Up-to-date records legislation is a critical prerequisite for building an effective, integrated system for managing records from their creation to their destruction or their preservation as historical archives. Countries that are committed to openness need to ensure that the law governing records management is strong enough to enable a high quality evidence base capable of supporting accountability in the paper and digital environments. In addition, the law should be harmonised with the range of other laws that support accountability and transparency, including laws that governing digital governance, access to information, open data, data protection and public administration.
The law should define the goals and legal responsibilities for creating and managing high quality public sector records. It should define the role and functions of an agency with overall statutory responsibility for managing records across the public sector and the responsibilities of public servants to keep and protect records documenting policies, actions and transactions carried out on behalf of the public.
In many countries, records and archives legislation already exists in the form of a National Archives Act, and the national archives has statutory responsibility for the records function. However, in some cases, the Act focuses on historical records and has not been amended to take account of the need to manage records from the point of creation, the rapidly changing public sector environment or the challenges of managing records in new formats. It is increasingly important to position the records management function to support crosscutting goals for governance and openness. Where this does not happen, the national archives can be sidelined, particularly in the digital environment, and aspects of the records function may be assigned to different agencies, making it difficult to achieve a coordinated, consistent approach to implementing standards and clear guidance or to harmonise diverse information requirements through time, across media and format, and between systems.
The precise form of the legislation will be determined by a country’s formal constitution and legislation and the general political, economic, social, cultural and administrative environment, as well as by the existing records and archives legislation and the general strength of the control regime and professional development. These factors also will determine the balance between the primary act, subordinate legislation, and professional standards, guidelines and procedure manuals. The records authority can be given different levels of autonomy. It can be set up as a section within a department as a separate department in its own right reporting direct to a minister, as a statutory authority, an executive agency, or even as a government corporation.
Whatever its precise form, it is recommended that, the law should:
- Define technical terms.
- Define the relationship of records to accountability and transparency.
- Formally recognise or establish a lead institution and its director’s function.
- Establish a relationship between record creating agencies and the lead agency.
- Define the responsibility of heads of public offices for creating and managing current records, drafting and implementing retention and disposal schedules, and transferring inactive records with ongoing value to secure storage and preservation facilities.
- Set up good practice guidance in line with international good practice standards to ensure that public offices follow good records management practices.
- Define the point of closure for public sector records and ensure that legal restrictions are observed.
- Safeguard, manage and provide access to closed records with ongoing value.
- Define and implement compliance standards.
- Maintain oversight of the quality of training for public sector records staff.