When is an archive not the whole story?

Each year the release of national archives gives an illuminating view of political history, but are we seeing the complete picture, asks Charles Lysaght.

In the first days of each year the newspapers are full of revelations from the government records of 30 years ago released annually by the National Archives for the benefit of historians. Those who have an interest in such things should say a prayer for Garret FitzGerald who, as taoiseach, personally promoted the National Archives Act, 1986 under which such records were made available for the first time. However in our gratitude we should not overlook imperfections in that Act and its operation.

The annual reports of the National Archives Advisory Council and of the director of the National Archives reveal that a number of departments have failed to comply with their obligation under the Act to sort out their archives and to transfer them to the National Archives for inspection by the public. It is always a scandal when official bodies fail to observe the law and it should never be tolerated.

Under the National Archives Act, it is within the discretion of a certifying officer of each department to withhold documents from public inspection if it is considered that their release would be contrary to the public interest and on a number of other more specific grounds, such as that the records are defamatory of living persons. The only protection against abuse of the discretion is that the consent of an authorised officer in the Department of the Taoiseach must be obtained. There is no outside person with power to review the exercise of this discretion; it is left to civil service mandarins to sort it out between themselves. It would be surprising if they did not interpret their discretion to withhold from public inspection widely but we have no means of knowing if this is so because they are not bound to give particulars of the records they have withheld.

The certifying officer of a department may also withhold documents still in regular use within the department. The necessity for such an exception must be questioned now that documents can be photocopied. The exception is capable of abuse especially as the consent of the certifying officer in the Department of the Taoiseach is not required before it is invoked.

The whole issue of the release of documents under the National Archives Act, 1986 needs to be reconsidered in the light of the Freedom of Information Act, 1997 under which access may be obtained to current documents of public bodies, including government departments. The Freedom of Information Act has tightly-drawn criteria for withholding official documents. There is a right of appeal to the Information Commissioner against a decision of a public body to withhold documents.

Because the Freedom of Information Act generally applies only to documents created after March 1998 there will not, in the short term, be an overlap with the National Archives Act, which relates to documents over 30 years old. However, this will not always be so, especially if the Government honours the undertaking given when the Freedom of Information Act was debated in the Oireachtas that the start date for documents to which it would apply would gradually be extended backwards and documents created before 1998 made accessible.

Whether or not this is done, it is clearly an anomaly that a more liberal regime with an independent review should apply to more recent official records when it does not apply to older records. It highlights the need for a person outside government or the civil service to adjudicate on the release of documents under the National Archives Act.

A danger much canvassed in the context of freedom of information that would have implications for the quality of archives is that it may make civil servants reluctant to commit internal departmental discussions to paper in case the media get hold of them to embarrass ministers who have disregarded the advice of their civil servants or who have pleaded ignorance of matters to which their attention was drawn. It was a Tammany Hall boss who said memorably: "Never write if you can speak; never speak if you can nod; never nod if you can wink." The information commissioner Kevin Murphy has examined the matter and has not found that this has happened to any appreciable extent. He also claims that the obligation to give reasons for decisions under the Freedom of Information Act, 1997 should lead to better records being kept.

Not everybody would share his optimism. In its report for 2001, the National Archives Advisory Council called for the synchronisation of the provisions for release of documents under the National Archives Act and the Freedom of Information Act with the same system of independent review applicable to each. This is done in the United Kingdom under the the Freedom of Information Act, 2000, although there is room for argument on whether they have got the balance right in all cases.

The National Archives Advisory Council also called for the extension of the National Archives legislation to the records of state-owned bodies and local authorities. All this, as well as the construction of a great new building in Bishop Street to house archives, are among the tasks upon whose peformance the newly-appointed responsible Minister, John O'Donoghue, will be judged - especially by historians.

Charles Lysaght is a barrister and was a member of the national Archives Advisory council from 1997 to 2002