National Archives (Amendment) Bill 2017: Discussion

We will consider the National Archives (Amendment) Bill 2017 and the current implementation of the National Archives (Amendment) Act 1986 with the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs, Deputy Heather Humphreys, and the officials from her Department. I hope everyone is keeping well. I welcome to the meeting the Minister, Deputy Heather Humphreys, the Minister of State, Deputy Michael Ring, Ms Katherine Licken, Mr. John McDonough, director of the National Archives, Ms Sharon Barry, assistant principal officer, and Mr. Tadhg O'Shea, higher executive officer, in the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs. Tá fáilte romhaibh go léir.

I draw witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. However, if they are directed by it to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Any opening statement or other document submitted to the committee may be published on its website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. I call the Minister, Deputy Humphreys, to address the committee.

I thank the committee for the invitation to address it today on the National Archives (Amendment) Bill. I just want to say that we have been here since 2.15 p.m. and it is planned that we will leave around 4.30 p.m. That was the anticipated time as I believe other officials will come in at that stage.

This proposed legislation will provide the flexibility for certain Departments to transfer records to the National Archives for public release after 20 years rather than the current 30 years.

As the committee may be aware, the British and Northern Irish Archives have moved to a 20-year rule for the transfer of records to the British Archives and the Public Records Office of Northern Ireland, PRONI. However, in Ireland, the statutory period for transfer of departmental records remains at 30 years.

The Government recognises the importance of synchronising the release of certain records between Ireland and the United Kingdom, particularly in regard to those records relating to Northern Ireland and Anglo-Irish issues.

The proposed legislation will allow for the early release of records if the relevant Minister and the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs are satisfied that it is warranted by virtue of the historical or public interest value of the records or to facilitate fair reporting of matters of common interest to the State and other jurisdictions.

I am conscious of the fact the proposals will have resource implications for Departments which would have to be managed within existing budgetary allocations.

For this reason, the change will be implemented on a phased basis, starting with Departments and offices that have holdings with significant numbers of Anglo-Irish and North-South records, namely, the Departments of the Taoiseach, Foreign Affairs and Trade and Justice and Equality, and the Office of the Attorney General. The intention is to move to a full 20-year rule for all Departments over time as resources permit. That is not possible at present, however, due to the capacity constraints at the National Archives and the significant resources which would be required. A phased implementation approach will assist in terms of the inevitable resource implications for Departments while providing flexibility for the early release of records where appropriate.

I am aware that many Departments are not fully compliant with the current 30-year rule. As part of the process of implementing the 20-year rule, I will write to all Departments to ascertain how many files that are over 30 years old are currently being stored by Departments, offices and the courts, and the cost of this storage. Savings could be made across the entire system if the need for offsite storage were reduced. I am also aware of the limited physical capacity which the National Archives has to store our archives. I have allocated €8 million to develop the National Archives in this regard. In due course, I will make proposals to deal with the current backlog of records in Departments that are more than 30 years old. The lack of a records management policy for digital records is also an issue. I was pleased to be in a position to provide the National Archives with €150,000 in 2016 and €300,000 in 2017 to assist in the work on digital records and a public sector records management policy that is being undertaken by the Office of the Government Chief Information Officer in the Department of Public Expenditure and Reform in conjunction with the National Archives. This policy aims to provide universal guidelines for the public sector on the management of born-digital material. Crucially, it will scope out the requirements of the National Archives in starting to accept digital records from Departments and the task of making digital records available to the public.

Gabhaim buíochas leis an Aire. An bhfuil ceist ag an Seanadóir Warfield?

I thank the Minister for her presentation. She has said that "the proposed legislation will allow for the early release of records if the relevant Minister and the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs are satisfied that it is warranted by virtue of the historical or public interest value" of those records. Is that a new addition to the Bill? Is it not covered by section 8(1) of the National Archives Act 1986? Is the suggestion that these records should not be released unless the Minister is satisfied their release is warranted by their "historical or public interest value" a new provision? I will explain my concern. Who is anyone in government or in the State to say what is of "public interest value"? I wonder whether this is a new addition to the Bill. It would concern me if it is.

I am slightly concerned that allocations for the National Archives could not be increased to offer the resources needed in the context of this good move and this welcome Bill. I have spoken separately to representatives of the National Library who have called on Members of the Oireachtas to provide for a digital deposit that would allow digital materials to be archived. Will that form part of the copyright Bill that is due to come before the Oireachtas?

I ask the Minister to provide more details on the €8 million that is to be spent on developing the National Archives. Trinity College, UCD, the National Archives and the National Library, which has State responsibility for archiving, have argued that we need a greenfield site. It strikes me that we need a long-term and future-proofed archive location that is well fitted out. This would ensure the bodies that are statutorily obliged to deal with archiving can do so and everyone can have easy access to the materials of the State. I would like the Minister to respond to my questions.

The Senator has rightly pointed out that an addition is being made to the Bill. I decided to make this change, after giving careful consideration to the move to a 20-year rule, because I am of the opinion that notwithstanding the significant resourcing issues involved, it is important to provide for the early release of records of significant historical or public interest value. We are trying to provide for some flexibility in how material of significant value is made available. In particular, we want to focus on material of North-South interest after 20 years. The UK and Northern Ireland are releasing their material after 20 years. We do not want to be left on the back foot. We need to release similar material from our records so that the full picture is reflected. That is why a new provision is to be included in the Bill. We do not have the resources to change immediately from 30 years to 20 years. This is a massive undertaking. We want to deal specifically with the Departments and offices where most of these records are held, namely, the Departments of Justice and Equality, Foreign Affairs and Trade and the Taoiseach, and the Office of the Attorney General. We are doing this to make sure we are not left behind in matching the material that is released in the UK after 20 years.

We have given a commitment to invest €8 million to improve the storage facilities in the National Archives. I understand the plan should be ready to go to tender towards the end of the year. It is a big undertaking and it is important that we get it right. It is a question of how a big warehouse at the back of the National Archives can be married into the existing building. We need to maximise the space available at the archives.

Under the Creative Ireland plan, we have asked all the cultural institutions to come forward with their capital plans for the coming years. We want them to reflect on what they need to do and to propose five-year plans for how we can support them as we go forward. The wonderful renovation programme in the National Gallery is almost complete and will open to the public soon. It has taken a number of years for this fabulous development to reach an end. We are working with the cultural institutions by looking at their plans and ambitions in the context of the capital plan.

An bhfuil ceist eile ag an Seanadóir?

This is a great Bill. It is great that material will be released after 20 years rather than 30 years. We seem to be reacting to Britain and the North in order to harmonise with them rather than doing this for the positive good. Ideally, this would be done over a shorter period of time. The Department should not be placing a value on certain records rather than others. A 20-year timeframe should be the norm for all information coming out of the Department.

Okay. Glaoim ar an Teachta Ó Cuív.

I assume the Minister thought this would go through on the nod.

I would never assume that.

I started raising questions because there is nothing I hate more than legislation that is not adhered to. The Minister said she is "aware that many Departments are not fully compliant with the current 30-year rule". We are moving to a 20-year rule now even though the law as it stands under the 30-year rule is not being implemented.

I understand the Department occasionally has been laggardly in getting its records in on time. With various legislative measures passed by the Houses, enforcement is less than optimum. The more we pass legislation that places impossible expectations on people, the less respect there will be for the law, as more people will disobey it and we will be chasing the game all of the time. I would rather that we pass a little less and obey it than pass much more and have people not bothering with it or the Oireachtas. Maybe the Minister will focus on the question of whether there should be a sanction on Departments that do not comply with the law.

Out of curiosity, is every record of everything that is done given to the National Archives or is there a distillation? With the invention of e-mail, I imagine that files are getting thicker quicker.

If we continue in this way, we will need a great deal of storage. The €8 million will not even be a drop in the ocean. Five hundred years ago, people wrote by hand. Then they started printing, and we thought we were great when we got electric typewriters. Now, 50 versions of a document can be created in a word processor. There are certain ways of avoiding all of that, but that is secret knowledge of Secretaries General. Are we keeping everything and how will it be managed physically? Switching the timeframe to 20 years will add a further ten years. In the past ten years, we have probably produced as much material - I do not know if the Minister has statistics on this - as was produced from the 1920s to the 1950s. I imagine that, since word processors became common and the Internet became even more common, the growth in archives has been exponential. Is there a plan in place to make this law work or will we be just congratulating ourselves on passing another law even though nothing will happen because the law is unrealistic?

We are putting together a public service records management project. The Deputy is right, in that there is a large amount of material. This is a matter of deciding what we need to keep. I understand that, currently, everyone is keeping everything. We are undertaking a pilot study with four Departments.

Does the Minister's Department get records from every Department's HR section-----

We do not get them. The archives do.

Do they get everything from every Department?

Mr. John McDonough

No.

We are trying to-----

What does the law state?

Through the Chair, please, Deputy. Would Mr. McDonough like to address that question briefly?

Mr. John McDonough

The National Archives do not take every record created by every Department. The National Archives Act allows Departments to identify particular records that merit long-term archiving or preservation by the National Archives. A Department or body can apply for a disposal order to destroy records that do not merit long-term preservation. Broadly speaking, 20% of a Department's output ends up in the archives.

My understanding of the problem is that Departments are holding onto all of their records because they do not have clear policies on what they need to keep, particularly given the increasing number of digital records. There is an expense in keeping records. The public service records management project will allow us to have a policy so that people will know what they must keep. We provided €300,000 to the National Archives to develop electronic and paper guidelines as part of the project. Guidelines will issue to Departments, making it clear what they must keep.

This Bill is being progressed to provide Departments the flexibility to release certain classes of records earlier than the standard 30 years if they feel the historical or public interest value of the records warrants early release.

What about those Departments that do not even comply with the 30-year rule?

That is what the public service records management project is about. We will give directions to public bodies to reduce their spending on offsite records storage and we will produce a framework by which public service bodies can implement electronic systems. The long-term plan is to develop the public service's records management capacity, especially as regards electronic records, and the capability of the National Archives to assess and preserve digital records.

As we all know, we have come through difficult times in the economy. Resources have been tight and people have had to prioritise. The situation is improving, though. The unemployment figure is down to 6.6% and more money is coming into the Exchequer. Therefore, it is time to put a stronger focus on this. There needs to be clarity regarding electronic records. At a personal level, people put photographs on discs, for example, and are not as careful as they should be. Sometimes, it is hard to beat a paper copy. We must focus on this matter more and I will raise the issue with the other Departments.

When I first entered the House, if a Department had a statutory duty, great cognisance was had of that and it was done. Over time, there has been an erosion of people's respect for statutory duties. When computer systems were being introduced, a wise person told me that, if I had a paper accounting system that was in a mess, all that the computer would do would be to multiply the mess. If someone does not comply with the 30-year rule and management issues new guidelines, the time taken will double because he or she will start looking through records to see what the guidelines apply to and find ways of not complying with the law.

I am not satisfied that I have received an answer today as to what will be done to ensure that "30 years" is "30 years". Regardless of whether the National Archives approve a disposal or lodging order, the time is supposed to be 30 years to the day. Until we get compliance with that - I am referring to the legislation's wider provision under which the timeframe will go to 20 years rather than the narrower provision of certain documents being picked - Departments will be more in breach than in compliance, given the explosion in the number of documents that will need to be sifted through to decide whether they are "In" or "Out". I do not like laws that are not observed.

Once the first phase of the 20-year rule is finalised, the Department will move to survey all other Departments' record holdings of more than 30 years of age with a view to scoping what is needed to eliminate backlogs in transferring such records to the National Archives. Lack of compliance has been a function of the reduced resources of the past ten years. We must build capacity. The records management plan will help in that regard and place a renewed focus on the issue raised by the Deputy, in that Departments will have to comply with these rules.

I am sorry, Minister-----

I have a final question.

No. We have gone over time. We are sticking to the schedule. I call Senator O'Donnell.

If the lack of resources meant we could not comply with the law, the law must be changed.

I must ask the Deputy to desist.

We cannot have people ignoring the law.

As a member of the committee, I apologise for the Minister having to stand outside for so long. I had no idea that was happening.

I welcome the Bill and thank the Minister. I read a great book by Mr. Neil Postman in which he discussed information and how our main problem now was how to store it. That is effectively what the committee is debating. The Bill tries to come to terms with the issue. I had a question, but I will leave it, as I had no idea the Minister had been standing outside for three quarters of an hour. Were I her, I would be raging.

I will ask a few questions.

Obviously, it is to be welcomed that the public will have access to these documents on a timelier basis. An Teachta Ó Cuív put an interesting question. Will the criteria for the types of documents to be kept and the types of documents to be put into the National Archives be detailed in the Bill? Will that be the decision of a Minister or of a Department or where will the decision be made?

That is where the records management project comes in. The guidelines will be done in conjunction with the National Archives. The Departments must find out how much is there and how much needs to be kept. They will have guidelines to work from. Then it will be referred to the National Archives, which can then decide what needs to be retained. They must get approval from the National Archives as to what goes into storage. I believe that about 80% of the documents can be disposed of. That is a real problem at the moment. Departments are storing mountains of documents and the chances are that they will not need to keep more than 20% of them.

However, we need to have the policy in place in order that the staff will be clear about what needs to be kept and what does not need to be kept. A smaller amount of material will then be presented to the National Archives, which will go through it as a final check.

Obviously, certain records and documents are pivotally important for us in understanding what happened in the past. They are also important for individuals in respect of how they were treated by the State in the past. Is the Minister saying those criteria will not come before Deputies again and that it will be the decision of a Minister and the National Archives?

No. A plan will be developed by the Department of Public Expenditure and Reform in co-operation with the National Archives. The plan aims to assist in the establishment of a coherent and consistent approach to records management within the public service. There will be a clear plan to deliver the policies, guidelines, structures and systems to achieve the objectives. There will be guidelines for staff in various Departments. The criteria to be set will include items of significant historical or public interest and will aim to facilitate balance and fair reporting on issues common with other jurisdictions and, where the resources are available, to facilitate the records' early release. They will also have guidelines on what needs to be kept and what can be let go. That is what is important.

The Minister mentioned the Departments that will have more work to do will not get extra funding.

I do not have the power to compel any Department to comply with this. That is not my job; I cannot do that. Each Department is responsible for its own records. Obviously, we have come through a difficult economic time and I can understand why there was pressure on resources. Everything has been held. It is not the case that it just built up.

It is a zero-sum situation. If a Department has a particular budget and then has more work to do in one element of it, obviously then some other element of that Department's responsibility will be cut to a certain extent.

It is up to every Department to work that out.

There are also extra costs to the National Archives. I know there is an €8 million capital plan, which we commend. I imagine the National Archives will have extra costs in processing this. Will that element receive extra funding?

It got funding this year of €300,000 and funding of well over €100,000 was allocated last year. That is to prepare-----

That is extra funding.

Yes. Four additional archivists have been employed in the National Archives.

What is the level of non-compliance among Departments? Which Departments are the greatest sinners in this? Is there radical non-compliance of, for example, over 10% of the documents that are more than 30 years old not having gone through this process yet or are the figures marginal?

I have written to all Departments asking them to outline the present position.

Will we be able to get that information?

Very good. That will be very interesting.

I understand it varies, but we can provide the committee with the information when it is sent to me.

I asked a question about the copyright Bill. I know we are not discussing it, but we are discussing the future storage of digital information. There is no scope in the 2016 Bill to enable the National Library to collect digital material in any meaningful way. The suggestion is that it would be possible to scope and capture the entire .ie domain because most websites just disappear after a short period of time. Year by year we are losing information and potential for researchers down the line. It would be great to have that amendment to the copyright Bill, as proposed by the National Library. I would like the Department to introduce it - we could do it also.

Digital copyright is a matter for the Department of Jobs, Enterprise and Innovation. The National Library has a statutory mandate to collect born-digital material. My Department is working with the library and will shortly carry out a public consultation on legal digital deposit. As the Senator knows, we have provided €10 million to the National Library to update its storage facilities, which need work.

That concludes the consideration of the topic. I thank the Minister, the Minister of State and their officials for their assistance in the consideration of the issue.

We will suspend briefly to allow the officials to change over. We have one further issue to discuss with the Minister and that is the issue of viable rural communities.

Sitting suspended at 3.37 p.m. and resumed at 3.42 p.m.