Caribbean Information & Archival

Legislation, Data protection & Privacy

DLIS LIBS 6703 Archival Concepts and Principles

November 1, 2016
Archival Legislation
The International council on Archives (ICA) has defined Legislation
as a “set of binding principles and rules stipulated through formal
mechanisms to grant power, confer rights and specify limits that
regulate the conduct and behaviour of a society”
It goes on to say that “Archives and records legislation establishes the
legal and administrative base that allocates functions, power and
responsibilities among accountable bodies within the country, and
expresses the rights and expectations of citizens with respect to
recorded information and documentary heritage.
Purposes of Archival Legislation 1
According to the Association of Commonwealth Archivists &
Records Managers (ACARM)
• “Records and archives legislation is an essential component of the
wider legislative base of accountable and effective government. It
provides the essential framework that enables a national records and
archives service to operate with authority in its dealings with other
agencies of the state.
• Provides a policy framework on the ways official records are treated –
their organization, maintenance, use and disposal.
Purposes of Archival Legislation 2

Provides the legal mandate of the institution given this authority. It

defines its powers and responsibilities e.g the role and functions of the
director or national archivist
It sets out the rules for its operation such as how it interacts with other
bodies
A national archives law provides the legal authority for an institution to
work and to provide legal status to its operations. The precise form
archives legislation takes will be guided by the political, economic,
social and cultural environment of the particular country.
Purposes of Archival Legislation 3
Provides guidelines for the types of records to be preserved.
As The International council on Archives (ICA) says, legislation “defines what
part of the collective memory of the country should be retained and
preserved”
• In a number of jurisdictions, government archives collect and preserve
records of non-governmental bodies such as corporate bodies, trade
unions, educational institutions and political organizations, and the private
papers of certain individuals. The degree of responsibility an archives has
over such records varies greatly. Archival legislation would need to confer
the power to accept such gifts or to actively seek out such records.
Purposes of Archival Legislation 4
• Provides penalties for the unlawful destruction of records.
• Archives legislation should stipulate that no public records should be
transferred, migrated, altered, deleted or destroyed without the
consent of the Archives. The respective roles of the Archives and
government departments in appraisal and appropriate disposal of
records should be defined and the ultimate authority specified
Purposes of Archival Legislation 5

Indicates the conditions under which the records could be made

available to researchers

Archival legislation provides access to records, subject to prescribed

conditions and exemptions for the protection of privacy and copyright.
Restrictions to record access should not be forever.
Purposes of Archival Legislation 6
Gives the Archives legal authority to provide guidance to record
keeping practices within the public sector of a country
Archives legislation should direct the National Archives to develop,
approve and review advisory and mandatory standards and regulations
for adequate and accurate recordkeeping in departments and agencies,
and audit their management of records from creation to ultimate
disposition against mandatory requirements to ensure authenticity,
integrity and usability.
Caribbean Archival Legislation

• Caribbean Archival Legislation

• Although Jamaica was the first country in the English Speaking
Caribbean to establish an archival organization and to appoint an
archivist, it was not the first country to pass an archives act.

That pride of place goes to the Bahamas which passed its Public
Records Act( No. 26 1971)
http://laws.bahamas.gov.bs/cms/images/LEGISLATION/PRINCIPAL/197
1/1971-0026/PublicRecordsAct_1.pdf
The Jamaica Archives Act

• This was passed in 1982 and the Regulations in 1988.

http://moj.gov.jm/sites/default/files/laws/The%20Archives%20Act.pdf
• The Act established the Jamaica as a department in its own right. Prior to that it
had operated – since its establishment in 1955 – as a section of the Island
Records Office and under that Office’s Act of 1979. That act was modeled on the
1838 Act in England which had established that country’s Public Records Office.

The Jamaica Act is now in urgent need of revision to take into account
new developments such as Access to Information legislation and Records
Management.
 LEGAL BASIS
The Jamaica Archives and
Records Department
operates under the
ARCHIVES ACT, 1982 and
the ARCHIVES
REGULATIONS, 1988
Mission of the Jamaica Archives
►Jamaica Archives and Records Department exists to ensure the
efficient and effective management of official records/information,
at all stages of the life cycle and to preserve those official and other
archival records for current and future use, by the government and
the citizens of Jamaica, in order to strengthen national development
THE ARCHIVES ACT & REGULATIONS

►The Archives Act provides for the establishment of

the Jamaica Archives and Records Department and
also the legal basis for the establishment and
maintenance of Records Management in the Public
Sector
 OFFICIAL RECORDS ARE:
“All papers, documents, records, registers, printed material,
maps, plans, drawings, photographs, microfilms,
cinematograph films and sound recordings of any kind
whatever, officially received or produced by any public
organization for the conduct of its affairs or by any officer or
employee of a public organization in the course of his duties”.
Archives are:

“official records no longer in current use

and adjudged by the Committee to be
worthy of permanent preservation in
the Jamaica Archives for reference and
historical purposes” Section 2, Archives
Act
Authority to dispose of records in
Jamaica rests with the Jamaica
Archives and Records Department
and it is governed by the Archives
Act of 1982.
“ No official record shall be
disposed of without the prior
approval of the Committee”.
Regulations Section 5
Archives Act & Regulations
►The head of each organization in accordance with the
advice of the Archivist has the authority to ESTABLISH
AND MAINTAIN A SYSTEM FOR THE PROPER CARE AND
CONTROL OF OFFICIAL RECORDS WITHIN HIS CUSTODY’.
Regulations, Section 3(1)
Archives Act & Regulations
►The System to be established should --
►Make provision for the standards, procedures and
techniques to be applied for the management of
official records;
►Promote the maintenance , storage and security of
official records selected for preservation as archives
until they are transferred to the Jamaica Archives;
►Provide a programme for the disposition of official
records. Regulations Section 3(2)
Archives Act & Regulations
►The Government Archivist, or any officer of the Jamaica Archives
authorized by him has the Authority to
“examine Any Official Records which are in the Custody of Any
Public Organization and to Advise such Organization as to the Care,
Custody and Control Therefore”
Archives Act Section 7(1)
Challenges of Records Management
• Many of the archival laws passed in the 1970’s and 80’s did
not make proper provision for records management, which
has achieved great importance in recent years. The
management of electronic records has emerged as a major
issue for governments and record managers. Archive
legislation needs to provide adequately for such records and
outline how to deal with electronic records creation,
accessibility and disposal. As a result in many countries
revisions have been made to archival laws to allow for these
new developments
Freedom of Information/Access to Information
• Archival institutions have been greatly affected by the upsurge in
freedom of information legislation in countries over the past two
decades This growing trend has coincided with governmental efforts
to achieve modernization and move towards openness, transparency,
and accountability as well as encourage the participation of citizens in
decision–making.
Freedom of/Access to Information
• in 2012 there were 93 countries recorded as having passed access
legislation as compared to 68 in 2006. Eight (8) Caribbean countries
which have passed Freedom of or Access to information laws, and
four which have bills or draft legislation under discussion (2013).
Access to Information Act
►Act grants to the public a general right of access to official
documents held by
public authorities, subject to exemptions which balance that right
against the public interest in exempting from disclosure
governmental, commercial or personal information of a sensitive
nature
Section 2 (c)
 Access to Information Act
• This type of legislation is revolutionary as it affects archival
establishments as it abolishes the “50 year” and later “30 year”
closed periods for records which were features of all archival
legislation. The laws all provide for a general right by citizens,
residents and sometimes even non–residents to demand information
on the activities of governments as reflected in official records.
Conditions for withholding critical information, appeals processes and
procedures for oversight are included in most national legislation.
 Access to Information Act
In Jamaica, the Jamaica Archives & Records Department was very
involved in the drafting of the legislation and later its
implementation. Why was this so?

According to the Government Archivist at the time ………..

Involvement of Ja Archives in ATI Legislation
• . “Under the Archives Act of 1982, the Jamaica Archives and Records
Department is responsible for advising government entities on the
organization and protection of their records, so the Department had a
vital stake in the legislation. At the time the Department through the
Government Records Centre was promoting the concept of records
management and it quickly realized that the pending new law could
provide the necessary incentive for government entities to treat the
subject of records management seriously”
Access to Information Act
►The Act applies to
all public authorities
-official documents created by or held by a public authority not
earlier than - thirty years immediately preceding the
appointed day
Access to Information Act
►Exempt Documents are those which
• are Cabinet Documents
• affect security, defence or international relations
• -relate to law enforcement
• -are subject to legal privilege
• affect the national economy
• -reveals Government’s deliberative process
ATI Act - Offences
►A person commits an offence, if in relation to an
official document to which a right of access is
conferred under this Act he –
►- alters or defaces
►- blocks or erases
►- destroys
►- conceals
►the document with the intention of preventing its
disclosure Section 34
 Privacy
• Closely associated with the matter of access to materials is the whole
question of confidentiality and privacy of personal information.
Rapid developments in technology have resulted in numerous ways in
which information about persons is not only collected, but easily
available on the inter It was reported that “in 2013, nearly 58 million
records were reported compromised in the United States according to
the Identity Theft Resource Center. With increased collection of data
and easier methods of collection, protecting personal information has
become a big issue in today’s business and government environment”
 Importance aia
“So the whole purpose of the Act is to improve accountability, public participation and transparency within
government so that members of the public who have general right of legal access to official documents, can hold
their government accountable for how they perform and spend taxpayers’ money,” he added.
“The Act is important because it [enables] citizens to know exactly what the Government is doing and to access
official documents, verify decisions on matters of social and national interest, as also matters that concern the
finances of the country, health and environment,” he said during a Jamaica Information Service (JIS) Think Tank at
the agency’s head office in Kingston on December 19.
Privacy
• A number of countries have passed legislation re privacy as this type
of legislation is closely associated with Freedom of information and
data protection laws. Safeguarding personal information of
individuals is not only a legal issue but an ethical one as well
Privacy
• Dr Cherri-Ann Beckles, Assistant Archivist at the West Indian Federal
Archives at the Cave Hill Campus of the University of the West Indies
is a leading authority on privacy as it relates to the information
profession. She says that
• “Records and information management professionals have a key role
to play in safeguarding the privacy of personal information. The
challenge is keeping up with rapidly changing, intrusive technologies
and in step with legislations which often lag behind them”
 Privacy
She goes on to say that “RIM practitioners must be aware of which
records contain sensitive personal data, which the UK Data Protection
Act of 1998 defines as “personal data consisting of information about
the racial or ethnic origin of the ‘data subject,’ his political opinion, his
religious beliefs or beliefs of a similar nature, whether he is a member of
a trade union, his physical or mental health or condition, his sexual
health”.

• Cherri-Ann Beckles, “An International Perspective on Protecting Personal

Information” in Information Management Vol. 48 # 2 March/April 2014, p 33
thttp://imm.arma.org/publication/frame.php?i=199868&p=34&pn=&ver=flex