Path of Democracy welcomes the opportunity to comment on the reform of the current public records management and access to information (ATI) regimes. We support the introduction of laws on archives and ATI, which constitute the enabling legal environment for the government’s transparency and accountability agenda. They also complement the open data initiative advocated in CE’s first policy address which called for support for technology research, innovation and smart city development. We would like to express our views on i) governance, ii) compliance and iii) exemptions, coverage and restrictions for considerations by the Archives Law and Access to Information Sub-Committees.

1. Governance

Setting up an independent advisory body on public records management

With reference to foreign jurisdictions, an external body can enhance public confidence in the public records management system and strengthen the archival authority in carrying out its missions. We recommend the setting up of an independent body to advise the Director of Administration on matters relevant to government records in Hong Kong. Members may include judges, historians, archivists, information management professionals, librarians, former civil servants and journalists. Its duties may range from:

• Providing and reviewing the framework of government records management;
• Considering closure and retention requests from public bodies after vetted by the GRS;
• Carrying out a public interest test when a request of access to information regarding closed archives is filed; and
• Preparing an annual report to the Director of Administration.

To consolidate efforts in constructing a hybrid records management environment, the advisory body will give advice on the establishment and prescription of recordkeeping requirements for both physical and electronic records. In view of the slow implementation of an electronic records strategy in Hong Kong, the advisory body may consider the Ombudsman’s recommendation to map out the timelines for a service-wide implementation.

The advisory body will scrutinise applications for the closure and retention of records on the basis of public benefit with a wide diversity of experience within its membership. To reduce the scale of work, the GRS may vet summaries prepared by applicants before tabling to the advisory body. While the advisory body advises the Director of Administration and does not make final decision as to whether a record should remain closed or be retained, it may challenge public bodies to provide evidence to justify such requests.

In jurisdictions studied in the consultation paper, most archival authorities or their advisory bodies have the power to examine or determine the access status of exempt information. Under Hong Kong’s current arrangements, when a request of access to a closed record is filed, a public interest test will be conducted by the B/D which owns the record. This public interest test may be carried out by the proposed advisory body independently and impartially.

Conferring a suitable statutory body power to perform ATI functions

To promote and protect ATI, the new law should be overseen by an independent body with enforcement powers. Although some jurisdictions, such as Ireland and the federal government of Canada, have created a specialized body to oversee the right to information, we agree that establishing a new office of information commissioner is cost-ineffective in Hong Kong. In New Zealand, the oversight is given to the Ombudsman. Examples in other jurisdictions are that the freedom to information law and privacy law are enforced by the same agency to better balance the rights and manage conflicts, which is the case for Australia, UK and many provinces of Canada.

Despite the number of refused requests for information is very small, we are aware that third party information and privacy of the individual are the most common grounds for access denial. As per the latest available figures, they together contributed about half of the reasons for refusal cases in the first half of 2018.[1] Therefore, we recommend that a suitable statutory body should be given the power to adjudicate complaints about data protection while at the same time facilitate the free flow of information. The statutory body will perform the following ATI functions:

• Reviewing ATI decisions of public bodies and handling complaints against non-compliance with the ATI law;
• Overseeing the proactive disclosure logs of public bodies to publish information on a routine basis;
• Providing guidelines on the operation of the ATI law, such as the appropriate performance standards, resource ceiling and the charging of fees;
• Serving decision and enforcement notices requiring public bodies to take steps to comply with the ATI requirements;
• Monitoring, investigating and reporting on compliance by public bodies; and
• Issuing directions when the third party affected in an information request is not able to make representations.

Rehearing in the Court

We recommend an appeal mechanism involving the judiciary for both access to archival records and requests for information. When complaints against decisions by the Director of Administration on archives or the statutory body on ATI cannot be dealt with, complainants can appeal by way of rehearing in the court.

Upgrading the post of GRS Director

The GRS should occupy a more prominent role at the Chief Secretary’s Office since innovation, better governance and Government’s openness are involved. In view of the expanding and increasingly complex workload of the GRS after the legislation of the archives law, the GRS Director should have the appropriate ranking to reflect the adequate level of responsibility. We propose to upgrade the post of GRS Director from grade D1 to a minimum of grade D3.

2. Compliance

Improving the mandatory recordkeeping requirements

The mandatory recordkeeping requirements in GC09 are binding upon government servants, but the Audit Commission has also found that there is a lack of clear obligation on B/Ds to create records. The current administrative regime does not contain any provision in relation to compulsory records creation. To fill up the deficiency, we recommend that records creation to be made obligatory through administrative rule. This puts B/Ds under an obligation to create records and helps avoiding the absence of documentation, which was a problem identified during the investigation of the Lamma ferry tragedy.

Legislating for the whole life cycle of records management

As coverage of the archives law may extend to non-government servants, administrative regulations alone are not sufficient to establish an effective records system. The archives law should have provisions on the whole life cycle of records management from creation, storage, disposal to preservation, as well as sanctions for violation of the law.

While penalization is essential to ensure compliance, the evidence required for verification may have been destroyed when questions are called in. Therefore, the archives law in Hong Kong should provide the GRS a power to inspect records and audit records management practices to monitor compliance by public bodies.

Criminalization of unauthorized damage

The criminalization of unauthorised alteration, concealment, removal or destruction of records is a common element in Australia, Canada, England, Ireland, New Zealand and Singapore. The maximum penalty is 20 penalty units (i.e. 4,200 AUD equivalent to 23,000 HKD) in Australia, 10,000 CAD (equivalent to 59,000 HKD) in Canada, level 5 (i.e. 5,000 GBP, equivalent to 52,000 HKD) in England, 12,500 EUR (equivalent to 112,000 HKD) in Ireland, 5,000 NZD (equivalent to 27,000 HKD) in New Zealand and 5,000 SGD (equivalent to 29,000 HKD) in Singapore.[2] In addition to the fine, a convicted person is also liable to an imprisonment for a term not exceeding 2 years in Canada and Ireland and 1 year in Singapore. It must be noted that in England, a person is found guilty only with the intention to prevent disclosure. Other jurisdictions do not impose such a condition. We recommend a fine not exceeding 30,000 HKD and imprisonment not exceeding 12 months against unauthorised damage to records, including alternation, concealment, removal and destruction.

3. Exemptions, Coverage and Restrictions

Reducing exempting provisions

We recommend a wider right of access to information. The legitimate exemptions of information disclosure should be granted on the basis of national security and public interest only.

• National security: information the disclosure of which would harm or prejudice national and Hong Kong’s security, or impair the conduct of external affairs between Hong Kong and other governments;
• Public interest: information the disclosure of which would have a substantial adverse effect on the government’s ability to manage the economy or the running of administrations in Hong Kong;

Extending coverage

Public organisations are outside of the formal coverage of the existing administrative regime of records management and the Code on Access to Information. We note that the definition of public bodies varies from jurisdiction to jurisdiction, so as the coverage of archives laws and freedom to information laws. However, a shared practice is that the application of these laws will extend beyond government departments. Under the recent trend of the diffusion of public power, there have been calls for an even wider coverage to oversee quasi-government organizations, government-owned corporations and other private bodies which exercise public functions and document government actions.

The Ombudsman Ordinance and Prevention of Bribery Ordinance specify their own lists of applicable public bodies with periodic review. This “bespoke” approach can be adopted for the archives law. Their lists are unidentical because additions or exclusions are subject to specific considerations under the Ordinances. These considerations are often different from the archival purposes as to preserve heritage, enhance accountability and enable good governance, as well as the right to information which underlies transparency and openness. Therefore, we recommend dedicated lists of oversight under the laws on archives and ATI.

As for operational concerns, we understand that a blanket expansion is unrealistic given public bodies’ readiness and willingness. For the archives law, it is advised that it should cover the existing administrative regime upon enactment, i.e. all B/Ds, the Independent Commission Against Corruption and Hong Kong Monetary Authority. For the ATI law, it should cover all organisations which are currently applying or voluntarily adopting the Code on ATI at the initial stage. The proposed advisory body on public records management and the statutory body on ATI may review the extent of oversight from time to time and make recommendations about bringing new public bodies under purview on a gradual basis.

Shortening the restriction for public viewing and duration of exemptions

After Ireland’s reduction of public viewing restriction from 30 to 20 years, Hong Kong has the strictest regime compared with the jurisdictions studied in the consultation paper. We recommend shortening the deadline of transfer of time-expired records to the GRS for open access from 30 to 20 years. The duration of exempt information should be set in line with this time limit for public inspection. Considering the extra resources required, a phased approach over a ten-year transition can be adopted as were England in 2013 and Ireland in 2018.

 

Path of Democracy

March 2019

[1] “Statistics of refusal cases with breakdown by specific exemptions and by the handling departments,” retrieved from https://www.access.gov.hk/en/statistics/info_req_bds.html.

[2] S 24 Australia’s Archives Act 1983; S67 Canada’s Access to Information Act 1985; S 77 of UK’s Freedom of Information Act 2000; S 18 of Ireland’s National Archives Act 1986 and Euro Changeover (Amounts) Act 2001; S 62 of New Zealand’s Public Records Act 2005; S 14(H) of Singapore’s National Library Board Act.