Archivists at Risk: Accountability and the Role of the Professional Society

Sue McKemmish is an Associate Professor in the School of Information Management and Systems at Monash University. With her Monash colleagues she has developed innovative, integrated, multi-disciplinary approaches to records management, archival and information management education at postgraduate and undergraduate levels within the framework provided by records continuum and information continuum theory. Professor McKemmish was Principal Chief Investigator for the 1998-99 SPIRT research project which developed a national framework for standardising recordkeeping metadata. She brings to her role as educator and researcher 15 years of industry experience at the National Archives of Australia and the Public Record Office of Victoria, and has post-graduate qualifications in history and librarianship. She was editor of Archives and Manuscripts in 1997-1998, and has published widely in the field of recordkeeping. Professor McKemmish is a research associate of the new Enterprise Distributed Systems Technology National Collaborative Research Centre and a Laureate of the Australian Society of Archivists.

Glenda Acland has been an archivist/ recordkeeping professional for more than twenty-five years. In that time she has been employed at institutions such as Australian Archives and the University of Queensland. Since 1998 she has worked as a freelance recordkeeping consultant, educator and researcher, mainly for Monash University, where she has been Research Consultant for the SPIRT Recordkeeping Metadata Research Project. Her professional interests include articulation of records continuum thinking, professional identity, electronic recordkeeping and enterprise recordkeeping regimes. These interests are reflected in a range of publications the best known of which are "Archivist - Keeper, Undertaker or Auditor" (1991), "Managing the Record Rather than the Relic" (1992) and the Glossary of archival terminology in Keeping Archives, 2nd edition. Glenda is a well-known speaker at Australian and International conferences.

Abstract
This presentation raises key issues relating to the accountability of recordkeeping professionals to society, with particular reference to the role of professional associations. The so-called Heiner Affair and the recent court case in which the Archives and Records Association of New Zealand (ARANZ) and the New Zealand Genealogical Society took the New Zealand government to court over the role of the National Archives are also explored as a prelude to a wide-ranging discussion by conference participants.

Archivists at Risk: Accountability and the Role of the Professional Society

By Associate Professor Sue McKemmish and Glenda Acland

In our presentation this morning, our role is to set the scene for a discussion that addresses the question: What is the accountability of a recordkeeping professional association to society?

In order to set the scene we need to touch on the role of recordkeeping in public accountability and what constitutes accountable recordkeeping in a democratic society. We will then introduce the theme of accountable recordkeeping and the role of the professional society with reference to two topical cases; the direct action taken by the Archives and Records Association of New Zealand (ARANZ) and the New Zealand Genealogical Society against the New Zealand government in relation to the role of the National Archives, and the position taken by the Australian Society of Archivists (ASA) on the Heiner Affair.

In this presentation, we take a broad view of the role of recordkeeping in public accountability, a view which is associated with records continuum thinking. It defines the role of recordkeeping in relation to accountability as:

• facilitating good governance
• underpinning accountability mechanisms
• constituting corporate, national and societal memory
• constructing individual, community and national identity
• providing authoritative sources of information.

One of the best statements in recent years relating to the purposes of proper recordkeeping in society came from the Royal Commissioners who investigated the commercial activities of the Western Australian government from the late 1980s, which came to be known as "WA Inc." It refers broadly to the role of recordkeeping in relation to effective democratic accountability and historical accountability.

Proper recordkeeping serves two purposes. First it is a prerequisite to effective accountability. Without it critical scrutiny by the Parliament, the Auditor-General and the Ombudsman can be blunted. Secondly, records themselves form an integral part of the historical memory of the State itself. A recordkeeping regime that does not address both requirements is inadequate.
The record creation, maintenance and retention practices of government and its agencies are matters for which ministers and chief executive officers bear a particular responsibility. These matters, doubtless, are ones for which those officials are to be held accountable in their management of their portfolios, departments and agencies. But overall responsibility for records cannot be left with these officials. A separate body should be entrusted with the general oversight of public records, equipped with powers adequate to the purpose.
(Western Australia, Report of the Royal Commission into Commercial Activities of Government, 1992, Part II, p.4.6)

This is typical of the definitive statements about the role of recordkeeping in relation to good governance and democratic accountability which have come out of the various Royal Commissions and inquiries into cases of corporate and government corruption and mismanagement in Australia in the 1980s and 1990s, including the Fitzgerald Inquiry in Queensland. These cases have involved the fall of governments, the collapse of state banks, the bankrupting of the empires of the so-called corporate cowboys – "built on mountains of debt and creative accounting" – the prostitution of professional management, accounting and auditing standards, and the impotence of the regulatory authorities, the "muzzled watchdogs which failed to bark"1. The casualties included Australia's largest industrial group and its three largest television networks, Victoria's largest building society, Australia's three largest merchant banks – and of course thousands of individual shareholders and members of the public who ended up underwriting the debts.

What the Commissions and inquiries also typically reveal is a failure both in public accountability and in recordkeeping accountability. Their findings highlight the significant links that exist between mismanagement, corruption and abuse of power on the one hand, and poor and negligent recordkeeping on the other. As the Commonwealth Auditor General noted in relation to the notorious "Sports Rorts Affair", "poor recordkeeping attracts corruption like flies to a carcass".2

Having outlined the role of recordkeeping in public accountability, let's explore what constitutes accountable recordkeeping in a democratic society by briefly addressing the questions:

• What is an accountable recordkeeping regime?
• What is the role of the archival authority in an accountable recordkeeping regime?
• What characterises failures in recordkeeping accountability?
• What organisational and societal risks are associated with failures in recordkeeping accountability?

So, what constitutes an accountable recordkeeping regime? This is a question that is being addressed by the Records Continuum Research Group at Monash3. So far the Group has concluded that the components of accountable recordkeeping include:

1. • Accountable recordkeeping regimes at macro level. An accountable recordkeeping regime is defined as a unified framework of identified policy objectives and implementation directives, and a consistent strategic orientation that operate throughout a jurisdiction over time. Within a recordkeeping regime, an integrated set of laws, rules, policies, directions and procedures are acknowledged, enforced & monitored. Responsibilities and accountabilities are specified. (Monash Records Continuum Research Group, 1998)
2. Independent recordkeeping authority with powers adequate to its purpose
3. Professional standards and best practice promulgated and accepted by society Examples of such standards and best practice include:
   • Standards Australia AS 4390 Records Management Standard, Homebush, 1996
   • The proposed ISO Records Management Standard, based on AS 4390
   • The Australian Records and Archives Competency Standards, National Finance Industry Training and Advisory Body Ltd, Melbourne, 1997
   • International and national archival descriptive standards, eg ISAD(G)
   • Australian recordkeeping metadata standards currently in development4.
4. Compliant recordkeeping systems at micro level.
   • A compliant recordkeeping system implements the requirements of a recordkeeping regime in an identifiable unit in the jurisdiction (eg a government agency or company). It encompasses all records systems, policies, procedures, business rules, responsibilities, accountabilities, resources and technologies in the unit. (Monash Records Continuum Research Group, 1998)
5. Beneficial alliances with other accountability players and relationships of trust with accountability stakeholders
   • The accountability players at micro level include: CEOs, senior managers, information managers, auditors, lawyers, FOI officers, business process designers, software vendors, IT professionals, contract managers, compliance and risk managers, and service providers.
   • At macro level, accountability players include: sociologists, historiographers, information and cultural players, society's watch dogs, standard setters, regulatory authorities, IT shapers, and law makers.
   • Accountability stakeholders include: all of the above plus citizens, clients, consumers, individually and collectively.

In recent years there have been many inspiring statements relating to the role of an independent archival authority. Take as an example, United States Archivist John Carlin's vision for the National Archives and Records Administration:

The National Archives is not a dusty hoard of ancient history. It is a public trust on which our democracy depends. It enables people to inspect for themselves the record of what government has done. It enables officials and agencies to review their actions and helps citizens hold them accountable. It ensures continuing access to essential evidence that documents

• the rights of American citizens
• the actions of federal officials
• the national experience …

NARA ensures for the Citizen and the Public Servant, for the President and the Congress and the Courts, ready access to essential evidence. (John Carlin, "Ready Access to Essential Evidence": The Strategic Plan of the National Archives and Records Administration 1997-2007, at http://www.nara.gov/nara/vision/naraplan.html)

And here is a paraphrasing of an Australian view which adopts the notion of the "single mind":

The "single mind" is concerned with the delivery of effective public recordkeeping regimes to support democratic accountability and the preservation of collective memory, and to assure public access to "essential evidence" of government activity in a world in which records are increasingly managed and made accessible in electronic networked environments.
Draft Recommendations paper 4, Review of the Archives Act 1983, December 1997)

Most archival laws in Australia and the New Zealand law establish independent archival authorities which have a varied range of responsibilities relating to establishing and monitoring accountable public recordkeeping regimes – for current and historical records. These laws to a greater or lesser extent embody the views of the role of a government archival authority expressed by the WA Royal Commissioners, Carlin and the Australian Law Reform Commissioners. In Queensland, a similar view was taken by the Electoral Administrative Review Commission in its review of archival law in the aftermath of the Fitzgerald Inquiry.

At Monash we have researched a range of accountability crises from a recordkeeping perspective. At macro and micro level the reports referenced, whether they refer to a more traditional setting or an emerging environment, chronicle typical failures in recordkeeping as presented below5.

And over and over again, the point is made that inadequate recordkeeping regimes limit the ability of society's watchdogs and corporate compliance managers to enforce accountability – in governance and corporate affairs, and in recordkeeping.

It is also possible to characterise the types of risks associated with recordkeeping failures. The consequences of recordkeeping accountability failures are analysed below in terms of organisational and societal risks6.

Turning to the theme for our discussion, the accountability of a recordkeeping professional association to society, let's look at two topical cases in which the government of the day has challenged in a fundamental way the independence of the archival authority and its capacity to play a role in ensuring accountable public recordkeeping.

The first case relates to the action taken by the New Zealand's Department of Internal Affairs in subsuming the archival function to the cultural heritage function by administrative arrangements that allegedly diminished the autonomy of the National Archives, and compromised the Chief Archivist's capacity to act independently. 7 The second case relates to the Heiner Affair and the position taken by the Queensland government on the role of the State Archivist in relation to the disposal of public records, in particular that the State Archivist should only consider the historical value of records and does not have a role to play in relation to accountable public administration. 8

The key issues in the New Zealand case relate to the following questions:

• What characterises an independent archival authority?
• What powers are adequate to its purpose?
• What is the role of an independent archival authority in the delivery of public recordkeeping regimes that support democratic accountability, preserve collective memory and assure access to essential evidence relating to citizens' rights?

In the Heiner Affair, there are a range of complex issues. Some of them are explored below.

Firstly there were the destructions in 1990 of the records of the abortive Heiner inquiry into the management of the John Oxley Youth Centre. We now know that there were a number of destructions – one of which was authorised by the State Archivist, and others that were not. And it also now appears that there were two dimensions to the destructions. One was the up-front issue that the Heiner inquiry had been illegally constituted and therefore its officers exposed to legal liability – and this was cited as the grounds for the destruction. In this regard, Queensland's Criminal Justice Commission found that the Queensland Cabinet had acted to destroy the documents for the express purpose of preventing litigation. But behind this lurked another much more sinister issue, the alleged abuse of inmates in State institutions which has just been investigated by the Forde Inquiry – and the alleged illegal destruction of records as part of a systematic cover-up of that abuse.

Secondly there is the question of the legality of the destruction of records to which access is being sought by an intending litigant (in this case the Manager of the John Oxley Youth Centre, Peter Coyne), even if the destruction is authorised by the State Archivist. This is a legal rather than an archival professional issue and it revolves around the question of whether the letter of the law only protects records once proceedings are formally commenced or whether it extends to cases in which there has been a request for access in the context of an intent to take legal action. There is varying case law on this question.

Thirdly there is the critical issue of the role that failures in recordkeeping accountability might have played in the alleged mismanagement of State institutions and the abuse of inmates.

Fourthly, as previously mentioned, there is the question of the role of the government archival authority in disposal authorisation – should it be played out in relation to both democratic accountability and historical accountability, as advocated by the WA Inc Royal Commissioners, John Carlin, the Australian Law Reform Commissioners, the Electoral and Administrative Review Commissioners and others?

And finally there is a very large question mark over what constitutes archival appraisal and disposal best practice. The debate here centres on whether ad hoc micro appraisal is a fundamentally flawed archival disposal practice as opposed to a rule-based and class-based functional appraisal. A clear lesson of the Heiner Affair is that a disposal authorisation regime should include the following provisions:

• A request for disposal authorisation should include certification by the agency that the information supplied is true and accurate
• A request for disposal authorisation should include certification by the agency that access to records has not been sought in relation to pending or intended court proceedings or under statutory access rights
• A disposal authorisation should include a caveat on destructions that voids the permission in circumstances in which access has been sought in relation to pending or intended court proceedings or under statutory access rights. 9

In relation to accountability in public recordkeeping, professional associations may play a role at two levels – the macro level and the micro level. At the macro level the role relates to promoting and helping to establish accountable recordkeeping regimes. In recent years, the ASA has been active in this area, especially in its contributions to standard setting, e.g. the AS 4390 Records Management Standard, and its development as an ISO, and the National Records and Archives Competency Standards, and its advocacy of the independent role of the archival authority and its role in a democratic society in various forums, e.g. in the review of archival law that has taken place in a number of Australian jurisdictions.

Professional associations may also play a role at the micro level when accountability crises occur. This can range from articulating the relationship between failures in recordkeeping and accountability crises, to challenging statements that misrepresent or distort the archival mission, to more direct action in relation to threats to accountable public recordkeeping and the role of an independent archival authority.

So, in relation to the two cases we have cited what did the Archives and Records Association of New Zealand (ARANZ) and the ASA do?

In the New Zealand case, ARANZ and the New Zealand Genealogical Society took the New Zealand Department of Internal Affairs to court, alleging that by administrative action, the department had placed at risk the capacity of the NZ archival authority to fulfil its statutory role, particularly in relation to standard setting and the regulation of public recordkeeping. The Court found that there may be a case to answer but that it was too early to tell whether the heritage proposal would violate the National Archives' independence. This decision is currently under appeal. Another aspect of the case relates to the alleged misappropriation of the National Archives' budget without parliamentary approval to its parent department. On this matter the Court found that the funds transfer was illegal – this judgement too is under appeal.

And in the Heiner Affair, the ASA eventually issued a position statement in March this year which takes up a range of issues relating to accountable public recordkeeping, the role of the archival authority in disposal authorisation, appraisal best practice, and the relationship between recordkeeping failures and systemic failures in the State's institutions that enabled the abuse of inmates to occur. 10

There has been some criticism of the initial ASA response (or lack of response) to the destruction of the records of the Heiner inquiry, and of the ASA's earlier public statement of June 1997 which called for stronger archival legislation in Queensland and the guaranteed independence of the State Archivist, but did not address the full range of critical recordkeeping issues later taken up in the position statement. 11 Critics of the ASA's role have also pointed to lost opportunities for advocacy, including the Senate Select Committee on Unresolved Whistleblowing Cases in 1995 and the Queensland Government Inquiry by Morris and Howard in 1996.

The hindsight defence of the ASA on the charge of "too little, too late" has a number of aspects:

• It took many years for the complex and complicated story as we know it today to be uncovered – through a number of inquiries, the determination of one of the key stakeholders Kevin Lindeberg, and the media campaign led by Bruce Grundy of the Weekend Independent.
• In circumstances like those surrounding the Heiner Affair, it is very difficult to diagnose the recordkeeping issues as the accountability crisis unfolds.
• At the same time as the Heiner Affair itself was unravelling, the Australian recordkeeping community was moving to put in place more of the features of accountable recordkeeping regimes than had been in place in 1990 – the Australian Records Management Standard, much of the archival law reform that has resulted in the recent new laws and bills, the development by a number of archival authorities, including the State Records Authority of NSW, the National Archives of Australia and the Public Record Office of Victoria, of recordkeeping standards and best practice that form the basis of accountable recordkeeping regimes in their jurisdictions, and the articulation of the recordkeeping-accountability nexus that we have drawn on today. Most of these developments post-date the Heiner destructions and the initial revelations about them – as indeed do the broader accountability reforms in the Queensland public administration outlined by our speakers in the Post-Fitzgerald Queensland session this morning. 12

Finally, on the Heiner Affair, we note that the issue of the allegations of a systematic cover-up of inmate abuse and other malpractice, and the role that unauthorised destruction of records played in this is still unresolved – it was not addressed as part of the Forde Inquiry, and it remains largely unaddressed by the archival profession in Australia.

Having set the scene, we'd now like to open up discussion on the issues of:

• What is a professional association accountable to society for?
• What role should a professional association play in a recordkeeping accountability crisis?
• How can a professional association best position itself to play this role?
• What lessons can we learn in this regard from the NZ court case and the role of the ASA in the Heiner Affair?

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Last updated 5 January 2000.