More On PATI – The 30 Year Rule

I have done a little more research into the PATI legislation, and I have come across a few things that may be of interest. In particular I see that my criticism of the ’30-year rule’ for Cabinet documents, and my hope to see it reduced to at least half of that, was actually in line with an UK Independent Review of the UK system. The background to this review can be found here, as can the actual document itself. A briefer report in the Guardian is also available for those who want a quick summary of its findings. Also, the document itself, which is a pdf, contains what could be described as a policy summary of its reccomendations (p.44-45), complete with section references, which makes for a handy reveiw of the report.

Skimming through the final report I came across a few passages that I thought were worthy of reproducing here.

In the introduction to the report, the Chair of the review concludes with this passage which is especially aplicable four Bermuda:

I would only add that, in my own case, what tipped the balance for a robust reduction was the hope that this might make a small but significant contribution to a more mature democracy in which there is a greater trust between the electors and the elected. Indeed, if there has been a corrosion of that trust between politicians and people over the past few years – and my belief is that there has been – our recommendations might, in the longer term, go a little way to restoring it. Certainly, the possibility that my own sons will have greater opportunities to understand the working and thinking of the governments they elect, will, I believe, make them more responsible citizens. Such openness might even result in better governance.

It also gives an interesting account of the origins behind the 30-year rule and changes from the previous 50-year rule, as well as a summary of the UK FoI Act which came into power in 2005. Of this it says:

2.18 In 1997, Tony Blair’s newly-elected government announced its intention to introduce an FoI Bill, which would establish a new public right: to request information from any official record, whatever its age. The FoI Act came into effect in 2005, and it effectively turned the existing arrangement on its head. Before the FoI Act came into force, official records were presumed closed until they were at least 30 years old and had been transferred to the National Archives. Under FoI, such information is presumed open from the time it is created, and long before it is transferred to the National Archives, and it must be made available unless specific exemption criteria apply.

This passage concurs with pretty much every other peice of legislation (mostly the Scottish, Irish and New Zealand ones) that I have skimmed, in that the access to information is retrospective, while the current draft Bermuda legislation seems confused on this point. Chapter Three, ‘International Comparisons’, provides a handy comparative review of similar legislation throughout the world and is well worth skimming through. Of particular note for me where the reflections on the US system (where for example Presidential records can be accessed after five to twelve years) and the New Zealand system where Cabinet papers are often accessible immediately. Although, as the document immediately indicates, often these Cabinet documents are ‘smoothed off’ in the knowledge that they will be realeased, and there are loopholes to the legislation.

In addition to its explicit review of the 30-year rule, the document also makes some arguments that could also be applicable to Bermuda in their Chapter Eight – Other Relevant Issues. In particular I think we should look at their proposal that:

8.4 We recommend that the government revisit the Civil Service Code to see whether it needs an amendment to include an explicit injunction to keep full, accurate and impartial records of government business.

As well as:

8.10 We recommend that the government confirm that special advisers’ non-political records are not exempt from the Public Records Act and the FoI Act; that as temporary civil servants they, too, are under a duty to keep a full record of their deeds and doings; and that any misunderstanding about these matters on the part of ministers, departments or special advisers is removed.

I read with particular interest the section on ‘The Digital Challenge’, and will have to go back and look at the draft PATI legislation to see if I need to comment on that.

I am still confused by the wording of the draft PATI legislation. If it is to apply only to information recorded after the legislation is passed, then yeah, I have a huge issue with that. It may certainly be better than nothing, and ensure that we have more accountable governance in the future, it will leave a collective suspicion that the current government is trying to ‘cover-up’ information relating to its recent past. Ultimately, for me, that needs cleared up. Nonetheless, I remain opposed to the 30-year rule application relating to Cabinet documents as stated in the draft, and believe that this Review of the UK legislation has some application for Bermuda. It makes sense to me to include these reccomendations into the legislation now rather than have to tinker with it in the future in order to bring it in line with international standards.

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