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Issue 12 – The impact of the State Records Act and accountability in record keeping

Welcome:
As I write this month’s edition I am struck by how fast time goes, especially when you need more of it.   When I wrote the first edition of Information Overload last September I remember thinking that writing a newsletter once a month would be a relatively fast and simple process.  However, given some of the topics that have been covered to date I have had to revise my thinking somewhat.  For those of you who are faced with major projects and especially those government agencies who are putting together the key components of the West Australian State Records Act, you will certainly understand what I mean.  If the words 7 th March 2004 strike a chord of panic then you are one of those agencies who have not yet managed to submit your draft record-keeping plan to the State Records Office.  To the rest of our readers, the words March 2004 may mean very little, and I would like to apologise to all our overseas readers and readers from the other states and territories within Australia if we focus this edition on a subject that may have little interest or relevance to you.  But with March 2004 fast approaching and WA government agencies running out of time to produce their record keeping plans, the team at IEA decided that perhaps the subject needed to be raised and debated once again. 

In this Issue we will be looking at:
• Requirements of the WA State Records Act 2000
• Is the State Records Act “Unworkable” for Elected Members?
• Post 7 March 2004
• ARRM Update
• A Thought to Ponder

Requirements of the WA State Records Act 2000
The State Records Act 2000 of Western Australia is an Act to provide for the keeping of State Records.  Section 61(1) requires the State Records Commission to establish principles and standards for record keeping.  These Principles and Standards
came in to effect on the 6th March 2002.  The Principles and Standards define the management of records by state organisations including local government to ensure that State records are created, managed and maintained over time, and disposed of in accordance with the principles.

The Principles and Standards include:
• Standard 1: Government Record keeping.
• Standard 2: Record keeping plans.
• Standard 3: Appraisal of records.
• Standard 4: Restricted access archives.
• Standard 5: Compulsory transfer of archives.
• Standard 6: Outsourcing

The rationale behind Principle 1 Record Keeping by State Organisations is to ensure accountability across Government, and to ensure consistency in record keeping and better record keeping practices by all government agencies.

Standard 2 contained within the State Records Principles and Standards 2002 is concerned with the development of a Record Keeping Plan (RKP). The RKP is a definitive document as it sets out the matters about which records are to be created by the organisation and how it is to keep its records.  The Standard itself is comprised of 6 principles namely:
• Principle 1: Proper and Adequate Records
• Principle 2: Policies and Procedures
• Principle 3: Language Control
• Principle 4: Preservation
• Principle 5: Retention and Disposal
• Principle 6: Compliance.

In order to gain approval for the Record Keeping Plan government agencies must prove that they have met the minimum requirements as laid out in the West Australian Government Gazette No 38, Tuesday March 5 2002.

For example, the minimum requirement for Principle 5 – Retention & Disposal requires a government agency to have an approved records Retention & Disposal Schedule (R&D) operating within the organization.  As I write this, of the expected 254 R&D’s, only 50 have been presented to the State Records Office.  Until such time as the R&D is approved then the Record Keeping Plan cannot be granted approval.

Is the State Records Act “Unworkable” for Elected Members? 
The following article was taken from a series of responses written by Shirley R Cowcher, the Director of Information Enterprises Australia.

I have listened, and read, with interest comments made about how “unworkable” the requirements of the State Records Act 2000 are for local government elected members and how this Act comes into effect in March 2004.  I would like to make a contribution to the discussion as a ratepayer and a person who works in the records management industry and supported the formulation and enactment of the legislation.
Firstly, the State Records Act 2000 was proclaimed on 30th November 2001.  Within the Act is a requirement that all government organisations must submit a draft Record Keeping Plan within 2 years after principles and standards come into operation.  The Principles and Standards were published in the Government Gazette on 5 March 2002.  All government organisations, including local governments, have been aware of this requirement since March 2002.
Secondly, the definition of a record within the State Records Act 2000 is
any record of information however recorded and includes:
(a) any thing on which there is writing or Braille;
(b) a map, plan, diagram or graph;
(c) a drawing, pictorial or graphic work, or photograph;
(d) any thing on which there are figures, marks, perforations, or symbols, having a meaning for persons qualified to interpret them;
(e) anything from which images, sounds or writings can be reproduced with or without the aid of anything else; and
(f) any thing on which information has been stored or recorded, either mechanically, magnetically, or electronically;

It should be noted from this definition that conversations, in person or over the telephone, are not defined as “records”.

However, an issue that needs to be considered in terms of accountability of elected members and government in general is whether conversations should be written down as a “note to file”.  My opinion, and I know there are many others that support me, is that if an elected member makes a verbal commitment that involves the council then the elected member should record that decision and that record should become part of the council’s record keeping system.  Councillors like State Government Ministers must wear two hats:
• Elected representative
• Appointed Minister/ Mayor/ Committee Member.

There are discussions and actions that may occur by an elected representative that does not commit the government, whether local or state, and as such do not need to be recorded as government records.  However, if the discussion or action commits the government through the position held by the elected representative then the action must be recorded as a government record.

The State Records Act 2000 is quite extensive in its range and whilst it does not include members of the legislative assembly or legislative council or committees of the assembly and council it does include:

• The Governor
• The Governor’s Establishment referred to in the Governor’s Establishment Act 1992.
• The Executive Council.
• The Cabinet.
• A Minister of the Crown.
• The parliamentary secretary of the Cabinet or a parliamentary secretary holding office under section 44A of the Constitution Acts Amendment Act 1899.
• A court or tribunal established or continued under a written law.
• The Police Force within the meaning of the Police Act 1892.
• An incorporated or unincorporated body established or continued for a public purpose under a written law.
• An office, post or position established or continued for a public purpose under a written law.
• A department as defined in the Public Sector Management Act 1994.
• A local government or regional local government under the Local Government Act 1995.
• A Royal Commission established under the Royal Commissions Act 1968.
• A body or office that is established by the Governor or a Minister.
• A commission, board, committee or other body established by, or a person appointed by, the Governor or the Government of the State or a Minister of the Crown to advise on, inquire into or investigate any matter. (Schedule 1, State Records Act 2000)

I believe that the WA Local Government Association should be supporting the intent of this legislation because by making a record of a commitment or decision made by an elected member that affects the operations of the council it is ensuring accountability and openness, two of the objectives listed in the Association’s discussion paper Establishing A Regulated Code Of Conduct For Elected Members and Committee Members. www.walga.asn.au/policy/governance).

This legislation, whilst onerous in terms of having to implement standard practices in record keeping and establish a plan for the implementation and continuing management of the standard practices, is only really regulating the requirements of the Local Government Act 1995.  The Local Government Act requires that the CEO has a duty to ensure that Accounts and Records are kept and up to date and ready for inspection (Local Government Act 1995, 6.5).  I believe that all members of a community have a right to expect government and public companies to be open and accountable and this cannot be achieved without efficient and effective record keeping systems.  Isn’t it a pity that legislation has to be enacted to enforce people to do what seems so obvious to others – Record your actions and decisions so that they can be seen by all that they affect.

Post March 7th 2004
It is my understanding that the Record Keeping Plans are supposed to provide an accurate reflection of the record-keeping programme currently in place within an organisation.  My question is this – how will the State Records Office be able to verify the claims being made by the agencies? Or has an unfair burden been placed on the State Records Office in this regard?

As this is an ongoing process, with RKP’s having to be evaluated every five years – will the State Records Office again be faced with a mad rush to submit revisions or submissions?  Where is the support for this organisation who faces what seems to be almost an uphill battle to ensure accountability within our government agencies.

And in addition to this seemingly unfair burden, will the State Records Office be responsible for the collection of the fines from those agencies that have failed to submit a Record Keeping Plan?  Will the SRO be able to keep the monies collected in order to further the work of the Records Industry within WA or will the government claim it?

ARRM Update:
Strange but true – The South Australian SHOP TRADING HOURS ACT 1977, states that shop traders must have a license to sell motor spirits and lubricants after regular trading hours (s.17), and contravention of this can result in a $10,000 fine.