Keeping Government Publications Online

Ensuring Future Access to Electronic Publications: the Legalities

A paper by Justin Hyland Senior Lawyer, Government Law Group Australian Government Solicitor for the Keeping Government Publications Online : Guidelines for Commonwealth Publishers Seminar, July 2002.

New challenges arise in the ‘digital age’ for preservation and management of records. There are challenges for lawyers, who must play ‘catch up’ to ensure the law keeps pace with technological developments. Hence, for instance, we now have the various Electronic Transactions Acts passed by the Commonwealth and the States, mostly introduced in 2000 or later, several years after the widespread use of electronic transactions had become commonplace.

There are also significant challenges for Commonwealth records managers. The Auditor-General in his recent report on Recordkeeping notes:

The electronic recordkeeping environment is composed of diverse applications such as email, databases and information systems, web-sites, and other electronic documents in various versions and workspace locations (for example, word processing documents). Organisational approaches to the capture of records from this environment had not been fully developed. Organisations generally advocate a simplistic 'print-to-paper' approach to staff capturing records from the electronic environment. However, this approach to recordkeeping has not been fully developed and consistently implemented by organisations. Increasingly, the approach is also not meeting recordkeeping requirements across the full range of their electronic applications. 1

How does the law view electronic records and how do they compare under the law with ‘hard copy’?

Essentially, there is now no distinction under relevant Commonwealth legislation between electronic and ‘hard copy’ records. Our laws define both records and documents broadly.

Section 25 of the Acts Interpretation Act 1901 provides that in any Commonwealth Act, unless the contrary intention appears, record includes information stored or recorded by means of a computer. To the extent that records are documents, either individually or in a series, this is also covered in section 25 of the Act. Document is defined to include, among other things, any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device. (A similarly broad definition of document is included in the Freedom of Information Act 1982.)

In section 3 of the Archives Act 1983, which concerns Commonwealth records, record is defined to mean a document (including any written or printed material) or object (including a sound recording, coded storage device, magnetic tape or disc, microform, photograph, film, map, plan or model or a painting or other pictorial or graphic work) that is, or has been, kept by reason of any information or matter that it contains or can be obtained from it or by reason of its connection with any event, person, circumstance or thing.

Under the Evidence Act 1995 the meaning of document is also very broad. Document is defined to mean any record of information, and to include, among other things, anything from which sounds, images or writings can be reproduced with or without the aid of anything else.

Why keep electronic records?

Of course it is important that records be kept so that they may be used in our everyday work. There are other reasons for keeping documents beyond the period in which they will be needed day to day.

For our descendants

The primary rationale for keeping electronic records is reflected in Archives Act. Where electronic records, including publications, have enduring value it is important they be preserved for future generations of Australians.

So that our democratic system of government can operate

Legislation such as the Freedom of Information Act is also relevant in this context. That Act gives citizens a right to access to documents held by government agencies, subject to certain exemptions to protect certain private interests and the public interest. It is based on the notion, now fundamental to our modern conception of democratic government in Australia, that true democracy requires that citizens be able to effectively participate in the democratic process.

As well as access to information about the workings of government and policy making which lies at the heart of democracy, there are also instances where we need to know private information about other people. For example, following a motor vehicle accident, we need access to details of the other driver and vehicle so we can claim damages. If our child is bitten by a dog, we need to know who owns the dog so that we can ensure no one else is bitten or we can claim compensation. Is the car we are buying stolen or subject to a bill of sale? Is the site on which we want to build, contaminated by dangerous chemicals? Unless this information is easily ascertained, society as we know it, cannot function.

In case they are needed in Court

From time to time records will be required to be produced in court or to an arbitrator as part of proceedings between parties in dispute. Documents comprising the record must be retrieved and made ready for delivery to the court or the other party as part of the discovery and inspection process.

In the past a ‘best evidence rule’ applied in all jurisdictions. The rule stated that the best evidence was the original document itself. Any other evidence was secondary and hearsay evidence was not admissible at all.

A ‘best evidence’ rule works quite well for hard copy paper records but does not work at all well in relation to electronic records. If all records of a business are kept on computer and an invoice, receipt or report is printed onto paper only when requested, which is the original and which is the copy? When a report is prepared by compilation of identified items from a much larger data base, is the data base the original? Will a further printout of an invoice or receipt be only secondary evidence if an earlier printout is still in existence? There may be difficulties with admissibility of these documents if they are seen to be secondary evidence.

In this area the law has now ‘moved with the times’ to facilitate electronic records. As far back as 1995 the Commonwealth Evidence Act, which now applies in most cases where Commonwealth agencies are required to provide records to a court or Tribunal, was introduced. The Act starts from the basic assumption that if evidence is relevant, it is admissible.

In relation to publications section 156 of the Act provides that a document that purports to be a copy of, or an extract from or summary of, a public document and is appropriately certified as such is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.

Under the Evidence Act, as noted above, the meaning of document is broad and includes anything from which sounds, images or writings can be reproduced with or without the aid of anything else. It is therefore possible pursuant to section 48 of the Act to prove the contents of a document by tendering, for example, a disk containing an electronic form of a document).

There is in fact a growing use of electronic documents in court cases involving large numbers of documents. In 2000 I appeared as a witness in a committal proceedings in the Tasmanian Magistrates Court. The room was full of lawyers and barristers sitting behind computers supplied by the Director of Public Prosecutions, upon which most of the thousands of documents relevant to the case could be accessed. I understand it was more economical for the DPP to make these computers available and create electronic copies of many of the documents than to produce multiple hard copies.

The key legislative requirements for retaining and preserving Commonwealth records, including electronic publications are contained in the Archives Act2

The Archives Act, the regulations made under that Act and the National Archives of Australia’s (NAA’s) disposal authorities together constitute the key legislative requirements for retaining and preserving Commonwealth records.

Essentially the Archives Act gives the NAA responsibility for conserving and preserving the archival resources of the Commonwealth, which is the first of the functions of the NAA listed in section 5 of the Archives Act. The Act applies to Commonwealth records; being those records owned by Commonwealth agencies (i.e. held by a Commonwealth agency or records to which a commonwealth agency has an immediate right of possession).

One of the other key functions of the NAA is set out in paragraph 5(2)(c):

to promote, by providing advice and other assistance to Commonwealth institutions, the keeping of current Commonwealth records in an efficient and economical manner and in a manner that will facilitate their use as part of the archival resources of the Commonwealth;

Section 24 of the Act requires Commonwealth agencies to retain all records (which, as already noted, includes electronic records) unless disposal of particular records is required by law, specifically authorised by the NAA (eg disposal authorities) or occurs as part of normal administrative practice. It is an offence under subsection 24(1) to engage in conduct resulting in the destruction or other disposal, transfer of ownership outside the Commonwealth or damage to a Commonwealth record, punishable on conviction of a fine of up to $2,200 (at present).

Agencies should of course be careful that normal administrative practice does not result in the destruction of important records which ought to be retained. If you are in any doubt about your record keeping practices, it is important that you contact the NAA. I can assure you from my own dealings with them that they will be only too happy to help, especially if you come to them early enough and before important records have not been destroyed.

The issues for records managers which can be of particular importance in relation to electronic records are that they are not inadvertently destroyed or damaged or, for instance, cannot be retrieved. For example, it is important to ensure that the technology used to store records does not become so obsolete that they can no longer be ‘read’.

It is also important that the technology used enables the record to be preserved or at least retrieved in the form in which it was actually used. For this reason, technology that allows vast numbers of electronic documents to be stored but in a way that does not allow the documents to be reproduced in their original form should not be used. I understand that the use of appropriate data storage technologies is an issue which the NAA is currently considering.

Disposal authorities

Subsection 24(2) of the Archives Act provides that a person will not be guilty of an offence if, among other things:

Many of you will be familiar with the General Disposal Authorities or GDAs which the NAA issues from time to time. The NAA also issues specific disposal authorities upon request. These have the force of law, as do formal notices issued by the NAA in accordance with the Archives Regulations indicating that the NAA disapproves of a record keeping practice.

The Electronic Transactions Act 2000

The Electronic Transactions Act is a more recent, and for Commonwealth records managers significant, example of the law playing catch-up with technology. (Similar Acts have been passed in all States and Territories).

One of the key objects of the Act is to facilitate the use of electronic transactions. To this end, in broad terms it provides that when a document is required to be produced in paper form, or ‘in writing’, that requirement can be met by producing an electronic form of the document, provided at the time it could reasonably be expected the information in the document would be readily accessible in the future. Similarly, where a document is required to be kept for a particular period in paper or material form, the requirement is taken to have been met if an electronic form of the document is retained throughout the period, provided at the time it could reasonably be expected the information in the document would be readily accessible in the future.

It should be noted that the obligations placed upon agencies under the Archives Act in relation to the preservation of existing hard copy records will continue to apply.

Concluding remarks

An important issue for electronic managers which I have not touched on in the time available is the need to preserve electronic records and publications in a manner that ensures they cannot be ‘corrupted’, or tampered with. It is most important that appropriate electronic security safeguards be put in place. If not, not only will the true public record not be available to future generations, but serious consequences may arise for agencies, particularly where documents are required to be produced in evidence in court.

In the case of electronic publications, copyright also looms large as an important issue. There is no intellectual property in ideas, only in form and expression. Copyright is breached when a work which is subject to existing copyright (including a work in electronic form) is reproduced or published without the author’s permission. When the copyrighted work is in hard copy form, it is not too difficult to make a comparison with another hard copy document to see if a breach has occurred. However this is not so easy for electronic records as electronic networks make it very easy to replicate, transmit and access information.

There are many opportunities presented by the digital age not only for creating and disseminating electronic documents but for adopting efficient and cost-effective means of preserving electronic records. It is, however, important that new technologies are capable of preserving the essential character of the electronic records as they have actually been used and viewed. The legal requirements for preservation of electronic records have now been designed to require this.

Footnotes

1 Recordkeeping, Audit Report No. 45, tabled in the Commonwealth Parliament on 1 May 2002, pp 5-6.

2 It should be noted that there are a number of pieces of legislation which require organisations to handle certain records in a particular way, such as the Tax Assessment Act which requires that records used in completion of a Tax Return must be kept for at least 4 years or the Proceeds of Crime Act 1987, section 77 of which provides that financial institutions must retain certain customer generated documents in their original form. Records managers need to be aware of these requirements to avoid breaking the law.

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