Submissions on Archives Law

11 March 2019
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The Law Reform Commission of Hong Kong issued a consultation paper in December 2018 on Archives Law (“Consultation Paper”). Since preservation of government and/or public records is of interest to consumers in general, the Council provides the following submissions in response to the Consultation Paper with a view to enhancing protection and promotion of consumer rights. Unless otherwise stated, we shall adopt the same abbreviations in the Consultation Paper.

 

Consultation Questions 1

(i) Should the current placement of GRS within the Government continue?

The Council is of the view that the current placement of GRS should continue to be within the Government.

 

The Council proposes that a well-qualified Chief Archivist should be appointed by the Administrative Wing of the Chief Secretary for Administration’s Office in managing, developing, supporting and preserving government records. The Chief Archivist, in the performance of his duties and the exercise of his powers, should act and make determinations independently without being subject to the opinions, instructions or control of the Chief Secretary’s Administration Office.

 

(ii) If the answer to (i) is in the negative, in what way should the GRS' placement be changed, and what are the reasons for your suggestions?

 

(iii) Is there a need for the appointment of an advisory body to provide advice on public records and archives management matters?

The Council is of the view that an advisory body should be established in this regard to give advice and guidance on the management of these matters while GRS should be responsible for the operational aspects.

 

(iv) If the answer to (iii) is in the affirmative, what should the role, composition and functions of the advisory body be?

The role of the advisory body is to provide advice, assistance and support to the Chief Archivist and GRS concerning recordkeeping and archives matters. The advisory body, GRS and the Chief Archivist should prepare annual reports on GRS operations, which will be presented to the Chief Secretary for Administration’s Office and the Legislative Council for enhancing transparency of the work of GRS and safeguarding public interests. The composition of the advisory body should include specialists on archives law and international archival practice, journalists, information architects, historians, lawyers, IT professionals, experienced librarians, academics, persons with extensive management experience, persons with experience in public administration and other related professionals.

 

Consultation Questions 2

(i) Are the documents and information currently published on the GRS' website sufficient (as set out in paragraph 5.4 of the Consultation Paper)?

The Council considers that GRS website is not sufficiently comprehensive.

 

(ii) If the answer to (i) is in the negative, what other documents and information should the GRS disseminate and what are the reasons for your suggestions?

In addition to GARDS, GRS should also keep various registers available for public inspection including a register of deferral of transfer of records, a register of different types of records held in its custody and preservation and a register of research involving archives for enhancing the transparency of the work of GRS.

 

Consultation Questions 3

(i) Is the current obligation for the creation of public records, which is subject to the civil service general regulations in conjunction with the guidelines on creation and collection, adequate in ensuring the proper creation of records?

The Council is of the view that the current obligation for the creation of public records is inadequate.

 

(ii) If the answer to (i) is in the negative, in what way can the current obligation be improved and what are the reasons for your suggestions?

Creation of records is a vital part of archives law. Specific and unequivocal legal obligation should be imposed on the heads of B/Ds to create adequate and accurate records of affairs, including any matter that concerns independent contractors and non-governmental parties. In the absence of a directive to create such records, some officers could interpret that to mean that there is no real need to do so and therefore the default position could be not to create them in the first place. The Council is of the view that failure to comply with this obligation should be subject to investigation by the Chief Archivist (see our answer to Question 10(ii) below).  

 

Consultation Questions 4

(i) Is the GRS' current guidance to B/Ds on review of records disposal schedules sufficient?

The Council considers that the current guidance on review of records disposal schedules is sufficient. The Council suggests that documents which record certain important decisions of government policies and projects involving large government funding or of highly controversial nature should, in general, be kept for a longer retention period.

 

(ii) If the answer to (i) is in the negative, what other assistance should be provided to enable B/Ds to properly review their records disposal schedules and what are the reasons for your suggestions?

 

Consultation Questions 5

(i) Is the current mechanism for transfer of government records to the Public Records Office for appraisal appropriate?

The Council is of the view that the current mechanism for transfer of government records to the Public Records Office for appraisal is inadequate.

 

(ii) If the answer to (i) is in the negative, in what way should the current mechanism be improved, and what are the reasons for your suggestions?

The Council proposes that the general retention period should be shortened from 30 years to 25 years following the practice in other jurisdictions such as New Zealand and Singapore.

 

In order to ensure and safeguard the adequacy of contemporaneous records, the Council suggests that the appraisal of government records by B/Ds should be conducted much earlier and on a more regular basis before the expiry of the general retention period say every 5 years. This review could also include the review and appraisal for access status (See our answer to Questions 5(v) and 5(vi) below). If there happens to be any inadequacies, B/Ds could remedy the situation in a timely and efficient manner, rather than wait until the appraisal period which is at 30 year period as this could be too late.  Regular/timely appraisal is of the essence in order that these records can be created, assessed and preserved.

 

(iii) Is the current arrangement for deferral of transfer of records by B/Ds appropriate?

The Council considers the current arrangement is inappropriate.

 

(iv) If the answer to (iii) is in the negative, in what way should the current arrangement be improved, and what are the reasons for your suggestions?

The Council considers that the retention period should be shortened from 30 years to 25 years following the practice in other jurisdictions such as New Zealand and Singapore. Legal obligations should be imposed upon the heads of B/Ds to transfer the time-expired records to GRS in a timely manner.  

 

If there is a need for deferral of transfer, the heads of B/Ds should be required to first seek approval from the Chief Archivist or GRS and such application must be supported by cogent, well-justified and specific reasons for the deferral. General and simple reasons such as “operational need” or “for reference” should not be acceptable for deferral application. It is proposed that deferral of transfer should not be made unless the records are subject to administrative use, statutory exemptions such as documents concerning national security, international relations and foreign affairs etc., documents subject to legal professional privilege, or contrary to public interest.

 

(v) Is the current mechanism on review and determination by B/Ds of the access status of records before their transfer to the Public Records Office for preservation and public access appropriate?

The Council considers that the current mechanism on review and determination by B/Ds of the access status of records before their transfer to the Public Records Office for preservation and public access inadequate. (See our answer to Question 5(ii) above)

 

 (vi) If the answer to (v) is in the negative, in what way should the current mechanism be improved, and what are the reasons for your suggestions?

As mentioned above, the Council considers that the retention period should be shortened from 30 years to 25 years following the practice in other jurisdictions such as New Zealand and Singapore. The determination of the access status must be supported by specific reasons, not general reason, and any refusal of access should be approved by GRS. (See our answer to Question 5(ii) above)

 

Consultation Question 6

In your view, what other measures should the Government adopt to expedite the implementation of ERKS and what are the reasons for your suggestions?

The Council cannot comment on this question as we do not have the required expertise and/or experience in ERKS.

 

Consultation Questions 7

(i) Has the current PDPO struck the right balance between the preservation of archives and protection of personal data?

The Council considers that the current PDPO has struck the right balance between the preservation of archives and protection of personal data.

 

Data Protection Principle 3 under PDPO stipulates the principle of the use of the personal data in which the data subject or the relevant person has to give their consent before the use of the data. The “use” as defined in section 2 of PDPO includes disclosure and transfer of the personal data, which is the essence of archives law.

 

To facilitate archival purposes, sections 63D and 26 of PDPO provide the corresponding exemptions. In particular, section 63D is stipulated for Government archival purposes. The exemption is limited to use by the GRS solely for the purpose of (a) appraising the records to decide whether they are to be preserved; or (b) organizing and preserving the records.

 

Any other subsequent handling of the records, such as access by third parties or general public, would still be subject to the data protection principles.

 

Section 26 provides the exemption to the erasure of personal data which is no longer required based on public interest and historical interest. It is noted that “historical interest” is not specifically defined. However, it is interpreted that as long as the data is of archival value and even if the purpose is of historical interest only, it should be preserved under PDPO.

 

The aforesaid exemptions are considered to be in line with how overseas jurisdictions reconcile the conflict between privacy legislation and archival laws. In particular, Australia, England, Ireland and New Zealand provide exceptions to the application of the privacy and data protection law to facilitate archival work whereas Singapore specifically states that other written laws prevail over its data protection law.

 

The Council regards the right to privacy and the right to the protection of personal data as key consumer rights and therefore places significant emphasis on their protection. The Council would further like to point out that data protection principles have to be strictly adhered to but for the exceptions stated in sections 26 and 63D for archival purposes. For the reasons stated above, the Council is of the view that the present PDPO strikes an appropriate balance between the preservation of archives and the protection of personal data.

 

In the light of the upcoming review of the current PDPO, when drafting any future amendments to this legislation to bring Hong Kong in line with international privacy protection laws such as the General Data Protection Regulation, the Government should ensure that this balance is maintained, reflected and incorporated into the new legislation.

 

(ii) If the answer to (i) is in the negative,

     (a) what in your view is the right balance?

     (b) what other measures can be adopted to achieve this balance? and

     (c) what are the reasons for your suggestions?

 

Consultation Questions 8

(i) Should census schedules be preserved as archives after a census exercise?

 

(ii) If the answer to (i) is in the affirmative, should the subject individual's consent be required as a precondition for preserving his census schedule and what are your reasons?

The Council has no comments on this question.

 

Consultation Questions 9

(i) Should the current 30-year timeframe on the transfer of records by B/Ds to the GRS be retained?

The Council is of the view that the current 30-year timeframe on the transfer of records by B/Ds to the GRS should not be retained. (See our answer to Question 5(ii) above)

 

(ii) If the answer to (i) is in the negative, (a) what are your reasons, and (b) what in your view is the appropriate timeframe and why?

The Council considers that the general retention period should be shortened from 30 years to 25 years following the practice in other jurisdictions such as New Zealand and Singapore. (See our answer to Question 5(ii) above)

 

Consultation Questions 10

(i) Are the existing measures sufficient in ensuring B/Ds' compliance with their records management obligations?

The Council is of the view that the existing measures are insufficient in ensuring B/Ds' compliance with their records management obligations.

 

(ii) If your answer to (i) is in the negative, what additional measures would you suggest and what are the reasons for your suggestions?

As the Council considers that the current public records management regime could not ensure B/Ds’ due/effective compliance with the relevant rules and guidance, the Council is of the view that an archives law should be enacted as soon as possible.

 

The Council suggests the following additional measures for LRC’s consideration. GRS and the Chief Archivist should submit its annual general reports on its operations, the state of recordkeeping within public offices and other relevant activities to the Chief Secretary for Administration or a responsible officer at the Chief Secretary for Administration’s Office and copies of the reports shall be laid before the Legislative Council for discussion and scrutiny. This approach is in line with the practices in other jurisdictions.

 

The new archives law should provide clear legal consequences to non-compliance with all the statutory duties imposed thereunder. In particular, willful loss or unauthorized destruction of public records should attract legal sanctions. Drawing reference from the enforcement powers under the Personal Data (Privacy) Ordinance (PDPO),the Chief Archivist or GRS should be empowered to investigate the matter and issue an enforcement notice requiring remedy of the breach. Failure to comply with the enforcement notice issued by the Chief Archivist could be made an offence and the B/Ds, in breach of the enforcement notice, may be subject to a fine or more stringent penalties. The new law should also provide appeal mechanisms against decisions made by the Chief Archivist and GRS.

 

With the imposition of legal obligations under this proposed legislation, this should create more clarity and remove possible ambiguities under what constitutes “misconduct” under the existing common law offence of misconduct in public office and this should serve as an added layer of protection against willful breach of the statutory duties under the new law by individual officials.

 

Further, the new archives law should give GRS the power to inspect government records held by B/Ds or under their control. The Chief Archivist should be given power to issue an “information notice” to require information from B/Ds. In essence, GRS should, with reasonable notice to B/Ds, be given full and free access to all government records held by B/Ds subject to certain statutory exceptions. Furthermore, GRS should be given power to audit their records management practices under the new law. The greater the transparency in government recordkeeping system, the better the interest of public can be safeguarded.

 

Consultation Question 11

Do you think there is a case for introducing an archives law to strengthen the current public records and archives management framework and what are your reasons?

The Council agrees with LRC’s views that there is a case for introducing an archives law to strengthen and monitor the current public records and archives management framework.

 

The Council considers that GRS should be empowered with legal force to ensure compliance by B/Ds on records management requirements with proper sanctions imposed upon the B/Ds in breach of provisions in the new archives law. As referred to in the consultation paper, Hong Kong should have in place an archives law that is comparable with other jurisdictions in order to safeguard the interest of the public.

 

Consultation Questions 12

(i) Do you agree with our provisional views?

The Council agrees with LRC’s provisional views as regards the scope of public bodies to be covered, i.e. enumerating from time to time specific bodies that should be subject to the public records management regime.

 

As a note of caution, there are currently hundreds of public/statutory bodies in Hong Kong and their sizes and operations vary enormously. In due course, charitable organisations and some NGOs could also be subject to this proposed legislation. The Council is mindful of the administrative burden this new law will create on the relevant entities, in particular, how this would impact the smaller bodies/organisations in terms of the likely strain which could be put on their manpower and resources. When implementing this proposed legislation, the Government should ensure that these smaller entities have the necessary and/or additional resources, support, advice and assistance to enable them to comply with the new law. Pragmatic guiding codes should also be drawn up by the new advisory body to give proper guidance and assistance to the public/statutory bodies especially during the implementation stage.

 

(ii) If your answer to (i) is in the negative, what are your reasons?