Will the reform of FOIA create empty archives: The myth, the threat, or the reality?

An US FEA Business reference model. FEA (2005)...

An US FEA Business reference model. FEA (2005) FEA Records Management Profile, Version 1.0. December 15, 2005. (Photo credit: Wikipedia)

In the recent discussions around the future of FOIA, there have been important actors missing: records management and archives. Their absence creates three problems.  Two are understandable and relatively minor. The third is the most subtle and the most dangerous to the Country’s memory.  Records management and archives cannot be separated from freedom of information.

The first problem is that the review has focused on the demand side of the FOIA.  It is understandable, in a sense, because it is the most visible. The powerful, either people or organisations, do not like to be held to account publicly in ways that they cannot manage. In a sense, this is human nature as Machiavelli would say.  The demand side has gained this attention because of because critics have focused on the “cost” of FOI requests created by “frivolous requests”.   At the same time, this approach covers the decision making and the “politics” of FOIA requests.

The second problem is that concern with the immediate supply side issues, records management, has been largely overlooked.  I have discussed that issue before with this post. [Insert link]  In the 113 written submissions, there are only seven that mention records management. Of the seven only one (number 100) gives it an extended treatment. The concern with the supply side has been limited, except to look at how much of a “burden” FOIA requests are for an organisation. On the wider issue of FOI and records management the research has been meagre. Only a handful of studies exist and none of his has looked at the historical relationship for the past 7 years. There has been research by IPSO MORI [link] on the cost of requests and by the UCL on the costs of requests and its effect on town hall transparency. The UCL has done a yearly survey [link] of FOI officers to consider its cost and its burden, although the focus is on the process and records management is only considered incidentally.  Elisabeth Shepherd has done some good research back in 2008-2009 on the need to meet the demand.

Records management may be overlooked because it is hidden.  One could say that it has been taken for granted.  Most requests seem to be for current information (information less than 3 years old).  These records are accessible because they are stored electronically. The “cost” is more the organisation’s decision making process than retrieving the information.  For the most part, organisations meet their records management responsibilities because they are structured for regulatory compliance. Where records management is closely linked to regulatory compliance it is well supported.  However, records management’s silence holds a deeper problem. There is a danger that FOIA, and the attempt to avoid it, may create a historical problem: empty archives.

What is the empty archives syndrome?

Harriet Jones raised this concern about FOIA’s effect on archives back in 2004.  She focused on Sweden’s experience where FOIA led to empty archives.  The syndrome reflects a culture of information evasion.  Instead of creating increased access Jones found that FOI has been avoided.  In Sweden more openness meant that scrutiny and accountability have been weakened because politicians and the bureaucracy work to avoid disclosure.  Instead, an oral culture of decision making exists. Jones, echoing Inga-Britt Ahlenius, the former head of the Swedish National Audit Office, worried that decisions of interest would not be written and unavailable for scrutiny.  She pointed out that Ahelenius called the openness a myth because of this oral culture.

The concern in the UK is that a similar oral culture may develop.  At one level, that concern also misses a subtle point: decisions have consequences. The consequences can be tracked and traced. As such, a decision can be seen by its effects and it means we have to scan the detritus of a decision to understand it.  Moreover, one has to look at the secondary actors, those who will take notes for themselves to uncover the issue. In a strictly oral culture, the various parties to a decision could easily interpret a meeting or a decision to favour their own interests.  However, the concern still exists because of the reaction to FOIA. We see ministers seeking ways to avoid FOIA. In other cases, there are attempts to avoid taking notes so that material cannot be disclosed under FOIA.  At the same time, the minutes within Cabinet meetings have changed so that people are no longer identified according to the decisions.  One has to be concerned because as Jones pointed out,

“I can assure you that the following fact is true: after a quarter of a millennium of FOI in Sweden, no minutes are taken at Cabinet meetings

Empty archives present one possible future for the UK. If it is to avoid that fate, it has to be considered how the review of FOIA relates to records management and relates to archives.  The danger is real because, as Jones points out, FOI may allow better understanding of contemporary events but weaken the historical access because of the concern to limit exposure to future FOIA requests.

What is to be done?

What is clear is that the National Archives need a greater say.  If one possible fate is empty archives, they need to have a view. The ICO needs to strengthen its focus on s.46, the recommended code of practice on records management. Work needs to be done to avoid the possibility of an oral culture.  Finally, we need to strengthen the accountability culture for current democracy and historical records.

*UPDATE*

I wanted to let readers know that Professor the Lord Hennessy of Nympsfield did refer to the danger of empty archives in the UK when providing evidence to the Justice Committee on 27 March 2012.  You can find a link to that reference here : http://www.parliamentlive.tv/Main/Player.aspx?meetingId=10587&st=10:30:55 the discussion comes about 15 minutes into the session. (Credit to @foimanuk for the reference)

 

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About lawrence serewicz

An American living and working in the UK trying to understand the American idea and explain it to others. The views in this blog are my own for better or worse.
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