- technical proficiency (as providers or enablers);
- policing (as monitors or enforcers);
- support (as ordainers or educators);
- auditing (as assessors of performance)?
- Who we are accountable to (employers, society, third parties, or the profession)?
- What we are accountable for (ordaining, providing, mentoring, monitoring, policing, etc)?
- How our performance should be measured (conformance to process or quality of outcome)?
- By whom (or how) performance can be monitored and corrected (courts, tribunals, ourselves, other third parties, the Independent Commission Against Corruption)?
The ASA and the Heiner Affair
Archivists and
Accountability: A commentary on ethical standards
 Chris Hurley |
by Chris Hurley
Abstract
The author, a
former Keeper of Public Records for the Public Records Office Victoria,
Australia, and Acting Chief Archivist at Archives New Zealand, presented this
paper at the 2004 annual conference of the Australian Society of Archivists
(ASA). In it, he summarises his view of the infamous Heiner Affair, a very
long-running dispute concerning destruction of records of a Queensland State
Government inquiry, and the various responses to it by the ASA, of which he has
been a member for 30 years. His
criticism of the society over its responses is well known to viewers of the
society’s “Aus-archivists” listserver.
In this paper, he suggests ways forward for the Society and the
profession generally to set the recordkeeping house in ethical and disciplinary
order.
For Chris Hurley's 1997 review of the Heiner Affair, see "The shredding of the Heiner documents: an appreciation". For his 1999 up-date, see "Shredding of the Heiner Affair records: an up-dating summary".
Chapter 1: The Age of Accountability
Near where I work, there is a building that has been undergoing
reconstruction for the last 18 months.
A sign on the hoarding reads: "In an age of accountability, this
building stands tall!" I have no
idea what that means. I suspect that
those who wrote the sign do not know what accountability means either. Let me begin, therefore, with my definition:
Being
accountable means being:
·
Clear about your role (who is accountable and to whom);
·
Clear about your function (for what are you accountable);
·
Measured (having standards or bench-marks), and
·
Monitored (some method of punishing or correcting deviance).
This paper is not about how good recordkeeping supports accountability. It is about the accountability of those who set the recordkeeping rules. It is about our accountability. What is our role and function? How is our performance measured? How are we monitored and corrected when we go astray? My answer to these questions is: we don't understand our role and function, we don't have bench-marks against which our actions are judged, and there is nothing to correct or punish us when we deviate. We ourselves are, in short, unaccountable.
As
agents of accountability, recordkeepers themselves must be accountable for what
they do and how they do it. Most of us
are probably accountable employees - just like everyone else. Employers make us accountable through
performance agreements, key results areas (KRAs), service level agreements (SLAs), etc.
Suppose we were also accountable professionals? What if a professional obligation conflicts
with an employment obligation? Can a
professional obligation over-ride any of the terms of a contract of
employment? If archivists have
professional accountabilities outside the terms of their employment, to whom
are they accountable and for what?
I was
asked to comment on papers from yesterday, in particular a paper dealing with
the destruction of evidence in advance of legal proceedings[1]
- a key issue in the McCabe Case and the Heiner Affair. The only comment I would wish to make is
that Camille Cameron deals, quite properly and I have no doubt competently,
with the legal issues.
The
point that must always be made about Heiner and about appraisals which involve
this kind of issue is that the role of the recordkeeper is not limited by the
legal requirements (whatever they may be) around the destruction of evidence. Moreover, the recordkeeper has no special duty to enforce the laws
concerning obstruction of justice. That
is not our accountability. Our
accountability lies in appraising records on more general grounds, taking the
law on obstruction of justice into account, certainly, but not being limited by
that aspect of the matter. If we have
the power to prevent destruction, and we do so on the grounds that records may
be needed in legal proceedings, it will be on a larger view of probabilities
and what is likely than can be satisfied by a simple inquiry about whether or
not proceedings are currently on foot.
Our consideration of the matter will not stop with the question
"Can it be destroyed?" We
must also ask: "Should it be destroyed?"
Some
archivists have a statutory discretion to allow or forbid the destruction of
documents. That discretion should not
be exercised in ignorance of the legal requirements regarding the destruction
of evidence (certainly not in defiance of any such requirement applying to the
particular instance), but the archivist's role and function is not to ensure
that the law regarding the destruction of evidence is complied with. We have neither the mandate nor the powers
needed to police legal obligations resting on others.
The
archivist's role and function is different.
In the exercise of the archivist's role and function, while we must
consider whether a breach of the law will occur, there may also be found other
reasons (besides the breach of a law) which would result in permission being
denied to destroy documents. I would
simply caution, therefore, that we must not allow the archivists' roles and
responsibilities in appraisal to be limited by legal requirements applying to
the destruction of documents. What we
know, what we have always said, is that legal requirements are only one factor
to be taken into account when reaching appraisal decisions.
|
“When
we campaign for greater access … we must at the same time campaign for
improved records management … There seems little point in having access to
information that is chaotic and unreliable.” Transparency
International, Global Corruption Report
2003 p.19. |
Are we accountable
for preventing chaos and unreliability?
Where does it say that? What do
we do to ensure the prevention of chaos and unreliability? Is it to be accomplished by technically
competent recordkeeping or by accountable recordkeeping? How do I recognise chaos and unreliability
is when I see it? What keeps me up to
the mark in my accountability to prevent it?
Supposing that is my role and function, is there a mark to be kept up
to? If so, who or what keeps me up to
it and how?
Are we accountable for good recordkeeping (if at all) only in relation to access - the focus of Transparency's comment? Are there other uses of records which require professional intervention so that chaos and unreliability are prevented? Is all of that subsumed by "access"? Is it only in relation to access "rights"? What about access needs? If rights based, does it pertain only to the public sector? Is there a different set of accountabilities for Archivists in the private sector?
Are there
different accountabilities in relation to:
Are we accountable for setting standards that apply to
others and for the kind of standards we set for them? Who sets the standards by which we ourselves are bound? Are we accountable to our Nazi employers for
building a better recordkeeping system to count heads as they pass into the gas
chamber? If we refuse, is that a
professional act, or merely an act of individual conscience, or is it a duty we
owe to society?
What happens when an appraisal goes bad?
Who, if anybody, has the job of doing something about our professional
failures? Are we self-regulating? Do we as a body of professionals punish or
correct transgressions within our own ranks or do we simply call someone else's
attention to it? After their attention
has been called to it (whoever they are), so what? What prevents it happening again? And again, and again, and again?
Before you can even try to answer that, you have to know (to have it
clearly stated and understood) what the Archivist’s job is.
Is
each archivist's accountability limited to his or her own actions? Are we collectively responsible for each
others' actions? Does accountability
extend to setting up systems that prevent (or at least detect and correct)
lapses by professional colleagues?
Whose job it is to punish and prevent deviation? How do we know when we have deviated (or
when another archivist has deviated)?
If it's someone's job to punish and prevent professional lapses, are they
doing it? If not, why aren't the agents
of our accountability being shamed and blamed for it? If it's nobody's job, what are we doing to change that?
Exposure
of recordkeeping lapses (by means of representations made to those who have
lapsed) is not much use (if that's all you do) because there are
well-established stakeholder management programmes for dealing with letter
writers. What is needed is data on how well (or badly) a clearly articulated
and clearly assigned role in recordkeeping is being carried out - or not, as
the case may be. The only way to get action in a modern democracy is to avoid,
at all costs, becoming a stakeholder. As a minimum, if you want accountability
to be policed, interested parties have to become a pain in the behind and
expose serial recordkeeping failures as evidence of systemic problems. This can
be done, even when the authority to police individual lapses is not vested in
the profession. First, however, roles
must be clearly articulated and clearly assigned. Prevent wriggling. Then start
documenting lapses.
Is it clear:
What is
it that we, as a professional group, want?
Does anybody else want the same thing?
Are we outraged only when recordkeeping doesn't occur "by the
book"? What is it that upsets us
when we read about recordkeeping lapses? Are we upset only because archivists
are side-lined and treated of no account, or are we are upset because
recordkeeping standards which should have upheld accountability were
violated? How do we know those
standards would have been effective even if the Archivist had been involved?
How can we be sure that the archivist is not complicit in failures of accountability? Would it be OK if lapses occur with the
blessing of the archivist regardless of whether the outcome was good or
bad?
No one
cares if archivists are side-lined, nor should they be, unless the involvement
of the Archivist adds value to the result.
People should only be upset if standards which would have supported
accountability are not maintained. If
the maintenance of those standards is our accountability, there must be
bench-marks which can be used to tell people what should (or shouldn't) have
happened - whether we've done our job, not just whether we were involved. How does anyone know we are doing our job
unless there are measures to tell them when we fail? Do we care only about process or about outcomes? Is any monitoring process in place to gather
information about how we are performing?
Confusion and
uncertainty exist over the role of the archivist. Is it support or policing? Are we proactive or reactive? Do we ordain, advise, or veto? There is ambiguity over which role or roles
(if any) archivists are actually assigned.
Comfortable and self-serving claims are made about archives programmes
supporting accountability, but all too often these disappear into a fog of
ambiguity and obfuscation when concrete action is required to remedy specific
lapses. There is a lack of benchmarks
by which to measure and evaluate our performance in that role (whatever it may
be). There is a lack of correctives to
remedy identified shortcomings in our performance.
|
UNCODIFIED
BEHAVIOUR Conflicting
or Disputed Expectations |
WHISTLEBLOWING
Interfering;
Renegade; Troublesome;
Loose Cannon; Busybody;
Courageous; Heroic;
Unpredictable |
ACTS OF JUDGEMENT
|
UNCERTAIN
OR DISPUTED ROLE |
|
CODIFIED
BEHAVIOUR Agreed
or Shared Expectations |
ACCOUNTABLE BEHAVIOUR
Conformity; Reliability;
Credibility; Ethical; Standards; Bench-marks; Auditing; Monitoring
|
ASSIGNED
OR AGREED ROLE Understood,
|
|
|
|
SOCIETAL
RESPONSIBILITIES Universal
Application; Wide
Impact (Applies
to Everyone) |
INDIVIDUAL
(OR GROUP) RESPONSIBILITIES Particular
Application; Specific
Focus (Applies
to Some) |
|
Accountable & Related Behaviours
What does accountable behaviour mean for us? It means having effective standards or
benchmarks - measures of behaviour that tell us what to do and what not to do
in professional matters. This is not
the same as a standard for good recordkeeping.
It is about defining our accountabilities in implementing and upholding
standards of good recordkeeping - especially where those standards give us a
discretion (where best practice involves submitting outcomes to our
judgement). If our role is to make
professional judgements but nothing limits, controls, or directs what we
decide, then we are carrying out what Barbara Reed has derisively called the
god-archivist role. But we are not
gods, are we?
Individual behaviour emanates from a moral or professional sense which may be shared but which certainly cannot be monitored or bench-marked in human terms. A bench-mark stipulates in advance of action professional behaviours which are collectively approved as good practice (whatever we may think as individuals) or behaviours which are collectively condemned and are therefore disallowed even if individually we do not agree with that. Without professional codes of ethics, standards of behaviour, and bench-marks of performance to guide and control us, we have only our individual morality to govern our response to difficult situations. We may well choose to act out of conscience, but this must not be confused with acting accountably in a professional sense.
Law-abiding behaviour has a wide or universal
application. The responsibility or
obligation applies to everyone. The
rule that every man is equal before the law means that everyone is subject to
the same rules (not that everyone gets an even break). Even where only some of us are involved (in
a contract of employment, for example) the principles apply to all. The way employment contracts are interpreted
and applied is in accordance with statutory or common law rules whose
application is universal.
The same applies to whistle blowing. Whistleblowers are do-gooders who point out when others are breaking the law or failing in a legal obligation. They’re not arguing for their own moral preferences, they are pointing out that someone is breaching a code or law that applies to everyone. It’s not a matter of expressing a personal preference but of highlighting a breach of rules that everyone should be following – even when the rest of us are prepared to wink at the “minor” infraction. That is what makes them a pain in the neck and not simply a nuisance.
Once bench-marks are
established two different kinds of accountability failures will arise:
1.
Breaches of those
bench-marks.
2.
Unforeseen lapses
needing new bench-marks to prevent a recurrence.
Bench-marks have to
be renewed and updated to take account of unforeseen problems.
Following the "Children Overboard" scandal, the lack of accountability surrounding the relationship between ministers, their advisers, and the bureaucracy and armed forces was identified in a Senate Report as a problem. The Director-General of the National Archives of Australia (NAA) was required to say what recordkeeping standards applied to ministerial advisers. Reference was made to some general and unspecific standards but in my view no satisfactory answer was forthcoming to the key question.
What had or could NAA do to prevent a recurrence of the recordkeeping failures identified in the review of these events? Suppose the Director-General had come away from the subsequent inquiry and issued a media release saying: " This case reveals serious flaws in our procedures which will be remedied immediately. I am issuing at once a new set of guidelines designed to ensure that dealings between ministers and elements of the public service and the armed forces for which they are responsible are properly documented when carried on through the medium of advisers."
Would such action lead to dismissal or merely to him/her being sidelined in the good old bureaucratic way? Could he/she have got away with it? If it had been done, would it have been an act of personal judgement on the part of the individual concerned or an instance of accountable professional behaviour? Not, I think, the latter.
The reason is simple: there is no professional statement obliging archivists to act in response to exposures of recordkeeping failures by using their position to eliminate the possibility of a recurrence of such failures in the future. If there had been, a Director-General acting in this way could have defended him-/herself by pointing out that he/she had a professional obligation to take remedial action in these circumstances. Indeed, the failure to take such action might have placed the Director-General in violation of professional codes of conduct.
Some wrongs in which professionals become involved cannot be dealt with otherwise than by resolving the conflict between what they are being asked to do and standards of behaviour required of them by the profession to which they belong. Consider how medical professionals have spoken out over the Children in Custody issue. Sometimes this has been in violation of restrictions on them as employees. But they have done it anyway and been protected to some degree by the fact that they have professional obligations that go beyond the narrow legal obligations of employee to employer.
Where is the statement of professional obligations for archivists that might afford us a similar measure of protection? To say nothing of the compulsion such a statement might place us under to do the right thing even if we didn't want to.
Chapter 2: Do archivists act well? The most important case of alleged recordkeeping failure in Australia in my lifetime, the paper continues.
© Chris Hurley June, 2004 (revised 2005)
Australian
archivist Chris Hurley is the Information and Archives Specialist,
Knowledge Management, for the Commonwealth Bank, Sydney. Previously, he was acting Chief Archivist at Archives New Zealand and, in the 1980’s, was Keeper of Public Records at the Public Record Office, Victoria.
In 2003, he won the Archives and Records Association of N.Z. (ARANZ)
Michael Standish Prize for his 2002 essay "Recordkeeping, Document Destruction, and
the Law" published in the Australian Society of Archivists’ journal Archives
& Manuscripts. Contact: chris.hurley@cba.com.au.