SECTOR RECORDS
A Training Programme
A Model Records andArchives Law
INTERNATIONAL
COUNCIL ON ARCHIVES / INTERNATIONAL RECORDS
MANAGEMENT TRUST
Managing Public Sector Records: A Study Programme
A Model Records and Archives Law
Managing Public Sector Records
A Study Programme
General Editor, Michael Roper; Managing Editor, Laura Millar
A Model Records and Archives Law
International RecordsInternational
Management TrustCouncil on Archives
Managing Public Sector Records: A Study Programme
A Model Records and Archives Law
© International Records Management Trust, 1999. Reproduction in whole or in part, without the express written permission of the International Records Management Trust, is strictly prohibited.
Produced by the International Records Management Trust
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London WC1N 2EB
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Printed in the United Kingdom.
Inquiries concerning reproduction or rights and requests for additional training materials should be addressed to
International Records Management Trust
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Version 1/1999
MPSR Project Personnel
Project Director
Anne Thurston has been working to define international solutions for the management of public sector records for nearly three decades. Between 1970 and 1980 she lived in Kenya, initially conducting research and then as an employee of the Kenya National Archives. She joined the staff of the School of Library, Archive and Information Studies at University College London in 1980, where she developed the MA course in Records and Archives Management (International) and a postgraduate research programme. Between 1984 and 1988 she undertook an onsite survey of record-keeping systems in the Commonwealth. This study led to the foundation of the International Records Management Trust to support the development of records management through technical and capacity-building projects and through research and education projects.
General Editor
Michael Roper has had a wide range of experience in the management of records and archives. He served for thirty-three years in the Public Record Office of the United Kingdom, from which he retired as Keeper of Public Records in 1992. He has also taught on the archives courses at University College London and the University of British Columbia, Canada. From 1988 to 1992 he was Secretary General of the International Council on Archives and since 1996 he has been Honorary Secretary of the Association of Commonwealth Archivists and Records Managers (ACARM). He has undertaken consultancy missions and participated in the delivery of training programmes in many countries and has written extensively on all aspects of records and archives management.
Managing Editor
Laura Millar has worked extensively not only as a records and archives management consultant but also in publishing and distance education, as an editor, production manager and instructional designer. She received her MAS degree in archival studies from the University of British Columbia, Canada, in 1984 and her PhD in archival studies from the University of London in 1996. She has developed and taught archival education courses both in Canada and internationally, including at the University of British Columbia, SimonFraserUniversity and the University of Alberta. She is the author of a number of books and articles on various aspects of archival management, including A Manual for Small Archives (1988), Archival Gold: Managing and Preserving Publishers’ Records (1989)and A Handbook for Records Management and College Archives in British Columbia (1989).
Project Steering Group
Additional members of the Project Steering Group include
Association of Records Managers and
Administrators (ARMA International):Hella Jean Bartolo
International Council on Archives:George MacKenzie
Project Management Consultant:Tony Williams
UniversityCollegeLondon:Elizabeth Shepherd
Video Production Co-ordinator:Janet Rogers
Educational Advisers
MoiUniversity:Justus Wamukoya
Universiti Teknologi Mara:Rusnah Johare
University of Botswana:Nathan Mnjama
University of Ghana:Harry Akussah, Pino Akotia
University of New South Wales:Ann Pederson
University of West Indies:Victoria Lemieux
Project Managers
Lynn Coleman (1994-6)
Laura Millar (1996-7)
Elizabeth Box (1997-8)
Dawn Routledge (1999)
Production Team
Additional members of the production team include
Jane Cowan
Nicki Hall
Greg Holoboff
Barbara Lange
Jennifer Leijten
Leanne Nash
Donors
The International Records Management Trust would like to acknowledge the support and assistance of the following:
Association of Records Managers and Administrators (ARMA International)
British Council
British High Commission Ghana
British High Commission Kenya
Caribbean Centre for Development Administration (CARICAD)
Canadian International Development Agency (CIDA)
Commonwealth Secretariat
Department for International Development (East Africa)
Department for International Development (UK)
DHL International (UK) Limited
Foreign and Commonwealth Office Human Rights Fund
Hays Information Management
International Council on Archives
Nuffield Foundation
Organisation of American States
Royal Bank of Scotland
United Nations Development Program
A Model Records and Archives Law
Prepared by Michael Roper
Contents
Introduction 1
Section 1Introduction to Records and Archives Legislation 2
Section 2A Model Records and Archives Law 6
Introduction
Introduction to A Model Records and Archives Law
This manual is intended to be used in conjunction with Regulating Records and Archives Systems, which is one of a series of three training modules which provide an introduction for managers in the records and archives field to the executive issues affecting records and archives systems and services. However, the manual may also be used on its own by any country which is contemplating new records and archives legislation.
The manual consists of:
- a general introduction to records and archives legislation
- a model law
- a commentary on the model law.
A Model Records and Archives Law
1
Section 1
Introduction to Records and Archives Legislation
Information, Records and Archives
Information is a vital resource for any modern society. Without information, neither the government nor its citizens can function effectively; hence the process of planning, controlling and using information (known as ‘information management’) is an important activity, critical to the success or failure or the organisation. It is often assumed that information management concerns only information and data created by or stored in computers. That is not true; the most effective information management systems manage all the information available to an organisation, regardless of its source or whether or not it has been processed electronically. Records and archives are major sources of information, and it is important that they should be properly managed.
The term ‘records’ includes all the documents, irrespective of medium or format, that governments, other organisations or individuals create or receive in the course of administrative and executive transactions. The records themselves form a part of or provide evidence of such transactions. As evidence, they are subsequently maintained by or on behalf of those responsible for the transactions for their own future use or for the use of their successors or others with an interest in the records. They provide the corporate memory of the state, an audit trail in respect of its financial transactions and evidence of its policies and activities for those to whom it is politically accountable.
The effective management of records throughout their life cycle is a key issue in civil service reform. 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 it have the means of holding itself accountable for what it has done or of upholding the rights of its citizens.
Many records need to be kept for only a short time, to provide evidence or information for their creators. Other records have a longer-term value to society as a whole, as evidence of or information about the actions or functions of government over time. Those records worth preserving for their enduring value are called ‘archives’. When records become archives they do not necessarily cease to have value for short-term political and financial accountability; they continue to preserve an audit trail of past actions and to document the collective and individual rights of the citizens.
However, the primary reason for the preservation of records is to serve as evidence for long-term social accountability, that is for their enduring historical and cultural value. Accordingly, records are recognised as a basic component of each nation’s heritage, part of its collective memory, a testament to its history and an embodiment of its national identity. A programme for the proper management of archives – maintaining their integrity, guaranteeing their safety and thereby providing state, society and citizens with an historical perspective – is the duty of a civilised state.
The National Archives is the permanent home for government records with enduring value, but those records will not reach the National Archives if they are not well managed throughout their life. When they are well managed, the authenticity and security of the records and of the information which they contain is respected, records of no continuing utility are destroyed in a timely but controlled fashion and valuable records are secured and preserved for posterity.
Records and Archives Legislation
The enactment and implementation of comprehensive, up-to-date records and archives legislation is a critical prerequisite for the establishment of an effective, integrated system for managing records and archives throughout their life cycle.
The precise form that legislation takes in a country will be constrained by that country’s formal constitution and constitutional conventions (such as the separation of powers between legislature, executive and judicature; the rules or conventions governing collective cabinet and individual ministerial responsibilities and the relationship between ministers and senior civil servants; the balance between centralisation and decentralisation and between the public and the private sectors). The legislation will also be guided by the general political, economic, social, cultural and administrative environment; by existing records and archives legislation; and by the general level of records and archival development. Such constraints will determine the balance within national records and archives legislation between the primary act, subordinate legislation and professional standards, guidelines and procedure manuals.
A records and archives act that provides a detailed prescription for the management of records throughout their life cycle will give a clear mandate for implementation. On the other hand, it is difficult to make changes of practice to take account of changing external circumstances, because such changes require time-consuming amendment of the primary act. A records and archives act that establishes only a general framework, leaving the detail to be added in the form of subordinate legislation and professional standards, guidelines and procedure manuals, makes for ease of change but may appear to lack the authority of the more prescriptive approach, especially where life-cycle records and archival management systems are not well developed, and may result in patchy and inconsistent provisions if there is insufficient continuing commitment to drive through the necessary initial subordinate legislation, etc., and to maintain it thereafter.
Records and archives legislation already exists in many countries in the form of a National Archives Act, sometimes with later amendments. There may also be in force rules or regulations under that legislation or even under ordinances from the colonial era. In Commonwealth countries, the National Archives Act was often enacted shortly after independence and modelled closely on the UK Public Record Act of 1958. It may provide a framework for the preservation and provision of access to those records of the colonial administration and the successor state that have been selected as archives. However, it is now likely to be considerably out of date, especially if it lacks provision for the life-cycle management of records from their creation to their eventual disposal by destruction or by transfer to the National Archives. Hence, although the relevant provisions of this model law might be used to amend existing legislation, the assumption is that an entirely new act will be preferred as signalling a fresh start in the life-cycle management of records and archives.
In particular, there is likely to be a lack of legislation governing the management of records during the initial stages of their life cycle, that is while they remain as current and semi-current records in the offices of the ministries and other government bodies that created them. The corresponding lack of authoritative and effective procedures for controlling records has led to congestion in the registries. As a consequence, papers of even recent date are difficult to identify and retrieve. Further, valuable office space is wasted in storing records of no further value that cannot be segregated from records with ongoing utility or enduring value.
Because of the urgent need to address for the first time the wider concept of life-cycle management of records and archives, the model law shown here proposes the repeal all the existing records and archives legislation and its replacement with an entirely new, comprehensive National Records and Archives Act. Nevertheless, where they are still relevant, effective provisions of existing archival legislation may be retained, though it may be necessary to update their formulation.
Because it is introducing new concepts, the balance of the model law tends towards detailed prescription, although much detail remains to be added by way of regulations and professional standards, guidelines and procedure manuals. It is important that work in preparing these associated materials should be undertaken as the new National Records and Archives Act progresses through the legislative process so that they can be issued without delay when the legislation comes into force.
A Model Records and Archives Law
1
Section 2
A Model Records and Archives Law
Following is a model law and commentary. For ease of reference the model law is printed on the left-hand page with the relevant section of the commentary on the right-hand page. Sections where information needs to be added are marked with five asterisks: *****.
A Model Records and Archives Law
1
COMMENTARY
The National Records and Archives Act, ***** [date]
An Act to establish the National Records and Archives Institution and to provide for the better management of public records and archives throughout their life cycle, for the repeal of the National Archives Act, ***** [date], and for incidental or connected matters.
Whereas it is necessary to improve the arrangements for the life-cycle management of the public records and archives of ***** [name of country] as an essential component of effective administration and accountable government; to ensure that public offices create adequate records of their actions and transactions, that those records are properly maintained for so long as there is a continuing need for them and that the disposal of those for which there is no further need is effected in an controlled and timely manner; and to identify and safeguard those records which are of enduring value and which should be preserved as archives and made available for public consultation; it is hereby enacted:
Part I
Preliminary Provisions
Short title and commencement
1.This Act may be cited as the National Records and Archives Act, *****, and shall come into operation on such date as the Minister may, by notice published in the Gazette, appoint.
Titles: To stress the continuity of care throughout their life cycle the words ‘records and archives’ are used together in the title of the Act and in those of the bodies that it sets up to manage them.
Interpretation
2.In this Act, unless the context otherwise requires:
‘Advisory Board’ means the National Records and Archives Advisory Board
‘archival repository’ means a building or part of a building in which archives are preserved and made available for consultation
‘archives’ means records of enduring value selected for permanent preservation
‘current records’ means records regularly used for the conduct of the current business of an institution or individual
‘Director’ means the Director of the National Records and Archives Institution
‘heads of public offices’ means the ministers or other persons responsible for directing public offices
‘Institution’ means the National Records and Archives Institution
‘Minister’ means the Minister responsible for the civil service
‘National Archives’ means the archival repository in which archives of the central institutions of ***** are preserved and made available for consultation
‘private records’ means records other than public records as specified in the Schedule to this Act
‘public office’ means any institution, body or individual which creates, receives or maintains public records
Definitions: The Act defines technical terms (such as retention and disposal schedule and records centre) in accordance with standard international terminology.
Archives are distinguished from the building in which they are preserved and made available for consultation (archival repository). National Archives is used only in reference to previous legislation or as the title of the archival repository in which archives of the central institutions of the state are preserved and made available for consultation.
Minister: In many countries the National Archives is regarded primarily as a cultural institution and has been responsible to the Minister of Culture (or an equivalent). However, the centrality and significance of records work to sound administration and accountability throughout government and the security implications of that work in many sectors should be recognised and changes made to ensure that responsibility for government records and archives throughout their life cycle rests with a single, central authority. The president or the prime minister would be the ideal ‘Minister’, but this may be an unachievable goal in some countries and another senior minister with a strong cross-governmental role may have to be accepted (eg the minister with responsibility for national development, for the civil service, for justice or for home affairs). Here, ‘the Minister’ is defined as ‘the Minister responsible for the civil service’.