An Overview of the Consultation Paper on Archives Law

Introduction

Archives record decisions, actions and memories. They are a unique and irreplaceable heritage passed from one generation to another. Archives and records are also tools by which governments can make themselves accountable. Well-managed archives and records enable people to understand the "who, when, where, how and why of government actions". Archives are therefore central to good governance.

In Hong Kong, the management and archiving of government records are regulated under an administrative regime. The Government Records Service ("GRS") is tasked with overseeing the overall management of government records, and ensuring that they are properly managed whilst those with archival value are selected for preservation and public access. Government bureaux and departments ("B/Ds") are required to establish their records management programmes in accordance with the administrative guidelines and requirements issued by the Government in relation to the management of their records.

This administrative public records management system has been subject to scrutiny in recent years, for example the reports issued by the Civic Exchange in 2007 and 2011, report by the Audit Commission in 2011 and report by The Ombudsman in 2014. Comments are also found in news articles and other publications.

This article highlights a number of issues of interest so as to galvanise the public, in particular the legal profession, to respond to the Consultation Paper:-

  • Governance of GRS;
  • Administration and operation of GRS – creation of records;
  • Impact of records-related legislation on administrative guidelines on records management;
  • Compliance framework of public records management regime;
  • Archives Law for Hong Kong? and
  • Coverage of public records management regime.

Governance of GRS

Currently, the GRS is under the auspices of the Administration Wing of the Chief Secretary for Administration's Office. Institutionally, no external body provides advice to the GRS.

In Australia, England, Ireland and Singapore, the administrative head of the archival authority is placed under a responsible Minister. The Minister may give directions to the administrative head in relation to the latter's performance of statutory duties and functions. The exception is New Zealand, where although the Archives New Zealand is also placed under a Minister, the Public Records Act 2005 expressly requires the Chief Archivist to act independently without being subjected to the Minister's direction.

An advisory council is established under the archives law in Australia, England, Ireland and New Zealand (but not in Singapore). The function of the advisory council is mainly to provide independent advice to the Minister on recordkeeping and archives matters. Advisory councils in Australia, Ireland and New Zealand and the National Library Board in Singapore are required to submit to the Minister an annual report, which will ultimately be presented to the Parliament.

Consultation questions 1

(i) Should the current placement of GRS within the Government continue?

(ii) If the answer to (i) is in the negative, in what way should the GRS' placement be changed, and what are the reasons for your suggestions?

(iii) Is there a need for the appointment of an advisory body to provide advice on public records and archives management matters?

(iv) If the answer to (iii) is in the affirmative, what should the role, composition and functions of the advisory body be?

Administration and operation of GRS – creation of records

One aspect studied by the Sub-Committee relates to the obligation to create records. In Australia and Singapore, promoting the creation of records is featured as one of the functions of the National Archives of Australia and National Library Board. New Zealand is the strictest, in that it imposes a positive legal duty upon public office or local authority to create records, the wilful or negligent breach of which constitutes a criminal offence. The Public Records Act 1958 in England and the National Archives Act 1986 in Ireland are both silent on the duty to create records, although The National Archives in England has promulgated guidelines in this respect. Apart from New Zealand, the archives laws of the other jurisdictions reviewed do not contain provisions imposing specific obligation upon public authorities or their staff to create records. Failure to create records, per se, is also not made a criminal offence in such other jurisdictions.

In Hong Kong, although the requirement to create records is not specified in General Circular No 2/2009 “Mandatory Records Management Requirements” (“GC09”) as a mandatory requirement, public officers are duty bound to create and capture adequate but not excessive records, failing which disciplinary sanction may follow.

Consultation questions 3

(i) Is the current obligation for the creation of public records, which is subject to the civil service general regulations in conjunction with the guidelines on creation and collection, adequate in ensuring the proper creation of records?

(ii) If the answer to (i) is in the negative, in what way can the current obligation be improved and what are the reasons for your suggestions?

Impact of records-related legislation on administrative guidelines on records management

Administrative rules and guidelines, by nature, do not carry legal force. Where the rules and guidelines issued by the GRS conflict with laws that carry implications for records management, the latter always prevail. The concern is that as these administrative rules and guidelines and laws both pursue important and legitimate objectives, the tension between them ought not invariably be resolved in favour of the latter.

In the Consultation Paper, the Sub-committee addresses this concern primarily through discussing the (1) Personal Data (Privacy) Ordinance (Cap 486), and (2) Census and Statistics Ordinance (Cap 316) which are specifically mentioned by the Civic Exchange.

Consultation questions 7

(i) Has the current Cap 486 struck the right balance between the preservation of archives and protection of personal data?

(ii) If the answer to (i) is in the negative,

(a) what in your view is the right balance?

(b) what other measures can be adopted to achieve this balance? and

(c) what are the reasons for your suggestions?

Consultation questions 8

After careful deliberation, the Sub-committee’s provisional view is to follow the approach of the jurisdictions where census information is preserved.

(i) Should census schedules be preserved as archives after a census exercise?

(ii) If the answer to (i) is in the affirmative, should the subject individual’s consent be required as a precondition for preserving his census schedule and what are your reasons?

Compliance framework of public records management regime

Another observation made about the administrative records management regime in Hong Kong is the GRS' lack of effective measures to ensure B/Ds' compliance with the relevant rules and guidelines.

In Hong Kong, GC09 issued in April 2009 sets out mandatory recordkeeping requirements for B/Ds' compliance. Some of the mandatory requirements under GC09 are:-

  • To print-and-file e-mail records;
  • To transfer records having archival value to the GRS according to the respective disposal schedules;
  • To obtain prior agreement from the GRS Director before destruction of records, and ensure that the records disposal process is properly supervised; and
  • To put in place arrangements to ensure proper custody and storage of records, and investigate any loss or unauthorised destruction of records, and consider whether any disciplinary action or other administrative action is necessary.

Government servants are liable to disciplinary action if they fail to comply with requirements in GC09 or other government regulations and circulars pertaining to records management. Possible punishment includes verbal or written warnings, reprimand, severe reprimand, demotion, compulsory retirement and dismissal. According to the GRS, in the three years from 2015 to 2017 B/Ds instituted disciplinary actions against 12 staff who were involved in 11 loss or unauthorised destruction of records cases.

It is noteworthy that the archives law in Australia, Ireland and Singapore is silent on the consequences of non-compliance with the duties and requirements therein, although certain serious conducts (analogous to, inter alia, theft, criminal damage, etc) are criminalised.

In Australia, certain specific dealings with Commonwealth records do attract criminal sanctions under the Archives Act 1983. These include destruction or other disposal, transfer, alteration of and damage to a Commonwealth record otherwise than required or permitted by law or the National Archives of Australia or in accordance with an approved practice or with a normal administrative practice. It is also an offence for a person to engage in conduct resulting in an addition to or an alteration of a Commonwealth record which has been in existence for over 15 years, unless it is done as required by law, or with the National Archives of Australia's permission or in accordance with its approved practice.

In Ireland, the National Archives Act 1986 provides that it is an offence for any person to remove archives from the National Archives of Ireland otherwise than provided by law, or conceal or damage archives, or without the consent of the Director of the National Archives of Ireland remove or destroy archives.

In Singapore, the National Library Board Act makes it clear that it is an offence for any person to (i) take or send out of Singapore any public records without the written permission of the National Library Board; (ii) write on, mark, inscribe or otherwise deface any public records; or (iii) mutilate, excise or otherwise damage them.

On the other hand, no offence provision is found in the Public Records Act 1958 in England, which largely adopts a "naming and shaming approach". In contrast, the Public Records Act 2005 in New Zealand expressly provides that wilful or negligent contravention or non-compliance with any provision therein is a criminal offence. It appears that the approach adopted by New Zealand stipulating that non-compliance with any provisions of the 2005 Act will be a criminal offence is not a common feature found in other jurisdictions studied by the Sub-committee. In addition, parliamentary scrutiny is seen in all five jurisdictions through annual reporting.

Whilst sanction may deter non-compliance, training and education can be more effective in fostering a stronger culture of compliance. The GRS is responsible for providing training to records management personnel and general records users in B/Ds, in the form of classes, topical or in-house seminars, briefings, workshops, etc. In Australia, England, Ireland, New Zealand and Singapore, the archival authorities also provide training, guidance, or advice on records and archives management.

The Sub-committee’s provisional views are that a good public records management regime must include adequate and effective measures to ensure due compliance. Whilst these measures may take the more stringent form of laws or mandatory requirements, equally important are other measures which seek to develop a stronger culture and promote higher awareness of proper records management.

Consultation questions 10

(i) Are the existing measures sufficient in ensuring B/Ds' compliance with their records management obligations?

(ii) If your answer to (i) is in the negative, what additional measures would you suggest and what are the reasons for your suggestions?

Archives Law for Hong Kong?

The Sub-committee takes the view that there are considerations in favour of the enactment of an archives law in Hong Kong, as well as practical concerns over its implementation. On balance, its provisional views are that it does see a case for the introduction of an archives law to further strengthen the management, protection and preservation of public records and archives in Hong Kong.

Consultation question 11

Do you think there is a case for introducing an archives law to strengthen the current public records and archives management framework and what are your reasons?

Coverage of public records management regime

There have been comments that the coverage of the existing records management regime is too limited. Other than B/Ds, at present only two public bodies in Hong Kong, namely, the Independent Commission Against Corruption and Hong Kong Monetary Authority have followed the mandatory records management requirements promulgated by the Government.

The Sub-committee's study of the overseas jurisdictions shows that there is no universal approach on the definition of public bodies. Similarly, no underlying rationale or criteria can be readily discerned except that a list of factors has been drawn up for deciding whether a body is a "public office" in New Zealand. The extent of oversight by archival authorities over the records management of public bodies also varies between jurisdictions.

The Sub-committee conducted two rounds of survey in June 2016 and February 2017 to obtain information about the records management system and practices of public bodies in Hong Kong. The foregoing survey findings cast real doubts, at least for now, on whether public bodies in Hong Kong are generally ready and willing to be covered by a uniform mandatory records management regime as suggested by The Ombudsman.

The Sub-committee observes that in the light of the diverse nature, functions, structure, powers, sizes and resources of public bodies, their individual circumstances must be carefully considered (with prior consultation or dialogue if need be), before imposing on them any uniform mandatory records management regime, whether under the current administrative regime or by way of legislation. In any event, the current lack of qualified professional archivists in Hong Kong may pose a particular challenge.

As regards the scope of public bodies to be covered, the Sub-committee’s provisional views are that it is more advisable to follow the approach in England, Ireland, New Zealand and Singapore, ie enumerating from time to time specific bodies that should be subject to the public records management regime. In respect of the extent of oversight by the archival authority, the Sub-committee considers that a "bespoke" approach is more appropriate.

Consultation questions 12

(i) Do you agree with the Sub-committee’s provisional views?

(ii) If your answer to (i) is in the negative, what are your reasons?

Consultation

The Sub-committee believes government records form an integral part of the community's shared heritage that belongs to all, and it therefore seeks to engage as much of the public as possible in this consultation exercise by asking various consultation questions in chapters 4 to 10 (reproduced in chapter 11 at one go).

Jurisdictions: 

Chairman of the Law Reform Commission of Hong Kong’s Archives Law Sub-Committee

Andrew Liao, a practising Senior Counsel, is the Chairman of the Law Reform Commission of Hong Kong’s Archives Law Sub-committee. In his many years of public service, he has served, amongst others, as a Recorder of the Court of First Instance of the High Court, and a member of the Law Reform Commission of Hong Kong and its Copyright Sub-committee. He was awarded the Gold Bauhinia Star in 2008.