Government and Information

1. 1 Introduction Freedom of information (FOI) has acquired increasing societal importance in recent years: records management is a longer established discipline but its public profile is low. This study seeks to situate FOI in Botswana. In order to do this effectively, the study also seeks to uncover the relationships that exist between records management and FOI legislation. In examining FOI and in revealing these relationships, the study draws on comparative experiences gained from Botswana, Malawi, South Africa, the Republic of Ireland and the United Kingdom (UK).

At the centre of the comparisons is Botswana, a country which as at 2006 has not adopted FOI legislation and indications are that this is far from imminent. 1 The comparisons will help the author to appraise Botswana’s current approach to the provision of access to information and thereby determine whether the country needs FOI legislation or whether it can make do with the procedures it has. The comparisons will also enable a better understanding of whether the country’s current approach to the management of public sector records is sufficient in aiding access to information or is in need of reform.

FOI literature generally assumes that records management exists and works to facilitate access to information. The literature rarely touches on the efficacy of FOI legislation where records management is weak and failing to maintain accountability in a polity. However, some of the literature assumes that FOI legislation has the necessary re-engineering capacities to make records management work. Undoubtedly, a belief arises from this literature, and from the shared experience of professionals in the field, that records management is essential for effective FOI legislation.

Another viewpoint suggests that FOI legislation can lead to improvements in records management. Underlying both is the notion that records management and FOI legislation may share some relationships which make one important to the other. FOI legislation is important to both citizens and government irrespective of the state of 1 Botswana Government The Presidential Task Group Long term vision for Botswana: towards prosperity for all: Vision 2016 (Gaborone: Government Printer, 1997): 34 and 69. 1 records management, and records management is also important whether or not FOI legislation has been promulgated.

However, any effective FOI scheme will benefit tremendously from good records management, and FOI is likely to show up weaknesses in the management of records. 1. 2 Records management and freedom of information: a preface 1. 2. 1 Importance of records All organisations, public or private, rely on records in their daily operations. Records are the corporate memory of organisations in that they support daily business undertakings, facilitate decision making and policy formulation, and are in themselves a part of an organisation’s endeavour to carry out its business.

2 Records provide information and evidence of the functions carried out and are thus critical to protecting organisations and their interests during litigation and other legal challenges; enabling them to conform with accountability requirements, and comply with the prescriptions of all government statutes including access to information. 3 Roberts of the State Records Authority in New South Wales in Australia identified three domains in which records are essential. 4 These domains are: The business domain: organisations create and maintain records to support their daily business needs and expectations.

Planning the direction which a certain business process has to follow relies on records, and executing these plans results in the creation of more records and further reliance on those already in existence; recruiting and retaining employees to facilitate expected business processes requires the creation and maintenance of records. In fact, almost everything that an organisation does relies on the availability and utility of records. 2 • E Shepherd and G Yeo Managing records – a handbook of principles and practice (London: Facet Publishing, 2003): xi. 3 J Kennedy and C Schauder Records management: a guide to corporate record keeping 2nd edn.

(South Melbourne: Longman, 1998): 46. 4 D Roberts Documenting the future: policy and strategies for electronic recordkeeping in the New South Wales public sector (Sydney, N. S. W: Archives Authority of New South Wales, 1995). Available at . Accessed 18/08/06. 2 • The accountability domain: accountability within and outside organisations relies on the exchange of information from someone who has to account to the one holding the account. Records capture information, some of which is indispensable to accountability. Accountability therefore, depends on there being information and evidence relating to the account that is being made.

In this respect, organisations keep records so that they may produce informed accounts of their business processes. In the event that an account is queried, records can be accessed to clarify whatever is being questioned. The cultural domain: although records are created to support and document business processes, some have values other than those for which they were created. These records, particularly those archival in nature, have historical and cultural nuances which make them valuable to the society to which they relate. Records management, therefore, is indispensable to the daily administration of • organisations.

To undertake any of their mandates, organisations generate records and utilise those already in existence. Managing these records is vital to ensure their availability when needed to inform or act as evidence of business processes. Since records document what organisations do, they are an essential part of the entire accountability process. In carrying out their mandates, organisations develop relationships with society, and records which capture these relationships may warrant permanent retention as part of the documented history of society. 1. 2. 2 Defining records.

Textbook definitions of records are not in complete agreement on the nature of records. Traditional definitions of records suggest they are tied to some physical format or storage medium. For instance, Schellenberg defined records as: All books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by any public or private institution in pursuance of its legal obligations or in connection with the transaction of its proper business and preserved or appropriate for preservation by that institution or its legitimate successor as evidence of its functions,

3 policies, decisions, procedures, operations, or other activities or because of the informational value of data contained therein. 5 This definition ascribed records to their physical form. That is, records have to have some storage medium, as in ‘books, paper, maps, [and] photographs. ’ This definition is traditional in that it appeals our senses to things we are accustomed to i. e. letters, reports, invoices, and so on, all in paper format, things that we are used to handling almost daily.

Definitions from some more recent American records management textbooks6 defined records much along the lines of the Association of Records Managers and Administrators (ARMA) who viewed them as “recorded information, regardless of medium or characteristics, made or received by an organization that is useful in the operation of the organization. ”7 What is important to these American definitions is that records are recorded information irrespective of the format. Shepherd and Yeo observed that a record is not simply recorded information but it more importantly possesses characteristics that provide evidence of some activity.

8 A recent definition in ISO 15489, the international standard for records management, viewed records as “information created, and maintained as evidence and information by an organisation or person, in pursuance of legal obligations or in the transaction of business. ”9 This definition emphasised that records are primarily information (which is created and maintained by an organisation); the information is (maintained as) evidence (of business transactions). The form or medium in which the record is does not matter.

What is essential is its content and purpose, (the information supporting a business process and the evidence of the transactions that generated the information). 10 5 6 T R Schellenberg Modern archives, principles and techniques (Melbourne: F. W. Cheshire, 1956): 16. N F Kallaus and M M Johnson Records management 5th edn. (Cincinnati, OH: South-West Publishing Company, 1992): 3. 7 Association of Records Managers and Administrators Glossary of records management terms (Prairie Village, KS: ARMA International, 1989): 16.

8 E Shepherd and G Yeo Managing records: 2; see also chapter 1 of R J Cox Managing records as evidence and information (London: Quorum, 2001); T Livelton Archival theory, records and the public (London: Scarecrow Press, 1996): 59 and a response to T Livelton’s work by T Nesmith ‘Still fuzzy, but more accurate: some thoughts on the ‘ghosts’ of archival theory’ Archivaria 47 (1999): 136-150. 9 International Standards Organisation ISO 15489-1:2001 Information and documentation-records management. Part 1, General (London: British Standards Institution, 2001):3.

10 D Roberts Documenting the future. 4 Records have been found to possess certain attributes that distinguish them from other types of information. These can be summarised as content, context and structure:11 Content: This refers to the subject matter or that which makes up the substance of a record. Content captures all the information reflective of the business process that led to its creation; it accurately records what was done or is being done, and the information it captures is a comprehensive account of the processes followed (i. e. evidence).

Content can be made up of data, text, numbers etc that make up the subject matter resulting from a business transaction. One important aspect is a record’s ability to fix the content, ensuring that it is consistent as long as the record is needed. • Context: A record’s context depicts the circumstances surrounding its creation and use. Context establishes the reasons culminating in the creation of the records, the business processes the records are derived from and seeks to explain who the participants in their creation are, including all salient issues that ultimately give records meaning.

Context also establishes the interrelationships among records. At times, the meaning expected of a record can only be derived and understood after these relationships have been understood. • Structure: The structure of records can mean their internal layout. Structure of records extends beyond just the relationships within a record to its relationship with other records in a folder or file, to records in the same series or resulting from the same business activity. Structure is an important aspect which enables the understanding of the content of a record.

A record’s structure reflects the arrangement of the content and is an elucidation of its context and enables the meaning of a record to be known and understood. These essential attributes intrinsically inspire trust in records which are then deemed as authentic, reliable, integral and usable. • 11 E Shepherd and G Yeo Managing records: 10-11. 5 1. 2. 3 Defining archives The term ‘archives’ has been used in literature at times as a synonym with ‘records. ’ The reason for the usage seems to emanate from the derivation of archives from the records organisations have created and held.

Williams declared that archivists and records managers take records to “comprise information generated by organisations and individuals in their daily business and personal transactions. ” 12 However, as argued in section 1. 2. 2, records do much more than just capture information. They are, on top of capturing and providing information, evidence of the transactions which have generated them. The term ‘archives’ has been associated with old documentation. Some individuals and organisations usually refer to their storage areas where they keep old documentation as their ‘archives’ and the documents in them will also be known as ‘archives.

’ Shepherd and Yeo qualified that ‘archives:’ may include records that have continuing significance in the conduct of business, for example as evidence of the organization’s constitution or its ongoing rights and obligations. They may also include records that are no longer expected to be required for the operational use or to support accountability, but are kept indefinitely as part of the corporate memory of the organization or for research or other cultural purposes.

13 Hence, archives are records or as Williams suggested, are a division of records. 14 Archives just like records, possess a content, have a context and a structure. Just like records, archives are expected to be authentic, reliable, integral and usable. In light of this, archives are records which in the process of their accumulation and use, have accrued added importance not just to the activities to which they are related to or have supported, but are found to explain the history of an organisation or a people.

As a result of this added value, archives are selected from other bodies of records and preserved indefinitely. Due to the similarities which records and archives share, the term ‘records’ will be used in this thesis to stand also for ‘archives. ’ 12 C Williams Managing archives: foundations, principles and practice (Oxford: Chandos Publishing, 2006): 4. 13 E Shepherd and G Yeo Managing records: 5. 14 C Williams Managing archives: 4. 6 1. 2. 4 Defining records management Organisational records are managed through a process known as records management.

Records management is defined in ISO 15489 as “a field of management responsible for the efficient and systematic control of the creation, receipt, maintenance, use and disposition of records…”15 ISO 15489 noted that management of records includes but is not limited to:16 • setting policies guiding records creation and their management as well as standards mapping processes that are to be applied in records creation, maintenance, use and disposition; • • • • assigning records management responsibilities

among staff of an organisation; putting into place records management procedures that would ensure uniformity of processes; choosing and oversight of records management systems; ensuring that records management is integrated into each business process of organisations.

To assist in the effective creation and general management of records, organisations should institute a records management programme composed of among others:17 • a system that evaluates the business processes an organisation carries out and determines the information resulting from each process and ascertaining which of it has to be captured as records; • • making decisions on the form of records to be created and the appropriate technologies needed to support and enhance their creation; evaluating metadata needed as part of the record and establishing how the metadata will continue to be linked to the record as long as it is needed for the business process that led to its creation; 15 16 International Standards Organisation ISO 15489-1: 2001: 3. International Standards Organisation ISO 15489-1: 2001: 4. 17 International Standards Organisation ISO 15489-1: 2001: 6. 7 •

designing retrieval mechanisms for records and ensuring that the records can be shared by business processes without getting lost, being altered or damaged; assessing risks associated with failure to create and maintain appropriate records or failure to retrieve them when they are needed; deciding how records will be preserved over time to enable their availability any time they are needed for conduct of business; ensuring records are retained for appropriate periods that tally with business processes; seeing to the safe and secure maintenance of records; establishing methodologies for evaluating and monitoring the effectiveness of systems instituted for managing records. • • • • • 1. 2. 5 Defining information Information which records capture is an organisational asset and a resource which helps organisations to meet their goals and objectives, and it is also evidence of how their functions are being executed. On its own information cannot provide evidence of a business transaction. It can only do so once it is recorded and contains all the record attributes and qualities discussed earlier.

Information thus is a broad concept and includes records as one of its subtypes. Keenan and Johnston defined ‘information’ as: Something learned, facts that are gathered or a measure of the content of a message… It can be a sensible statement, opinion, fact, concept or idea or an association of statements, opinions, or ideas. It is closely associated with knowledge in that once information has been assimilated, correlated and understood it becomes knowledge. 18 Information is also understood to be data or knowledge. The data becomes knowledge only once some meaning has been attached to it. 19 Information is further seen as a “category of concepts which our minds take in, consciously register, to which 18

S Keenan and C Johnston Concise dictionary of library and information science 2nd edn. (London: Bowker-Saur, 2000):133. 19 I A Penn, G B Pennix and J Coulson Records management handbook 2nd edn. (Brookfield, VT: Gower, 1994):3. 8 meaning can be attributed and which normally modify our state of knowledge. ”20 Information is also something that is communicated between persons and it has to be meaningful for people to make use of it. 21 These definitions do not tie information down to any physical medium. This means that information is not just a domain for physical objects like paper but can also be captured in virtual elements such as electronic records, which might lack a physical medium.

If information can be captured on many different media this brings it in line with the ISO 15489 definition of records, where information can form the content of a record but the record only becomes complete after it gains a context and a structure. Information can either be published or unpublished. Published information is normally in the form of books, journals, CD-ROMs and so on. In its nature published information does provide information but not evidence. In other words, published information lacks the evidentiary elements with which records are associated. This is because the information will be deficient in the specific attributes and qualities that give records their status. Unpublished (proprietary) information can be used to support a business activity but in itself is not a record of the business activity. Such information may be created to be incorporated into records.

Once it has been incorporated and forms part of a record, only then does it provide evidence of a transaction and information on how it was carried out. If the evidentiary element is missing, the information does not become a record but simply remains information. 22 Information is a resource which organisations create and rely on. It acquires additional values as an asset when it is captured in records to complement the evidence which they document. In this state, information is managed as part of a record (its content). Access to information in organisations can either be to records or to any other information source which may be published or unpublished.

Access is not restricted just to internal organisational uses, since citizens individually or as groups can gain access to it to inform themselves on the processes that have generated it, and to use it to hold organisations accountable. 20 M W Hill The impact of information on society: an examination of its nature, value and usage (East Grinstead: Bowker-Saur, 1998): 22. 21 W J Martin The global information society (Aldershot: Aslib Gower, 1995):22. 22 D Roberts Documenting the future. 9 1. 2. 6 Freedom of Information The need for the public to have a legal right of access to information which is held by government has been proclaimed under statutes of different names in different countries.

Some refer to it as Freedom of Information others as Access to Information and some as the Promotion of Access to Information. 23 Despite the differences in titling, the underlying conception and purpose remain the same. In each case, statutes enforce and regulate legal rights enabling members of the public to gain access to information held by government. For the purposes of this study the term freedom of information is used. FOI legislation is an initiative towards making government more open. It is not an end in itself but together with other open government initiatives it aims at making governments more accountable and transparent in their dealings with the public.

FOI laws can be traced back to Sweden and Finland where they have been in existence since the 18th century. The United States of America enacted its law in 1966 and Denmark and Norway enacted similar laws in 1970. Eight years later France and the Netherlands enacted FOI, while Canada, New Zealand and Australia adopted theirs in 1982. The 1990s witnessed a surge in the number of countries adopting FOI including the Republic of Ireland in 1997. The new millennium promises to usher many more FOI laws. Already countries like the UK and South Africa (2000) and many others have legislated FOI. 24 FOI legislation enforces and implements a legal right which enables members of the public to acquire and gain direct access to government information.

The premise for the legislation emanates from the democratic conviction which sees government as an agent of the people and conversely being responsible towards them. This conviction states that government gathers and uses information resulting from 23 T Riley ‘Freedom of information and the right to know: accessing government documents’ in D Routledge, K Barata and P Cain (eds. ) Information for accountability workshops, sourcebook (London: IRMT, 2000):29; T Riley ‘What is this thing called FOI? ’ in T Riley and H C Relyea (eds. ) Freedom of information trends in the information age (London: Frank Cass, 1983): 1. 24 See generally, T Mendel Freedom of information: a comparative legal survey (New Delhi: UNESCO, 2003).

Available at . Accessed 18/08/06 and D Banisar Freedom of information and access to government record laws around the world (Washington, DC: freedominfo. org, 2004). Available at . Accessed 18/08/06. 10 the agency relationship it has with the public. Therefore, access to information is not for the benefit of government alone but for the public also. This view sees government-held information as belonging to the public and government as the custodian of it. Essentially, government is the custodian of all public assets and resources inclusive but not limited to government buildings, furniture in government offices, and public servants themselves.

25 If the public have the right of access to government offices to obtain assistance from public servants why should they not have the right to access government information? This is one of the questions which FOI legislation seeks to address. FOI legislation is also a democratic attempt to ensure that the public remains sovereign through the opening up of government machinery and activities to public scrutiny by virtue of access to official information. The presumption here is that democratic government is in power because of the public who elected it and as a result the people are sovereign, since those in government are in those positions because they were selected to represent the many. 26 Government, therefore, is the agent and the people, the principal.

The public have selected the agent to govern on their behalf but authority rests with the principal to retain the representation or even to question its efficiency and efficacy. The legal right to access official information which FOI legislation enforces, is intended to enable members of the public to understand public policy debates better and to be more informed about their relevance and direction when participating in them, and to be in a position to consent to them or validate government’s activities. 27 Through becoming a right, access to information enables members of the public to act 25 J Stiglitz ‘Transparency in government’ in The right to tell-the role of the mass media in economic development (Washington, DC: The World Bank, 2002):28-29; 39-40.

26 D V Smiley The freedom of information issue: a political analysis (Toronto: Commission on Freedom of Information and Individual Privacy, 1978): 30; The Campaign for Freedom of Information Freedom of information checklist (London: The Campaign for Freedom of Information, n. d. ): 1. Available at . Accessed 21/08/06. 27 Personal interview with UK/9, 07/04/04. 11 as external experts who can evaluate the effect which government information meant for decision-making is likely to create. 28 Maurice Frankel, the Director of the Campaign for Freedom of Information, in the UK, argued that FOI is a “right which the individual exercises directly, without an intermediary.

People seeking information do not have to persuade an elected representative to ask questions for them, search for a lawyer willing to waive his fees or hope that their situation involves the peculiar characteristics that the press deem newsworthy. It is a free-standing right, which the ordinary citizen uses in his or her own name. ”29 FOI is a right which any member of the public can enjoy without necessarily relying on the intervention of other people or institutions for it to take effect. It is not a right reserved for a certain race or creed but it is one which any person has at their disposal. It is also a right which members of the public can enjoy without the need to justify why they need access to a particular body of information.

It must, however, be noted that FOI legislation does not exclusively serve individual curiosities of wanting to know what government is doing and how it does. It creates an environment where members of the public can individually or collectively hold government to account through the privilege of access to official information. 30 Although providing a legal right to access government information, FOI legislation does not suggest that the public can access the entire body of official information. It is a law which acknowledges that government, like any other individual, has the right to retain and keep certain information secret and away from public scrutiny. FOI legislation therefore, strikes a balance between the public’s right to know and the right of government to withhold certain information.

However, FOI 28 H MacNeil Without consent: the ethics of disclosing personal information in the public archives. (Metuchen, NJ: Scarecrow Press, 1992):62; P Birkinshaw Freedom of information: the law, the practice and the ideal 3rd edn. (London: Butterworths, 2001):28; The Campaign for Freedom of Information Freedom of information checklist: 1. 29 M Frankel Freedom of Information and corruption: paper for the global forum on fighting corruption and safeguarding integrity (London: The Campaign for Freedom of Information Ltd. , 2001): 1. Available at . Accessed 21/08/06; same expressions were made during the author’s personal interview with UK/16, 09/12/04.

30 D V Smiley The freedom of information issue:30; H Mitchell Access to information and policy making: a comparative study (Toronto: Commission on Freedom of Information and Individual Privacy, 1980):1-2. 12 legislation does not make it automatic for governments to withhold certain information and declare it inaccessible. It obliges governments to state reasons for non-disclosures as against the disclosure of other information. 31 In enforcing the right of access to official information, FOI legislation obliges governments to facilitate access upon receiving a request for it and also obliges them to proactively publish and disseminate information for public consumption without waiting for the public to seek for it.

32 FOI legislation therefore establishes three types of rights for citizens, namely: • A right for any individual who has made a request to access information to be told whether the information exists and is held by the respective agency; • A right to be given access to the information requested within the period prescribed by the law, for instance 20 working days according the UK FOI law; • A right to be told that the information requested for access exists but cannot be made available because a specific exemption applies. Through establishing the above rights FOI legislation obliges agencies to be abreast with six things:33 1. What is the information they hold? 2. Where is it held? 3. Who holds the information? 4. How accessible is the information? 5.

How can it be accessed? 6. Is the information reliable in relation to the transactions that gave rise to it? 31 K Kernaghan Freedom of information and ministerial responsibility (Toronto: Commission on Freedom of Information and Individual Privacy, 1978):1; T B Riley ‘Freedom of Information:’57 32 Article 19, CHRI, CPA and HRCP Global trends on the right to information: a survey of South Asia (London: Article 19, 2001). Available at . Accessed 21/08/06. 33 L Screene ‘How prepared are public bodies for the implementation of the UK Freedom of Information Act, in January 2005? ’ unpublished MA dissertation, University College London, 2004: 6. 13

In light of this, a UK respondent has highlighted that organisations by virtue of FOI legislation “have to know what they have…that is a very practical thing because if they have got a request for information, they have to know where they have to start looking. ”34 An Irish respondent added “accessibility goes hand in hand with knowing the information you hold. If it does not exist or is not held or where it is held is unknown, then it cannot be accessible. That is why organisations must have a system of managing information to support the need to make it accessible. ”35 What this obligation suggests, according to an Irish respondent is, that: agencies have to keep records and to keep quality records that demonstrate the decision making process.

On the downside, FOI also obliges them to create records-some of these records will be relied on to provide the information following a request for it. Thus, FOI forces administrators to be accountable with records once they have been created. They need to know: the records they create and hold; how long to retain them; where to retain them; how to retain them; how to make them accessible, and what to do with them once retention periods are met. 36 Generally, FOI legislation mandates governments to create and maintain records and information in a manner permitting for thei