"Too many public officials cling to the old proprietorial notion that they, and not the Access to Information Act, should determine what and when information should be dispensed to the unwashed public. If bold boasts are to be believed, some have taken to adopting the motto attributed to the old New York Democratic boss : "Never write if you can speak ; never speak if you can nod ; never nod if you can wink."

It would be surprising if some public servants used to working in a culture influenced by the Official Secrets Act, did not react in this way. In a survey of four public bodies carried out in 2000*, FOI officers in the public bodies concerned stated they believed that less information was being recorded. It noted that over half of the decision makers that responded thought that less information was now being recorded with a view to avoiding disclosure. Over 80% said that they themselves exercise caution when recording information, particularly where the material may be sensitive or embarrassing. Caution in recording sensitive or embarrassing material is not objectionable in itself particularly if it results in a more objective and considered record being created rather than one where unnecessary, irrelevant and even hurtful comments about individuals are included. However, I would be extremely concerned if information, which ought to be recorded in the interests of enabling the business of the public body to be properly and efficiently conducted, was not now being recorded in an effort to avoid release under FOI.

During the course of the investigation I examined copies of certain types of records created before and since the commencement of the Act from the twelve public bodies examined. These included minutes of management advisory committee meetings, notes prepared for Ministers' own information in the context of replying to parliamentary questions and copies of records of tender competitions.

In analysing these records I found no evidence that less detailed information was being recorded or that certain information was being deliberately omitted. Indeed, in some instances I found that minutes of management advisory meetings were being recorded in greater detail than previously. In one particular case minutes were now being recorded where before the introduction of the FOI Act no formal minutes were kept. The analysis of the tender competition files supplied suggested that more public bodies are freely offering feedback to unsuccessful tenderers than was previously the case. There was no evidence that relevant information was not being recorded.

While the number of records analysed was small it does provide some evidence that the culture of official secrecy has not been replaced by a culture of non recording of information simply to avoid disclosure under the FOI Act. That is not to say, on the basis of the current sample, that record keeping in public bodies is of a particularly high standard. I would not be prepared to conclude from this investigation that the standard of record keeping is sufficiently high to meet the criteria mentioned at the start of the Chapter.

One example of unsatisfactory record keeping was discovered in examining the sample of FOI requests from the Department of Agriculture, Food and Rural Development. The request was for records relating to an investigation into a suspected serious fraud by a farmer. The records indicated that while an investigation had been carried out by a regional office, the matter had also been investigated by the Department's special investigation unit (SIU) in Dublin.

*The survey was carried out by students of an Institute of Public Administration course and covered the Department of Environment and Local Government, the Department of Finance, the Department of the Marine and Natural Resources and the Department of Public Enterprise

The decision maker in this case was based in the regional office and appeared to have difficulties in establishing whether the SIU had any records on the matter. Following further enquiries the decision maker was informed that the SIU did not have any records in respect of the investigation. The decision maker then issued his decision and in a note on the FOI file indicated that he remained convinced that papers existed in the SIU which had not been given to him in order to respond to the FOI request. It appeared that the FOI unit in the Department also believed that the SIU may have held records relating to the FOI request.

I took up the matter with the Department which informed me that the SIU held no records relating to the investigation up to the date the FOI request was received. I put it to the Department that, if an investigation into such a serious matter was being carried out by the SIU, it would be reasonable to assume that the Unit would have had some record of it. The Department informed me that:

"The Special Investigation (SIU) got involved in this case following an informal request from the Department's local District Veterinary Office (DVO). The request was for advice and assistance in reviewing the DVO files with a view to bringing about a prosecution in this particular case. SIU members have considerable experience in investigating and preparing cases for prosecution. At the time there was regular contact (face to face and by telephone) between the SIU and the DVO because the SIU were carrying out a number of other investigations in this area. The review of the files and the provision of advice and assistance did not necessitate the creation of any records in the SIU. When the level of SIU involvement in this case was stepped up, adequate records were created and kept in the SIU. These records were created after the date of the FOI request and were therefore outside the scope of the request."

It went on to say:

"All members of the SIU are acutely aware of the need to keep full and accurate records. The very nature of their work means that they are constantly involved in preparing cases for prosecution, underlining the need for proper records. The Department is satisfied that the record keeping practices of the SIU are adequate."

I am prepared to accept the Department's assurance that the SIU did not hold any records relating to the request. Notwithstanding this, the fact that the SIU could be involved in such a serious matter for a period of almost one year without the creation, by the Department, of a single record, which accurately records the SIU's involvement in the case, raises questions in my mind about the Department's record keeping practices.

In former times, detailed and contemporaneous recording of events was one of the defining characteristics of the public service. However, I am aware of many factors at play in the modern public service environment which militate against the recording of information. First, developments in technology have decreased the level of reliance on paper-based files and have led to a dispersion of information across multiple databases, e-mail files etc. which, paradoxically, can be time-consuming and difficult to collate when an FOI request is received. Second, the pace of activity has increased significantly and many public servants find it increasingly difficult to set time aside to write up notes of meetings etc. Third, drawing on the experiences of those public servants who have appeared before tribunals, enquiries etc. some of their colleagues are, in my view, misguidedly and erroneously, adopting, at best, a minimalist approach to the recording of information.

As will be clear from my opening remarks in this Chapter, continued deterioration in the standard of record keeping does not augur well for the future effectiveness of the FOI Act. It also raises concerns about the ability of public bodies to conduct their business efficiently. It also has implications for accountability. As I have pointed out on an earlier occasion, less comprehensive records may be a double edged sword and may lead later on to a distorted view of what the various contributions may have been. I intend to continue to monitor the record keeping practices of public bodies through the reviews which come before me.

Efficient Search and Retrieval

It was generally accepted that with the enactment of the FOI Act, the records management practices of some public bodies would need to be improved. It was expected that Government Departments/Offices and other designated public bodies would use the twelve month lead-in period to review and upgrade their existing file management systems in order to facilitate easy search and retrieval of records under the forthcoming FOI regime. Guidelines on records management were produced by an interdepartmental group on record management in July 1997 primarily for use by civil service bodies preparing for the introduction of the FOI Act. In the light of this, it is disappointing to note that only two of the twelve bodies examined in the course of the investigation - the Department of Enterprise, Trade and Employment and the Department of Social, Community and Family Affairs - have introduced new records management systems to facilitate efficient search and retrieval of records sought under the Act. A few of those public bodies examined accepted that their systems were not entirely adequate to meet the requirements of the Act particularly in relation to records created before the commencement of the Act. Most public bodies examined said that a review is either being, or shortly will be, conducted of their records management systems. This ranges from a 'root and branch' review in some bodies to a review of certain specific aspects of a public body's records management system.

Generally speaking, the FOI files examined in the course of the investigation disclosed no difficulties in relation to accessing records that were created since the commencement of the Act. This is hardly surprising given the relatively short timespan involved. However, some requests for personal records which were created some years before the commencement of the Act did pose difficulties for the bodies concerned. This supports what I have found in reviews which have come before me viz that considerable resources often have to be spent searching for old records, sometimes to no avail. Generally these problems can be traced to inadequacies of one kind or another in records management.

The level of training and guidance provided to staff in relation to record creation, maintenance and disposal varied considerably. Few public bodies provided structured training in records management procedures for all staff. Most relied on local management to ensure that their own staff were adequately informed of the records management requirements.

There appears to be a lack of uniformity in record-keeping practices particularly with regard to responsibility for the records management function. Responsibility for records management appears to lie in different areas in different public bodies, e.g. in Information Technology or Corporate Services areas in some, or at a local level in others.

The failure by some public bodies to accord a higher priority to improving records management runs the risk of storing up serious problems for the future. The difficulties and costs now being experienced in regard to the retrieval of records created prior to 1998 may also feature in future in relation to requests for records relating to current events. New systems are needed which make appropriate use of modern technology to enable the tracking and retrieval of records and which are robust enough to withstand staff changes and reorganisations.

Department of Social, Community and Family Affairs

As a result of the introduction of the FOI Act a new File Registration System (FRS) was introduced by the Department to register files dealing with non-personal information. Files relating to individuals are accessed by means of the individual's RSI number. The Management Services Unit has responsibility for maintaining the FRS which is an electronic register of all non-personal files in the Department. The FRS is updated by individuals in each area of the Department. However due to the geographical spread of the Department's offices, local management is responsible for the filing, retrieval and disposal of records held by them.

Staff are regularly reminded, through memos and at training seminars, of the need for proper records management in order to meet the business needs of the Department and the requirements of the National Archives Act.

Southern Health Board

In light of the FOI Act all Health Boards adopted a policy on records retention in October 1999. This policy sets out the minimum periods for which records should be retained having regard to the nature of the records. While it did not introduce a new records management system in anticipation of the FOI Act, the Southern Health Board has produced its own guidelines on best practice in records management aimed at ensuring that records are easily identifiable, maintained in a comprehensive system and easily accessible. While there is no central control or responsibility for records management, each manager is responsible for his/her own area.

From my analysis of the cases involved I found that there does not appear to be any difficulty in retrieving recent records. However, many of the requests received by the Board and other health boards are for records created many years prior to the commencement of FOI. In these cases retrieval of records depends on the filing systems that were in operation at the time. Very often these were inadequate by today's standards and regrettably sometimes it is not possible to locate these records or even to say whether or not they still exist.

Office of the Revenue Commissioners

The Revenue did not introduce a new records management system in anticipation of the FOI Act. On the other hand, in examining the cases supplied I did not find evidence of any particular difficulties in accessing the records requested. It would appear that different divisions have developed different records management systems to deal with their particular requirements. Because of the huge volume of individual cases which the Revenue has to deal with, there is a constant need to minimise the creation of routine manual records and to arrange for the regular destruction of such records. In such an environment it is important that destruction is properly authorised and recorded and complies with the requirements of the National Archives Act. A recent development is that a group of 'certifying officers' has been set up to ensure that Divisions meet these responsibilities.

Department of Education and Science

The Department did not introduce a new records management system in anticipation of the FOI Act. The Department said that it might look at ways to improve its records management system, possibly in the context of the "Review of Department's operations, systems and staffing needs" (Cromien report). The main responsibility for records management lies in the Central Management Services and IT areas. The Department has acknowledged that there is a need to improve the system for the future.

Recommendations

Each public body should devise and publish a records management policy covering the creation, maintenance and destruction of records. The objective of the policy should be to ensure that the activities and decisions of public bodies are adequately recorded.

Each public body should devise detailed guidelines based on these policies and provide staff training in these guidelines.

Where they have not already done so, public bodies should re-evaluate their records management systems to ensure that they are adequate to meet their business needs, including the need to search for and retrieve records efficiently in order to deal with requests made under the FOI Act.

Each public body should allocate responsibility at senior management level for ensuring that development and improvement of records management is accorded the appropriate priority.

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