The Ellison Review and records management

Failings in records management hampered the Ellison Review. In the absence of legal enforcement mechanisms, we should recognise the important of records managers

It is a truism that good records management is essential to good information rights practice. Section 46 of the Freedom of Information Act 2000 requires the Lord Chancellor to issue a records management code of practice, and the code itself says

Freedom of information legislation is only as good as the quality of the records and other information to which it provides access. Access rights are of limited value if information cannot be found when requested or, when found, cannot be relied upon as authoritative

Similarly, records management is embedded in the principles of Schedule One to the Data Protection Act 1998, particularly those relating to adequacy, accuracy and retention of personal data.

But Mark Ellison QC’s report following The Stephen Lawrence Independent Review throws even sharper focus on how important records management can be in the service of justice, and the rule of law. Ellison’s Review was not a statutory inquiry, and thus did not have the legal powers to search records, or compel production of information (although its terms of reference did say that it should be given access to all necessary files). However, it appears to have been hampered by what looks like failings in records management. The report notes that

a number of potentially important areas of documentation…have not been provided to us. The explanation for this absence varies between:

a) a suspicion (or sometimes hard evidence) that they have been destroyed;
b) a belief that they must exist but cannot be found; or
c) that there simply is no record available and no way of knowing if one was ever made

Note that none of these explanations gives an indication that information has been deliberately withheld, so the subsequent announcement by the Home Secretary that there will now be a public inquiry (with full legal powers to gather information) into the infiltration methods of undercover police does not necessarily mean that information-gap will be filled.

The revelations of the disgraceful “spying” on the Lawrence family during the initial McPherson inquiry into Stephen’s death are, of course, the most important outcome of the Ellison Review. However, what unnerves me about the Ellison Review’s difficulties in getting information is that they starkly show that a failure to follow good records management practice potentially enables corruption and illegality to be covered-up, and that there is a lack of enforcement and regulatory mechanisms to prevent or punish this. The criminal sanctions regarding wilful destruction or withholding of information under FOIA apply only if the actions occur following the submission of a FOIA request, and, under the DPA, criminal sanctions only apply to unlawful obtaining or disclosure of personal data: destruction or hiding of information is unlikely to be a criminal act, in the absence of other factors.

I think this shows that Records Managers hold an exceptionally important role, one which is vital for organisational governance and compliance, and one which is sadly not recognised by some organisations. Records Managers should sit on information governance boards, should have a hotline to the Chief Information Officer, Head of Legal, Senior Information Risk Officer etc., and should be properly resourced and supported by those senior officers.

Stephen Lawrence would have been forty this year. The Stephen Lawrence Charitable Trust helps transform the lives of the young people it supports.