Paper delivered (Monday 6 September) to the 10th National Convention Records Management Association of Australia, Hobart, 5-8 September 1993

Introduction

The improvement of governmental record management is frequently cited as a benefit of FoI legislation. However, there appears to be a lack of empirical research on this phenomenon. Most commentary focuses on the purported improvement, without detailed research evidence for the claim, and with no acknowledgment of the other factors which may be responsible. The challenge for research is thus to establish as precisely as possible, the contribution, both positive and negative made by FoI to improvement in records management.

A closer look at the evidence shows that the impact upon record management of FoI in the 1990s in Tasmania is a mixed bag and certainly changes in record management practices appear to have lessened the potential of any significant impact. This paper will further suggest that despite the benefits hailed for FoI and record keeping practices there may sometimes be a heavy price to pay.

Outline of Paper

The paper commences with a brief look at the available Australian literature on this topic. In the next section some of the possible negative effects of FoI on record management are canvassed. The final section reports the findings of a case study that examines the early impact of FoI upon the record management practices of several Tasmanian government agencies.

Literature review

A study of the literature about the effects of FoI provides strong support for the benefits which flow to record management. This literature can be separated into three major groupings. The first either briefly refers to other reports which mention the records management benefits of FoI or assumes a benefit without referring to any supportive evidence. The second grouping, and the far smaller category, presents some tangible evidence for the positive linkages between FoI and improved records management. The third grouping, and most informative, consists of the reports of government agencies about their perceptions of the benefits of FoI. Rarely, in any of the groupings, are possible negative consequences of FoI on record management canvassed.

This generally positive perception, for records management, of FoI has been supported in a 1991 survey undertaken by the Australian Vice-Chancellor's Committee. The survey was sent to all Australian Universities and sought information on how FoI legislation was affecting their activities. Review and improvement in record keeping procedures and practices was cited by most of the Universities operating under FoI Acts.

Very little of the literature seeks to assess whether the benefits attributable to FoI can be so accurately laid at the feet of this administrative law reform. FoI legislation is only one of a number of factors which impact on records management, including technological advances, modernised management practices, the development of records management as a discipline in its own right and the push for greater efficiency in the public service. The contribution of these factors must be taken into account if an attempt is going to be made to delineate the contribution made by FoI. McGann probably best summarises the contribution of FoI when he noted that FoI

"does not purport to regulate the recording, filing, storage, retrieval and destruction of government documents.... nonetheless recognised that FoI legislation has contributed to improvements in the efficiency of these systems."

It is not the intention of this paper to assess the precise contribution of FoI to records management. The point I wish to make is that the literature seems, outside of government reports, to provide little evidence as to the precise benefit of FoI to records management. Secondly, the literature as a whole seems to ignore possible negative contributions to good records practices and procedures. The rest of this paper is an attempt, via a case study of the early months of the operation of FoI in Tasmania, to ascertain with more precision the positive and negative contributions of FoI to records management.

The Negative Possibilities of FoI

It seems that FoI may have the potential for significant negative effects on records management, in contrast to the frequently cited improvements in administration due to FoI. This negative effect has been summarisied by Waterford in the following way

In short, in the long term, FoI should have no appreciable effect on reducing the quality of the record, even if, in the early days, there may have been a tendency to truncate the record, or to temper advice with a view to history or outside scrutiny.

Waterford lists a series of pressures which he believes should operate to minimise or reduce these negative effects in the long term. These pressures include; fear of disclosure, normal demands of good record keeping, the need to justify decisions, the impact of a range of administrative mechanisms such as the Ombudsman, Auditor-General, Ministerial or Parliament requests. While acknowleding that these pressures exist and do have a positive impact we still need to be concerned about the short term negatives persisting into the long term. The Nash Report outlined in the next section was complied in late 1987, four years after the commencement of the Victorian FoI Act. The report indicates that Waterford's short term possibilities were still alive and well in the Victorian Department of Premier and Cabinet.

The Nash Report

In 1987 Ben Nash made a damning report on record management practices and FoI in the Victorian Department of Premier and Cabinet. Nash identified significant problems with departmental records management in relation to FoI. Some of his findings were:

- information may not be recorded or stored because of potential access under FoI

- information may not be indexed on computer tracking systems because it may enable identification of documents under FoI

- personnel are often indifferent to correct records management practices, resulting in papers being taken off files and used to create personal files (these papers are claimed to be personal working papers in the case of an FoI request, and files reassembled following a request), major decisions being made on removable labels, failure to keep records of movements of files and letters, papers being out of order or missing on files etc

- the overall tone of responses to Nash's inquiry was that "senior bureaucrats have to protect themselves."

- Records management personnel morale being lowered by "indifference, bad manners, lack of communication and "them and us" attitudes.

One of the more common anecdotes when public servants gather and FoI is mentioned are the jokes about putting shredding machines into overdrive before the commencement of the new legislation. Professor O'Brien of the University of W.A. has provided one of the rare confirmations of this alleged response to the introduction of FoI legislation. He criticised a University of Western Australia memo which stated that "...the majority of our records have been well sanitized and...the established culling processes will eliminate most of the residual material which is questionable." Professor O'Brien raised the issue that such practices by government ministers are considered reprehensible, yet may be standard practices elsewhere.

The Nash Report and the University of WA case raise the following issues:

- it is possible to 'sabotage' FoI through administrative practices. It is impossible to know what is being done within Departments and by FoI Officers in relation to FoI and record keeping procedures. By submitting overlapping requests or pursuing the review process, some problems may be uncovered, but some practices by their very nature, would remain hidden. It is therefore important to ascertain:

- the perceived administrative benefits of avoiding FoI

- whether Departments, or sections within them, give in to the temptation of complying with FoI only when it is convenient, and relates to non-sensitive information

Research Objectives

-To determine the contribution made by FoI to improvements in records management.

-To ascertain the contributions of other factors which affect records management.

-To define the interrelationship between these factors and FoI (if any).

-To reach a conclusion as to the justification of current assumptions about the benefits of FoI in improving records management.

Approach

This case study took place in two rounds of interviews between March and June 1993. The first round of interviews were face to face interviews. Participants were promised that all information would be presented on an anonymous basis in this paper. Seven major Tasmanian agencies were chosen for this study. The selection was fairly random because the researchers had no idea at the time of the initial selection the nature of each agency's record management system nor an accurate picture of the each agency's initial experiences with the Tasmanian FoI Act which had only commenced operations on the 1 January 1993. In most cases the FoI Officer and Records Manager (or representatives) were present at the initial interview. The following questions were asked;

Question 1 -What was the Department's system of records management prior to FoI?

Question 2 -Has it changed with the advent of FoI? If so, how?

Question 3 -What other factors have contributed to changes in records management? eg new managerial policies, updates in technology, staff and departmental changes etc

Question 4 -Has FoI assisted, or hindered, other changes to records management? eg by necessitating a new system of information retrieval?

Question 5 -Do you perceive FoI as having a positive, negative or neutral impact on the Department's records management?

A second round of interviews took place after the author had received a copy of the Nash Report. The following questions were asked;

- To what extent is FoI having this negative effect in Tasmania?

- Why is this the case?

- Is it more likely at higher levels of management?

- How can record managers deal with these problems?

Results of the Survey.

There were a number of interesting results. First, it came as a surprise to find the low estimation of the positive impact on record management in each agency by most of the FoI Officers and Record Managers. Second, the wide variance in responses to the follow up questions based on the Nash Report was not expected.

The findings of this survey are in strong contrast to the literature referred to earlier especially the information outlined in the Annual Reports and presented to the Senate Standing Committee. One possible explanation for this is the different time periods of the two sets of findings. The positive outcomes from FoI for Commonwealth record management were largely associated with the experiences of the early and mid 1980s. Since that time the revolution in record management procedures (such as computerisation) and significant strides in the professionalism of record managers have taken place. In many instances these developments coincided, to one degree or another, with the early experiences with FoI in Victoria and at the Commonwealth level. It maybe that the connection between FoI and record management is a far more coincidental one rather than a causal linkage.

An alternative explanation is that this study was undertaken in the very early stages of the FoI experience in Tasmania. I certainly have the feeling in my own observations of various agencies and as a frequent user of FoI that more changes may be further in store in the area of record management practices for a number of agencies.

The variance in responses to the Nash scenario was a little surprising. Three of the agencies rejected the relevance of Nash's observations to their operations. The officers of two other agencies readily admitted that Nash's comments could be applied to their own Department. The remaining two agencies declared that Nash's comments had no application to their agency but were less certain about defending other Tasmanian agencies. This study only covers a small sample of agencies and the comments by the officers were made in fairly informal circumstances, nevertheless they do concern me both as lecturer in administrative law and as a keen supporter of the benefits that flow from FoI.

DEPARTMENT 1

1. The Department had a computerised records system prior to the introduction of FoI, available to all parts of the department. In central office the files are barcoded and each officer's desk is barcoded, so that files can be tracked very accurately.

2. The Department has introduced special FoI files, with capacity for documenting relevant information eg time spent evaluating information.

Currently many sub units of the department are reluctant to make use of the computerised records system, which they perceive as too time consuming and due to the small number of files, not worth implementing.

As a result, Head Office has no accurate information as to what records exist in these sub units. As FoI requests are handled from Head Office, this necessitates consulting with the relevant sub unit in relation to each request. Further, systems of record keeping vary dramatically between sub units causing additional administrative complications.

3. Updates in technology and the push for greater efficiency have had a significant impact on records management, however the perception was that the benefits in time and efficiency of excellent records management were not recognised by management. An example was the failure to force sub units to routinely use the computer system to enter records.

4.-FoI had not impacted on other changes to records management.

5.-On balance, FoI was seen to have had a neutral effect on records management in the Department. Unless there is a dramatic increase in the number of requests (an estimated 50 per year), the situation is unlikely to change.

6.-The Nash scenario might happen in some circumstances, but not in this Department. The Department was fully committed to the philosophy of FoI from the highest level. Although it is impossible to be sure what individual officers are doing, the central system does not manifest Nash type problems. Individual officers may be more circumspect, but this is a consequence of FoI causing people to be more objective in the information they record.

The FoI Officer

- believed that FoI would have an impact over time in the 'tightening up" of records management

Records Manager

Did not think FoI had affected records management.

DEPARTMENT 2

This department was an interesting case-study, as it has recently been created by amalgamating two previous departments (2A and 2B). As a consequence, the Department was described as being in a "dynamic and constantly evolving state."

1.-Prior to FoI and amalgamation, Department 2A had a computerised record management system Department 2B was still using a manual system. Department 2B records are now being integrated into the computer system, and due to the number of records, upgrading to a new computer system is under consideration.

2.-The Department has taken steps to improve its ability to monitor and track FoI requests.

3.-The impact of technology and development of records management as a profession were seen as significant.

4.-FoI did not affect other changes to records management.

5.-FoI was perceived as having long-term positive effects on records management, but these were seen as minor compared to the impact of technology. The major benefits were seen to be that officers would be more objective in the information they recorded, and in efficiency, due to the necessity for fast retrieval of records. The fact that in practice the user generates the requirements of records management, rather than the impact of legislation, was emphasised. As people become familiar with FoI, it was believed that they would adapt their record keeping.

The fact that the FoI Act places no time limit on the requests that can be made for personal information, but does not mention how long information must be retained, was of some concern. Currently, the provisions of the Archives Act dictate which information is stored.

6.- One of the interviewees remarked that it is possible to sabotage anything through administrative practices. There are no fail safe guarantees - just because FoI legislation has been passed doesn't mean appropriate practices and procedures are in place. His opinion was that the Department does not have such problems, but acknowledged that it is impossible to be categorically sure. He commented that Nash must have been "pro-active."

DEPARTMENT 3

1. A single user computerised records management system was introduced in late 1985, dealing with the major sub unit's records and the Departmental administrative records. Other Subagencies, administer their own records.

2. FoI has not affected the system of records management.

3. Technological developments had improved records management, although not all files were yet on the database.

4. FoI had no effect on other changes to records management.

5. FoI was perceived as having a neutral impact on records management.

6. The problems identified by Ben Nash were raised, but the possibility of occurrence within the Department was rejected.

The Records Officer

Remarked on the lack of support and respect for records management. The Department was one of the last to become computerised, the system was archaic and, although other departments had updated their systems, improving records management was not a priority in this Department. The officer's view was that managers are not aware of the benefits flowing from improved records management, and a change in attitude at the managerial level is required before practices can be significantly reformed.

DEPARTMENT 4

1. Over the last four years the Department's records have gradually been computerised, using the X document tracking system.

2. The FoI Officer has adapted X to register and track FoI requests (previous use within the Department was to track Ministerial correspondence). This proved to be somewhat inadequate, as only one document could be dealt with at any one time, so now also use program Y to overcome this problem.

3. The FoI Officer's perception was that except for computerisation, records management within the Department had not substantially changed. The records management policy had been set "ages ago" and needs updating. The need for education of personnel in relation to correspondence being placed on files correctly and folioing etc was noted.

4. FoI has not, and is unlikely to in the future, assist or hinder other changes to records management.

5. FoI will have a positive effect on records management because people will become more objective in the information they record. Currently many subjective judgements are made in respect of people and issues.

6. The FoI Officer acknowledged that all the problems noted by Nash would be occurring to a certain extent within the Department. He remarked that middle and upper management were indifferent to correct records management, and have become even more wary about what they record.

DEPARTMENT 5

1. The Department has a computerised records management system, but not at all locations. As a result of the amalgamation of Agency 1 using System A, Agency 2 using System B and Agency 3 using System C into the new Department 5, there is no uniform system used.

2. No. The FoI Officer felt that it would be better if one system was being used within the Department.

3. The devolution of records within agencies (ie transfer from central office into branches) has affected records management. This can result in information being stored in conflicting ways, and a tendency to forget that all departmental records are part of the corporate memory.

4. FoI has not hindered or assisted other changes to records management, and is not likely to in the future. A comprehensive system was perceived as being preferable to the current state, but cost and administrative efficiency would determine implementation rather than FoI.

5. The effect of FoI on records management was perceived as essentially neutral. The FoI Officer's view was that until someone "got their fingers burnt" nothing would change, but that subsequently more caution may be taken.

6. It was acknowledged that some people within the Department were already more wary of what they recorded due to FoI. The tendency not to respect records management principles was noted. In relation to devolution of records, some subagencies were perceived as failing to direct the records management process, which was a danger. Some people maintain their own little systems and don't realise that all records are the property of the Department. The case of an officer who took records with him on departure was cited.

DEPARTMENT 6

1. Since 1988 the Department has had a computerised records management system, initially System A but now updated to System B.

2. FoI has not affected the process of establishing a fully computerised system.

3. Updates in technology and organisational changes were perceived as the major factors affecting records management within the Department.

4. The perception was that FoI would neither assist nor hinder other changes to records management. Once a computer system had been implemented, FoI would not justify upgrading. Technological improvements were not perceived as a function of FoI.

5. FoI was perceived as having a positive effect on records management by the FoI Officer, who cited improvements in objectivity as the major benefit.

The Records Manager perceived its effect as more neutral. "If the result is that information comes out of the woodwork, then FoI is positive, but if the hoarders hoard more, then it will have a negative effect." The Records Manager noted that personnel are making more file notes eg recording telephone calls etc.

6. The Nash scenario was rejected as an example of "old attitudes" no longer prevalent in the Department. The lack of trust in the system is present to a certain extent anyway, and FoI might only exaggerate this. FoI was perceived as a status lifter for records management personnel.

DEPARTMENT 7

1. This Department has a mixture of manual and computerised systems. The Department is divided into four districts, each with its own system, and there is a central Administrative system. The computerised system is gradually being implemented, but there is a backlog and the most used information is transferred first.

2. The system has not changed with the advent of FoI.

3. Technology and state government policies eg Archives, were the major contributors to changes in records management. The Archives Act was perceived as presenting some difficulties for the Department.

4. FoI may contribute to other changes in records management, but these are more likely to be finance driven.

5. The Department appeared to be ambivalent about the impact of the FoI Act. They noted that requests had been made almost exclusively by politicians and lawyers, which was not the intention of the Act according to their interpretation. They suggested FoI may cause the Department to be less forthcoming in what records they keep and release. The officers at the interview (three in total) admitted that a particular collection of information had been destroyed due to fears of FoI access. The officers expressed general concerns about the impact of FoI on their department's operations and their view was that they would have to get around the Act.

6. The Nash scenario was perceived as a "management problem within that Department" and not as having general application.

Conclusion

I have argued in a recent editorial of the FoI Review that there is an urgent need for the creation of an Administrative Auditor-General or the extension of current Auditor-General functions to include the independent pursuit of administrative malpractice. Administrative practices of the public service need to be audited and shortcomings to be made public and acted upon. As I mentioned in my editorial the coverage and activities of an Ombudsman are restricted until someone is informed enough to make a complaint that can fairly accurately pinpoint the location and extent of the administrative malpractice or shortcomings. At the moment the primary duty of an Ombudsman is summed up by The South Australian Ombudsman Report 1983-84 at page 67:

"The primary duty of an Ombudsman is to serve those who have bothered to complain"

Too many practices of government and the Public Service are based on the path of least resistance rather than adherence to the law, normal and fair procedures and processes. The details supplied in the Nash Report and the inconclusive, but indicative, findings of the Tasmanian case study outlined in this paper are clear warnings about leaving the solution to possible side effects of the introduction of FoI legislation.

I concluded my editorial with the following comment. "Too many times I have encountered the saga related by Bruce Smith in his article "Indiana Smith and the Annual Report Treasure Trove," in (1992) FoI Review 41 not to wish for another defender of truth, openness and accountability". All record managers should welcome such a champion to their cause.