What are public archives?

Archives are the original records of an event at the time it occurred and preserved for posterity. Public archives record birth and citizenship, confirm death and ownership, verify rights and obligations, detail government policies and decisions and serve legal, operational, research and cultural purposes. They are a repository of significant and factual information that helps us to understand the history and identity of a community, the workings of a government and its publicly funded
bodies and enables us to benefit from the past.

Why are public archives important for society?

All responsible governments practising good governance need to document policies, decisions, transactions, activities and how they conduct business, spend public money, deliver services and evaluate outcomes, in order to sustain efficient operations, protect rights and obligations to ensure accountability and transparency.

Public archives should contain records created and used in government offices and public bodies for these purposes. Authorised professional archivists work with every department of the government to ensure that all public records, whether in respect of creation, management, transfer or archival preservation, comply with proper archival standards. These public records need to be appraised by professional archivists for enduring value and usefulness. The valuable records identified are then described, arranged and permanently preserved in special repositories for public access and use. The provision of open and fair access to public archives enables citizens to find out the reasons behind, and the processes of, government decision making and their impact on people’s lives. Non-valuable records are also identified in the appraisal process so that specific permission can be granted by archivists to the particular government departments and public bodies for scheduled destruction.

The identification and protection of archival records are an important function of government and this is recognised by all
societies, ancient and modern. In a modern state, it is part of a government’s public duty to ensure the proper creation, management, protection, preservation and transfer of records, as it is well known that once records are damaged, lost or destroyed they are irreplaceable. Tampering, of course, renders the public record unreliable.

Archives in China

China has always placed the greatest importance on the creation, protection and preservation of records. We know from our study of Chinese history that high official posts of great importance were created for the keepers of official archives. The writing of a dynastic history was dependant on the existence of the official archives. Archives were considered national treasures as they conferred legitimacy on the possessor of the archives.

Modern China not only supports the principle and practice of an archives law for government records, but has enacted archives legislation at both the national and regional levels. The Archives Law of the People’s Republic of China was enacted in 1987 (amended in 1996) and the Criminal Law of the PRC applicable to the Archives Law was amended in 2006. Municipal governments in China enact their own related archives laws. An example of this is the Shanghai City Archives Regulations which were amended in 2004.

Archives legislation worldwide and the position in Hong Kong

To ensure that a country has a good system of archives, all modern states and jurisdictions have archives legislation. For example, in Australia, the Archives Act 1983 (Cth) and, in New Zealand, the Public Records Act 2005, provides for, inter alia, ‘the preservation and use of archival resources’ and ‘the continuation of the repository of public archives’ respectively. In Asia, countries and territories such as Japan, Korea, Taiwan, Singapore, Malaysia, Mongolia and Macau all have archives legislation. Hong Kong, however, is the only exception. Hong Kong currently does not have archives legislation and it seems that the government is in no hurry to pass such legislation. This is both surprising and exceedingly puzzling given that Hong Kong is a Special Administrative Region that prides itself on its judicial independence, its adherence to the rule of law and its unique achievements post-1997.

The limitations of the Government Records Service

Unlike other jurisdictions, where the management of the government’s archives system is underpinned by legislation, the Government Records Service (GRS), a division of the administration arm of the Chief Secretary for Administration’s Office, oversees the management of public records in Hong Kong through internal administrative arrangements. The GRS operates with serious limitations:

• the selection of records as archives takes place only when they are considered by a government department, bureau or office as being no longer required for use by that body and not by the GRS;
• the alleged need to retain records for continuing use is frequently employed by the aforementioned government bodies as an excuse not to permit access to records for archival appraisal and transfer records to the Public Records Office (PRO), which is the designated government archives incorporated into the GRS Division;
• the GRS has no power to perform a records audit (let alone implement what, as will be seen later, is regarded in Australia as proper archival management) and cannot identify what public records were created, how and where they are kept, whether they have been wrongly disposed of or, if they are in existence, whether they are still reliable or usable;
• the GRS does not have any statutory powers and cannot require nor can it ensure that any government department, bureau or office will make their records available for appraisal or transfer, and government bureaus and departments are free to disregard GRS guidelines; and
• there is no specified procedure for imposing penalties on public officers who do not create, manage or preserve records properly or doctor, damage, lose or destroy records without notifying the GRS.

Other deficiencies and bad governance
The position of the GRS Director, a post that was once filled by an experienced and qualified archivist of the Archivist Grade, is now occupied by an officer of the Executive Grade whose job requirements, by implication, do not include professional archival training or experience in the management of public records. Similarly, a number of key professional positions that used to be held by professional archivists are now filled by Executive Grade staff and para-professionals. Only two of the five Archivist Grade officers currently staffed at the GRS are professionally qualified in archives
management.

The GRS has not issued a service-wide guidance or standard for the management and preservation of electronic records in government except for an interim guideline on the management of email which was issued almost a decade ago. This is a growing concern as information technology is increasingly being used in recordkeeping. Electronic records may be readily altered and are easily deleted. To ensure that electronic records remain authentic, accessibility and usability over
time requires the most up-to-date records management system and professional expertise.

There is no legal obligation on any of the 200 plus public statutory bodies, such as the Hospital Authority, the Housing Authority, the Urban Renewal Authority, the Monetary Authority and the universities in Hong Kong to properly manage, protect and transfer (unless where it has its own archives) archival records to the PRO for preservation and public access. The activities of these publiclyfunded bodies have a considerable impact on society and they should be subject to public scrutiny. This deficiency will result in, for example, the inability in the future to properly assess the decisions of the Hospital Authority during the 2003 SARS incident or the activities of universities and their impact on Hong Kong.

More than 100,000 records identified for permanent retention as archives have not been processed to permit public access. Many archives on temporary loan to bureaus and departments are never returned to the PRO. There is also an unknown quantity of classified archival records buried in the dark somewhere without a known disclosure date.

Access to archival records is subject to the Public Records (Access) Rules 1996. The Chief Secretary, upon advice from the head of any government department which has deposited public records, has extensive discretionary powers to refuse access to public records even after the expiration of the closed period of 30 years (rr 3 and 6). 

There is no mechanism for appealing against decisions to withhold access. Furthermore, the list of confidential records transferred to the PRO is no longer available to the public (from the online electronic catalogue for archival records of the PRO), which makes public access an impossible task. Being administrative guidelines, the Access Rules can be easily amended by the government. Furthermore, their enforcement is unknown, and they are discretionary and not legally enforceable.

Why Hong Kong needs an archives law

With the absence of archives legislation, the Hong Kong government has a free hand with regard to the treatment of its records. What is particularly worrying is that key government departments and bureaus, where the most important decisions are being made (such as Chief Executive’s Office, the Chief Secretary’s Office, the Financial
Secretary’s Office and the Security Bureau) have not made policy records available for selection and preservation since 1997.

Moreover, major public offices such as the Chief Executive’s Office, the Central Policy Unit and the Monetary Authority are not obligated to send their policy records to the PRO for archival appraisal or preservation. Without such records, the history of significant events such as the 1997 reunification with China, the introduction of the ministerial system in 2000 and how employment terms and conditions of political appointees were set and their selections made, will never be known.

Since 1997 and alarmingly so in the last five years, government departments and bureaus have been reluctant to turn over their records for selection and preservation by the PRO. The number of record items transferred has reduced from an annual average of 500,000 items between 2003-07 to 50,000 in 2008. According to the most recent statistics provided in 2011 by the government to the Legislative Council on Estimates of Expenditure 2011-12, the quantity of archival records transferred to the PRO dropped another 44% between 2008-09 and 2009-10.

Archives law is not a subject generally familiar to lawyers. It is therefore not surprising that both laymen and lawyers in Hong Kong often ask: What are archives and why is it so important to have an archives law? By understanding what a proper statutory archives
system ought to be, such as those prevailing in other jurisdictions and comparing them to the system currently existing in Hong Kong, one realises that there is a compelling  necessity for archives legislation in Hong Kong.

The best way to illustrate the point is to use an extract from the ‘Records Authority 2010/00643150’, a report published by the National Archives of Australia. It sets out, under statutory authority, the obligations of the Land Councils in respect of its record management relating to aboriginal land in Australia. A copy of the extract, which hereinafter will be referred to as the ‘LC Records Authority’ has been reproduced on pp 27-29.

It is astonishing to see the contrast between a modern, professional and transparent system of government archiving that exists under a legislative regime and one that is the archaic, opaque and without a legislative framework or authority. The opaqueness of the present system coupled with the government’s resistance to archives legislation give rise to serious concerns for the safety and integrity of Hong Kong government records and the long term viability of good governance in Hong Kong.

The Hong Kong government plans to relocate its Central offices to the new Government Complex at the Tamar site in September 2011. When the major move takes place, the biggest Hong Kong government office move in history, many records are likely to be disposed of. It is typical that when people move house, large quantities of items are thrown away or misplaced. Once thrown away, these important government records will be irrecoverable. What would be even more alarming are the records that are misplaced or lost during the move, and are subsequently relocated and found again, raising doubts as to their integrity and by implication of all records.

Electronic records now comprise of an increasing proportion and important part of the government’s recordkeeping system. Electronic records are, by nature, easily manipulated or deleted. Long term strategic planning for their continuing maintenance and accessibility as archives is required. Proper management of governmental electronic records is essential and should also be brought within the legislative framework of a government records management system.

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In light of the issues discussed above, it should be acknowledged that in the area of governing archives, Hong Kong has fallen badly behind and it is high time Hong Kong caught up with the rest of the world by enacting an archives law.

Archives legislation proposal

In 2008, a group, consisting of lawyers, archivists and historians, was formed to study the necessity of archives legislation in Hong Kong and later it became known as the Archives Action Group (AAG). After carrying out a study of the public archives situation in Hong Kong and in other countries, the AAG came to the conclusion that the prevailing system for managing government records in Hong Kong can only be changed by archives legislation. The AAG drafted a model archives law for Hong Kong after examining archives legislation in other jurisdictions such as Australia and New Zealand. In March 2010, the AAG completed the Draft Public Records Bill (the ‘Bill’).

While a detailed analysis is not possible in this article, what follows is an overview of the Bill structure:

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Archives management system under the Bill
To ensure an open and transparent archives management system, Part II of the Bill provides for the following:

1. the establishment of a Government Archives and Records Authority (the ‘Authority’) with certain functions and powers (ss 6 and 7);
2. an appointed Government Archivist (s 8) with certain powers and duties to carry out the functions of the Authority and with specific safeguards for the independence of the Government Archivist (s 9); and
3. the establishment of an Archives and Records Council (the ‘Council’) that acts an independent supervisory body of the Authority (s 12) which also serves as an appeals body in cases of disputed public access to records (s 19).

Members of the Council will consist of members appointed by the Chief Executive, the Chief Secretary, the Chief Justice, the Director of Audit, the Legislative Council, the Bar Association and the Law Society. The Council will be required to submit an annual report to the Chief Executive and the Legislative Council.

The Bill intentionally draws wide application (s 5), so that the legislation is applicable to not only the government but all public offices including any institution, body or individual, funded wholly or partly by public money (s 2).

Recordkeeping and record management under the Bill
Part III provides for the statutory recordkeeping and records management requirements of public offices. Pursuant to s 13, the heads of public offices are responsible for:

(a) creating and maintaining proper public records and ensuring safe custody and conformity with the standards, guidance and recommendations issued by the Government Archivist; and
(b) ensuring that no public records are tampered with.

The heads of public offices must prepare and implement proper records retention and disposal schedules, as directed by the Government Archivists, and ensure that no public records are disposed of without the prior written consent of the Government Archivist
(s 14). They must also effect proper transfer of public records as directed by the Government Archivist. Public records must be transferred as early as practicable, and no later than 20 years from the date of their creation (s 15).

Access and sanctions under the Bill
Part IV of the Bill provides for public access to the public records (ss 16, 17 and 18) and for appeals to the Council in cases where access is disputed. Part V provides for legal sanctions of fines and imprisonment for breach of a statutory duty under the legislation.
The sanctions range from a fine of HK$100,000 or 12 months’ imprisonment for public officers in respect of Part II offences (ss 13, 14 and 15) to a fine of HK$200,000 or 24 months’ imprisonment for unauthorised removal or destruction of records, or export of public records outside of Hong Kong (s 22). Improper denial of public access to records attracts a fine of HK$100,000 or 12 months’ imprisonment (s 23).

Views sought from the legal community

The detailed merits of the Bill would be a matter suitable for discussion by the Hong Kong legal community. What is of critical importance is for the Hong Kong legal community to share their views on:

1. whether there is a case for archives legislation in Hong Kong and whether it is urgent; and
2. if the answer is yes, what should be the core provisions in such archives legislation, such as those referred to earlier.

An archives legislation will ensure that Hong Kong will have the benefit of regular published reports from the Authority and the Council about the archives on record, whether retained or disposed of, and more importantly it will ensure transparency on how government records are handled, which is an essential aspect of good governance.

Good governance and preserving history

The lack of archives legislation in Hong Kong poses a serious risk that our public records are not secure and cannot be relied upon. The Hong Kong government’s persistent resistance to the enactment of an archives law is unfathomable. The long term negative significance and impact of this for Hong Kong can only be speculated upon. When the legal community has had the opportunity to consider the issues
that have been raised, it is hoped that members of this community will express their views about the necessity for archives legislation in Hong Kong to ensure the good governance of archival government records so that history can be preserved for future generations.

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William Waung
Founding member of the Archives Action Group
Adjunct Professor, The University of Hong Kong
Former Judge of the Court of First Instance, HKSAR

A copy of the Public Records Bill is available on request by email to:
archivesaction@gmail.com.ra/2010-00643150.pdf.