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Study of Legislation Affecting Records and Archives in Commonwealth Countries

Michael Roper former Honorary Secretary of ACARM
The effective management of records and archives throughout their life cycle is a key component of national development. Unorganised or otherwise poorly managed records mean that government does not have ready access to authoritative sources of administrative, financial and legal information to support sound decision making or the delivery of programmes and services. Nor does the government have the means of holding itself accountable for what it has done or upholding the rights of its citizens. Furthermore, if records are not well organised during the earlier stages of their life cycle, those of enduring value will not be readily identified and safeguarded as part of the national archival heritage.

Comprehensive, up-to-date records and archives legislation is a critical prerequisite of effective, life-cycle records and archives management, since it establishes the framework within which appropriate records and archives systems can be created and provides the authority necessary for their implementation.

Legislation relating to public records or national archives exists in some form or other in most, though not all, Commonwealth countries, but much of that legislation dates from shortly after independence and is now urgently in need of review and modernisation. The weaknesses which can be found in older public records and archives legislation stem largely from its failure to recognise the life-cycle concept of records and archives and the importance of managing them in a continuum from their creation to their final disposal either by transfer to the national archives or by authorised destruction. This is often compounded by the inflexibility of the legislation in the face of the changing nature of records and archives in an electronic age.

Another factor is a tendency to enact legislation which impacts upon records and archives without reference to public records or national archives legislation, in particular freedom of information and privacy legislation. Freedom of information (or access to information) legislation is being introduced in more and more countries as part of the general movement towards greater accountability and transparency on the part of the democratic state in relation to its citizens. It usually applies only to the public sector, sometimes including parastatal organisations. The mirror image of freedom of information legislation is privacy legislation, which protects information held by organisations about the private affairs of individual citizens. Sometimes it takes the more limited form of data protection legislation, protecting such personal information only when it is held in computer systems. Unlike freedom of information legislation, privacy legislation usually applies to the private as well as the public sector.

Some countries have embarked recently on the review and modernisation of their records and archives legislation; others have introduced freedom of information and privacy legislation. Given that the Commonwealth shares a common heritage of administrative and legal systems, their experience will be relevant to those who have yet to do so.

Accordingly in 1999 ACARM initiated a project which studied existing public records and national archives legislation in Commonwealth countries, together with other legislation which has an impact on records and archives; best-practice guidelines were derived from that study and will be disseminated through regional workshops.

The Objective The objective of the project is to empower countries considering modernising their records and archives legislation or introducing freedom of information and privacy legislation by putting at their disposal best-practice guidelines drawn from experience elsewhere in the Commonwealth.

The Project
The project will have three stages:

a survey of relevant current legislation in Commonwealth countries;
the testing and publication of best-practice guidelines drawn from an analysis of that legislation;
the utilisation of those guidelines in regional workshops to disseminate best practice.
The Survey

The identification of relevant legislation has been effected largely by a literature search. The International Council on Archives has published in its journal Archivum seven volumes of texts of national records and archives legislation, the latest volumes taking the series to 1994. This source provided a basic framework for the research, but some Commonwealth countries have enacted new records and archives legislation since 1994 and it is known that there are gaps in the Archivum coverage, especially in respect of other legislation which impinges on records and archives.

Accordingly the literature search has been backed up by a survey of all Commonwealth national archives, or their equivalents, conducted by regional rapporteurs. This has had a dual purpose:

to identify and obtain copies of legislation later than or omitted from the Archivum series, including the latest drafts of pending legislation; and
to canvas views as to the strengths and weaknesses of current legislation, whether old or recent.
The preliminary analysis of the legislative texts to identify common features and special provisions and to assess the strengths and weaknesses of existing or planned legislation has been undertaken by the regional rapporteurs.

The Product
The regional reports have been consolidated by a project manager into an overall report on the current state of legislation bearing on records and archives throughout the Commonwealth. From these a series of practical guidelines were developed.

The consolidated report and best practice guidelines were tested at an ACARM workshop held under the umbrella of the International Congress on Archives in Seville (Spain) in September 2000.

The end product will be a definitive study with guidelines, which will be circulated through the normal ACARM communications network and made available to other Commonwealth organisations to which it is relevant.

Using the Product
The product will be of value not only to archivists and records managers but also to parliamentarians, administrators and lawyers within the Commonwealth who might become involved in introducing or amending public records and archives legislation or other legislation which will have an impact on records and archives.

The product will be reinforced by a series of six regional workshops over the period 2003-2006. It will be convenient for these to be held in conjunction with the respective regional branch meetings of the International Council on Archives.

The Commonwealth Foundation has provided ACARM with activity grants to fund the project.

Next Steps
The first of the regional workshops was held in July 2003 in Wellington, New Zealand, following on from a PARBICA meeting. Further workshops are being planned.

Posted: 10/22/2012 (10:36:18 AM)

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