Monday, 29 February 2016

Political accountability needs written record of government decisions

Nuala Haughey: The Oireachtas Inquiry into the Banking Crisis reviewed about 500,000 pages of documents from various bodies including banks, government departments and State agencies.

Yet not a single official document was provided to it relating to the marathon overnight meetings in Government Buildings that led to the blanket bank guarantee. Hamstrung, the inquiry had to rely on the recollections and scribbled notes of those who attended some or all of the meetings on 29th to 30th September 2008.

The fact that no formal minutes or official documents survive from such crucial meetings may be troubling, but it is not altogether surprising. Successive inquiries and reports into matters of significant public interest have revealed that when it comes to government decision making, ‘off the record’ practices too often prevail.

Recently, the Fennelly Commission of Investigation was stymied by the lack of a ‘paper trail’ of evidence when it tried to ascertain the sequence of events that led to the retirement of the former Garda Commissioner, Martin Callinan. The Commission was unable to find a note or record of any kind of a four hour meeting at which the Taoiseach instructed the then Secretary General of the Department of Justice to deliver a message to the Garda Commissioner in his home.

In an interim report, Mr Justice Nial Fennelly took the opportunity to publicly register his “astonishment at a system of public administration which apparently quite deliberately adopts a practice of not keeping any record of a meeting where an important decision is made”.

Will official Ireland learn the lessons from these and other inquiries by making sure that significant government decisions and actions are documented to a standard that can withstand independent scrutiny?

Or will it cleave to the approach, widely ascribed to a 20th century Boston ward boss of, "Never write if you can speak; never speak if you can nod; never nod if you can wink"?

Political party manifestos are strewn with commitments to increase transparency and accountability in government and politics. There is an opportunity for the incoming government to make these commitments real by tackling the oral culture of decision making in government that inhibits evidence-based decision making, defeats attempts at oversight, and deprives us of vital historical records.

An effective way to do this is to introduce a legal “duty to document,” obliging public bodies to create and maintain full and accurate records of their activities. These would include minutes of meetings, briefing notes, memorandums and written policy advice.  Similar statutory obligations already exist in New Zealand and some Australian provinces.
The introduction of a duty to document was also recently recommended in Canada after an official inquiry into the triple deletion of emails by political staff in order to skirt freedom of information laws.

A legal duty to document need not be burdensome.  It does not mean denying government ministers and senior officials a “safe space” for sensitive policy discussions. Nor does it mean recording every single meeting or preparing file notes of every conversation. What it does mean is that, as matter of routine, government ensures that it produces and maintains the evidence base needed for accountability purposes. In order words, all significant decisions and actions should be documented to a standard that allows others to understand the reasons why a decision was made or an action taken. Naturally, the level and standard of documentation should increase as the consequences of decisions and actions increases.

This is basically a risk-based approach, as it requires officials to anticipate the potentially harmful consequences of not creating adequate records of significant events and decisions. The types of consequences that officials should consider include damage to the government, the public health, the environment, public safety, the public finances, the public interest, etc.

Official guidance could be introduced fleshing out details of what exactly the duty to document means in practice. For example, guidance to Australian public officials says they should record and maintain significant decisions by Ministers, and the basis for them including advice on options and risks, as well as meetings and discussions with Ministers or stakeholders which may have policy or programme significance. In extreme cases in Australia, a failure to keep good records may expose public service employees to proceedings for breach of their Code of Conduct, as well as civil or even criminal proceedings.

There is little doubt that mobile and cloud communications technologies and practices such as remote working pose challenges for public servants when it comes to creating and maintaining full and adequate records of their activities.

As well as these practical issues, we have seen anecdotally with our experience of Freedom of Information laws that reforms aimed at introducing transparency into government affairs can create further temptation towards a culture of oral government.

However, such a misguided response only further underlines the need for a positive duty to document. The alternative is to wait for the next official inquiry to come along and tell us once more what we already know.

Nuala Haughey is a project manager with TASC, Think tank for Action on Social Change. She is the author of TASC’s latest policy brief, Setting the Record Straight: Record Keeping for Good Governance.

This blog first appeared in The Irish Times

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