The retention and availability of historical state records is a very live issue, most recently highlighted again by the news of the horrendous actions of those in charge of the ‘Mother and Baby’ homes throughout the country.

The work of Commissions of Inquiry and Investigation into matters such as the Tuam Mother and Baby home is often hampered and frustrated by the fact that (1) either there are no records where one would assume there should be; or (2) even where there were records, they have been destroyed.

The Legal Backdrop

Both the National Archives Act 1986 and the Freedom of Information Act 2014 (the “FOI Act”) are relevant to the issue of record keeping, with the Data Protection Acts 1998 and 2003 (the “DPA’s”) over-lapping to some extent with the FOI Act.

The National Archives Act requires Departmental Records (as defined therein) to be transferred to the National Archives of Ireland for preservation once they are 30 years old. These records can also be viewed by the public once they have been transferred (or upon expiry of 30 years where they are transferred earlier). The National Archives Act provides that all departmental records must be preserved, unless their destruction is authorised in writing by the Director of the National Archives. Particular records may be retained by departments only if they are covered by certificates stating either:

(1) That they are in regular use in a department or are required in connection with its administration, or

(2) That they should not be made available for public inspection on one of the grounds specified in the Act (including inter alia where it would be contrary to the public interest; where it would constitute a breach of statutory duty or would cause distress or danger to a living person).

Records collected by a commission of inquiry or investigation fall under the ambit of the National Archives Act. Upon the completion of the inquiry or investigation, the head of the commission will make directions in relation to the records collected during the course of the inquiry or investigation. Generally, any records deemed relevant to the inquiry will be sent to the National Archives, where they will be stored without public access for 30 years, following which they can be viewed.

The commission may also provide that personal and/or confidential records be returned to their owners or destroyed prior to the inquiry being wound up.

The FOI Act requires public bodies to publish information on their activities and to make the information they hold, including personal information, available to the general public. The Minister for Public Expenditure and Reform has power to issue regulations in relation to the management of official records, which he has not done to date. Governments and public bodies routinely collect and hold vast amounts of information, including personal data, survey responses, administrative information etc. and increasingly, they are sharing the underlying or raw data that they gather to make their reports and strategies.

It has been largely recognised that the use of Big Data will lead to more efficient government departments, however, privacy and policy concerns remain a barrier to utilising Big Data.

The DPA’s regulate the storage and processing of personal data in order to balance the right of organisations to gather data with the right of the individuals to control the content and use of their personal data. Personal data that is collected by public bodies should only be released as open data after it has been anonymised so that individuals’ privacy rights are respected. Pursuant to the DPA’s there is not only an obligation on data controllers to inter alia keep data safe and secure, but there is also an obligation on data controllers not to retain data for any longer than is necessary. Given that the National Archives Act requires the preservation of records and the DPA’s require the purging of it, it is clear that all staff of public bodies should receive regular training in relation to the obligations they have under the various pieces of legislation.

Gap in the legislation

The FOI and National Archives Acts only come into play where a record actually exists in the first place. Perhaps unbelievably, neither Act specifically requires government departments or public bodies to make records in the first instance. The creation and manner of retention of records is a matter for each individual government department and public body. So, while Commissions of Inquiry and Investigation possess powers to compel the production of evidence, these powers are of little use where the evidence never existed. A report by the Office of the Information Commissioner in relation to the compliance by public bodies with the FOI Act1 highlighted the impact this gap in the legislation has. A concern expressed was that some public servants have adopted the approach of recording less information rather than recording everything and running the risk of disclosure under the FOI Act. Of note is that this was highlighted by the Information Commissioner in 2001 and still nothing has been done to close the gap in the legislation.

A specific area of Public Law that has seen the requirement to keep records placed on a statutory footing is the area of procurement. The European Union (Award of Public Authority Contracts) Regulations 2016 (the “2016 Regulations”)2 require the production of a detailed procurement report, called a Regulation 84 Report, outlining the various stages of the tender process and the manner in which the tender was awarded. The contents of the report are specifically provided for in the 2016 Regulations. Thus there is recognition at a European level of the need to formalise the recording of certain decisions of public bodies in order to provide transparency to affected parties.

In relation to the destruction of records, the FOI Act makes it an offence to destroy or materially alter a record without lawful excuse and with the intention to deceive once an FOI request has been made for the record.

Whilst the National Archives Act specifically provides that departmental records shall be sent to the National Archives (save those that are certified), it does not provide a sanction for the destruction of records. Until such time as government or public body officials can be held personally liable for the destruction of records, it is quite possible that there will be further incidences of records being destroyed.

What is required to close the gap?

  1. Given that the legislation as it currently stands does not provide for a general requirement for government departments or public bodies to document alldecisions and meetings etc., it would seem logical that the first step would be to provide a statutory basis for the “duty to document”.
  2. A central government record management model to be rolled out to all government departments and statutory bodies with the aim of having a cohesive system of record management across the public sector.
  3. Training and guidance to public officials in relation to their obligations to document decisions and actions.
  4. Training and guidance to public officials in relation to their obligations pursuant to the various pieces of legislation, particularly in relation to personal data.

It is time to move away from the mistakes of the past and focus on providing more efficient and accountable government departments and public bodies going forward.