Where are you, ethically?
a speech by Nicky Hager to the Records Management Association of Australasia conference, 10 September 2007, Wellington.
The thing I respect about records staff is the underlying belief that all information is intrinsically valuable. Whatever the organisation may think about information no longer being relevant or necessary, the recordkeeper sees the public interest in preserving information for the future, for those unknown future users with their unforeseen needs.
I am speaking today as one of the users of the records that many of you spend your working days organising and protecting. My work involves extensive use of freedom of information laws and archives and also extensive use of records that organisations and governments preferred to keep secret and that I have had to obtain unofficially.
I am an enthusiastic user of records. I understand some of their importance for historical work, their democratic importance for allowing ordinary people to know what is going on and their political importance for holding people in positions of authority accountable for their actions.
It is a sad truth in politics, and maybe all human activity, that when people believe they are acting in secret they do things that they would never do if they believed other people might find out. Often good record keeping and the availability of those records is the best protection we have against deception, dishonesty and corrupt behaviour by people in positions of influence. I hope you recognise this important and powerful effect of your work.
I was given the speech topic “Where are you, ethically?” and asked to challenge all of you to think about the ethical issues involved in your work. It feels presumptuous to launch into challenging other people about their ethics, so I thought it might be good to start off as an example by talking about the kinds of ethical issues and decisions that come up in my work. I will be trying to show the way that we all face ethical decisions in our work.
My work involves researching difficult subjects such as military operations, intelligence agencies, PR companies and the less open sides of politics. My research involves writing freedom of information requests, conducting fieldwork, reading archives, locating specialist or lateral sources of public information and interviewing people. For subjects that are very secret, I sometimes have to seek people inside organisations who will talk to me unofficially and sometimes leak information to me. There are lots of challenging ethical issues involved in this.
In the case of my recent book called The Hollow Men on the New Zealand National Party (equivalent of the Australian Liberal Party), I could not have written it without having established some fascinating relationships with people in and near to that party that resulted in my being leaked very large quantities of sensitive party documents. Some of the New Zealanders here will have heard of this book mostly through the howls of protest from the National Party about me having access to their private papers and communications. They asked the reasonable sounding question: What right did I have to publish the party leader Don Brash’s private e-mails?
It’s a good question. There are lots of interesting ethical issues involved that are at the heart of understanding which records the public has a legitimate right to see and which it does not.
The first issue is about privacy. I am well known for being an advocate for people’s rights to privacy. My first book revolved around those issues. So what am I doing publishing someone’s private communications? Where am I, ethically?
The answer lies in the meaning of ‘privacy’. ‘Private e-mails’ can mean two very different things. ‘Private’, in the sense of personal privacy, refers to people’s families, personal relationships, health information and so on. I believe there has to be a very, very strong reason before anyone has a right to intrude on other people’s privacy and accordingly I included no such information in my book on the National Party. There were no private e-mails in that sense.
I hope you agree that respecting and protecting people’s privacy is a fundamental ethical and professional issue for anyone in your profession. I think some organisations are too blase or careless about the protection of the personal private information that they hold.
However the other meaning of private e-mails is completely different. This is ‘private’ in the sense of something being kept confidential, as in ‘private ministerial meeting’ or ‘private diplomatic talks’. It is secrecy, not privacy. I regularly obtain and use private documents in this sense of the word. I couldn’t do my job properly if I didn’t. The National Party book contained hundreds and hundreds of this sort of private document.
Secondly, publishing leaked confidential information can be damaging to the organisations concerned. Leaks can strain relationships between staff, lead to uncomfortable suspicion on staff members (whether or not they were the leaker) and breach obligations of trust and loyalty between employees and their bosses. This means that there has to be a very good reason for leaking, not just a quick headline and controversy.
My book revealed politicians knowingly telling lies to the public (and sometimes their staff carefully scripting the lies in advance). They also revealed knowing breaches of the election finance laws and hidden alliances with controversial lobby groups and individuals that they preferred to keep from the public. There were strategy discussions between key staff and MPs where they talked about hiding policy plans from the public until after an election victory. There were records of the planning behind election campaign messages and major speeches, such as the leader’s speeches attacking Maori, revealing a deeply cynical attitude towards ordinary people. One chapter contains the reports and e-mails from their Australian election strategists Crosby Textor and is a hair raising demonstration of the calculated use of fear and prejudice to win over disengaged voters. (Crosby is long-time Australian Liberal Party campaign manager and Textor long-time Liberal Party pollster, so Australians here who are interested in politics would find this interesting reading to understand the thinking that drives current Liberal Party campaigning.)
There were strong public interest reasons for publicising this information. The people whose documents had been leaked were campaigning to become the Government and run the country. They were seeking public endorsement to be in charge of the country’s public spending, schools and hospitals, foreign policy, laws and public administration. Whether they were presenting themselves and their motives and plans honestly to the public is fundamental to the democratic process. The public needed to know that they had been blithely telling lies. I believe this was a decisive case of where accountability and the public’s right to know justified receiving and publishing leaked information.
But even then I had to make ethical decisions. I did not publish parts of the leaked information that were legitimately private and legitimately secret. I didn’t publish large quantities of fascinating material that might have suggested who my sources were. And I did my best to write respectfully about the individual people at the centre of the story, since the public interest concerned their actions, not them as people.
This is the nature of ethical questions and decisionmaking. There is always a set of relevant and sometimes competing ethical considerations that need to be weighed against each other, all in the context of the particular factual circumstances. Someone’s obligation to their employer may conflict with their obligation to society. The obligations to society, such as freedom of information and people’s right to privacy, may pull in different directions. Sometimes there isn’t a clear answer. I find myself frequently wondering over questions of what is right and wrong in my work.
Some people would say, ‘if it’s a good story, just publish it’. Publish and be damned. But I believe that wherever our action or decision — or inaction or avoidance of a decision — might affect other people, we have a responsibility to think carefully and do what we think is best.
It is the same with all of you. Some people would argue that recordkeepers have a simple and over-riding responsibility: just to follow the directions of senior management. That it’s the managers’ call to make the ethical decisions. But, as I was illustrating in my own case, ethics is a personal responsibility.
It’s like doctors and nurses and other professions; even soldiers. There are ethical standards that they have to uphold whatever some manager or officer may be ordering them to do. If a medical professional believes that a patient is at risk from incorrect care, they have a professional obligation to act on that concern, even if it is unwelcome. It is no defence for a soldier to say he or she was just obeying orders. Journalists have an unnegotiable obligation to be accurate and fair and to protect their sources that stands above any instructions they may be getting from their employer. This is all part of what makes us ethical creatures, created by and living within the long-evolved ethical standards of our society and professions.
I am going to run through some of the ethical issues I have come across affecting recordkeeping and talk about how people in your position might respond. They are obviously examples seen from the point of view of someone seeking information from the outside but they serve to illustrate some of the ethical issues relevant to people in your profession.
Several years ago I met a public servant who had been put in a very difficult position by her Minister. The story is about a Minister had got caught up in a situation that risked becoming politically embarrassing after using Ministerial discretion to grant special assistance to a member of the public and taking a personal interest in the case. Some time later it emerged that the person the Minister had helped was a despicably vile criminal who received sensational news coverage. Now, the Minister hadn’t done anything wrong up until that stage. They were entitled to use their discretion or at the very most had made an honest mistake choosing to help this person. But they didn’t want to be associated with the case or have to admit a mistake at all. The Minister requested a meeting with the main three or four officials who knew about the case, eyeballed them and ordered them to destroy copies of a report that showed the Minister’s role. They were also told sternly that they must not tell anyone about it.
So this is my first example. If it was you who was called into the Minister’s office — or received an order from someone who had been — what would you do? The legal and ethical situation is obvious. There is no way that public records should have been destroyed. But the thought of not obeying a direct ministerial instruction seemed too personally threatening for the public servants concerned.
I assume the normal first step for an employee in this situation is to discuss the matter with their manager. But this particular case was a good example of why we can’t leave ethical responsibility to others. The managers had been in the room when the Minister issued the orders. They were not prepared to stand up the Minister. There was nowhere to go and the incriminating documents were destroyed.
But that shouldn’t be the end of the matter and in this case is wasn’t. The person I’d met had reluctantly obeyed orders but didn’t believe the Minister should get away with acting in that improper way. Her solution was quietly to make a photocopy of the report and take it home before all the copies were destroyed. There is an important principle at work here: if people in authority get caught out acting improperly it is a deterrent to them and others acting the same way again. If they can get away with acting improperly and can order other people to help cover their tracks, then why not keep acting that way? With this in mind, the public servant offered to give the report to me.
Was she right to do that? There are two competing obligations here: obeying the directions of superiors and not destroying important records. Should she have just obeyed orders and done nothing to stop the destruction of the records, or should she have done what she did, which was disobeying her superiors and deciding that public accountability was more important? It’s obvious what I think from the way I’ve told the story. What do you think?
By the way, as it turned out I could not publicise the report and the story has remained secret. The politician got away with it. I was stopped by one of the main ethical dilemmas that arises in journalism. It was an important story, but in the end I decided that I couldn’t publish without putting the public servant at risk. Too few people knew about what had happened and, try as I might, I couldn’t substantiate the story by any other route.
Most cases are not as black and white as ordering the destruction of records. A more common situation — but actually no better — is when politicians and senior officials simply avoid writing things down or putting them on the file in the first place. The effect is the same; shielding them from accountability for their actions and keeping the public in the dark. If there is no paper trail, then what’s to stop senior people from later denying things or changing their story as suits them.
I suspect many of you have experience of this problem of deliberate poor record keeping. Who should do something about it? While it is the responsibility of every employee in an organisation to keep good records, the people most able to do something are the recordkeepers. Since you are able to make a difference, you have an ethical duty to try to do so.
What do you do if managers or other members of the organisation are deliberately minimising or being selective about what goes on the file? I believe, first, it is your responsibility to be outspoken. This isn’t necessarily an easy role, but if you don’t do it, who will? It’s like the soldier who sees a human rights abuse or the health professional who sees substantard care. There is a professional and ethical obligation to be the one who speaks up for the interests you are employed to protect.
In practise, this may start with pointing out your concerns and reminding management of their record keeping obligations. Doing this in writing can have a powerful effect, since a piece of paper recording your concerns then exists. If that isn’t enough, you may need to seek allies within the organisation (people you know care about records). It is a recurring issue in professional ethics that people trying to act professionally can feel isolated and made to feel that they are being uncooperative or trouble making when they raise concerns. This is why finding allies and support can make all the difference.
Raising concerns about professional ethics should not be seen as being pedantic or nitpicking. Who was taking care of the records inside Enron? Or, for the New Zealanders here, what happened to all sorts of incriminating records from the tax dodge scams, dodgy privatisations and other murky business dealings of the 1980s and 1990s? The difference between a rumour, a scandal and a court conviction can be simply how well the records were hidden or disposed of.
In other cases, the records exist but the senior management or politicians prefer not to keep them secret. A person in my position of seeking the information gets used to the evasions. The reply might be that the information cannot be found or cannot be supplied because it would require too much research or collation. Often there is a large and clearly identifiable body of documents convered by a freedom of information request but — as in a reply from a state-owned enterprise that I received on the day I was writing this speech — the organisation waited two months before sending me a single press release, that was already publicly available, in response to my request.
Here are some examples from my own experience of what the person in your position can do when they see their organisation deliberately not releasing information that legally should be released. I won’t give exact details in order to protect the people concerned, but I hope the stories will show that there are more options when faced with an ethical dilemma than just obeying orders.
First there is a story I was investigating about a government agency involved in public safety. The agency had been lobbied persistently by a local lobbying firm for a change of policy that suited the commercial interests of its overseas corporate client. The officials within the agency had advised Government against changing the policy, saying that people would die if they did. But the lobbying effort worked and the policy was changed. I had been tipped off from within the lobbying company that there was an interesting story and had applied under our Official Information Act for all the reports and correspondence related to the policy change. Eventually I received a thick envelope of papers but none of the interesting papers I had hoped to find were there.
However shortly after receiving the official response, someone phoned my home and asked if I could meet them the following day at Te Papa, the National Museum here in Wellington. It turned out that this person had been involved in processing my information request and was unhappy about what had occurred. Sitting in a sunny corner of the museum, the person explained that the crucial documents had been excluded from the bundle sent to me, thereby hiding the significance of the decisions made. They told me the story verbally and offered that if I visited their home they would provide me with the missing documents. I did.
In another case, the head of a government department had made untruthful public comments about a high-profile and controversial issue arising from one of my books. The department head covered his tracks by instructing that none of the official documents explaining his role in the controversy — and contradicting his public comments — would be released in response to freedom of information requests.
Officials aware of the situation responded in different ways, showing the possibilities open to an ethical person. One of them wrote a letter to the chief executive stating in writing that she did not think the documents should be withheld. This was a courageous and professional act, putting the concern on the record.
But it did not lead to the chief executive changing his mind. Then a freedom of information request arrived (from another journalist) asking for all the documents on the controversial issue. At this stage another courageous staff member decided to act. She was unhappy that the chief executive was abusing his position to escape accountability.
Her response was simply to do her job properly, meaning more thoroughly and promptly than the chief executive wanted. She worked late on a Friday evening collating all the papers that were properly covered by the request and despatched them to another government department, that was coordinating the information request, on that same evening before heading for home. When the chief executive found out, he was furious but could do nothing to stop the papers as they were already beyond his control.
I know that this public servant, who had fulfilled her obligations under the Official Information Act fully and professionally, feels good about what she did. She could not be punished for acting improperly, because she had acted properly. She had continued a successful career. On the other hand, by acting openly it wasn’t going to be feasible to keep working for long under that boss. When her contract was subsequently not extended she had no doubt that the chief executive was paying her back, but by then she had decided that she preferred to move to a different department that suited her better anyway.
This example shows how challenging decisions over records openly can be a good option. However if the second person had felt insecure about her job, then acting quietly like the person who invited me to the museum might have been a better option.
In another large government agency, I had an acquaintance, who has become a friend, whose job included managing Official Information Act requests. He is an interesting man with a strong personal commitment to freedom of information. He fulfilled his personal ethics by just doing his job very well. Where some other departments provided the minimum information possible in response to public requests — apparently believing that public information causes unnecessary problems — he tried to ensure his organisation gave the most information possible. And he was proactive in helping useful information reach the public.
The main limitation on public use of organisational information is usually that the public and journalists do not know what information is there to ask for. For about 15 years my friend would quietly and regularly let me know about information that I was entitled to receive if I just knew what to request. In doing so he acted professionally and loyal to his employers, but also loyal to the right of the public to know about and access important information. Year after year he performed a remarnable public service.
I had a similar experience when I was contacted by someone in the Army and invited to meet him over a coffee. He explained that his position allowed him to see old defence files and he had seen some things that he thought the public should know about: Army files from the 1970s that showed that the Army knew in advance about the Indonesian invasion of East Timor and had done nothing to stop it. This was a suggestion that had arisen but been denied for many years, and in the absence of documentary evidence the subject could not be resolved. The Army man described the precise types of file he’d seen and what particular documents said. I was then able to request them from Defence and Foreign Affairs in a way that was hard to refuse.
All of these are examples of people working with records who took responsibility to assist freedom of information. I think they are good role models of ethical behaviour.
Unfortunately there is also a group of staff within organisations, a growing group, whose job is to hinder the availability of information. Returning to the East Timor files, that was not the end of the story. The information could not legally be refused, but the agencies concerned went out of their way to make it difficult for me, highlighting another level where ethical issues arise.
Although my right, under our freedom of information laws, to the thirty-year-old documents was clear, there are all sorts of tricks that agencies can play to thwart a requester. The first tactic was delays. It should take 20 owrking days, but it took about a year of effort and negotiation with the agences concerned to get agreement that they would release the documents. Then, just when I thought I was about to receive them, the officials referred my requests to the relevant Minister for ‘consultation’. This was the beginning of more months of delay, during which some faceless Ministerial adviser appears to have decided that this old history might not be a good news story for the government. As a result, they used one of the tricks of the trade of this new breed of information controllers.
After waiting over a year and expending lots of time to get the East Timor information, the Minister (Phil Goff) finally sent the pile of documents to me in the post on a Friday afternoon. But at the same time it was posted to me, and a few days before I would receive it, the same bundle of documents was delivered without explanation to every media organisation in the parliamentary press gallery. You can see the point of the trick. With no background or understanding of the issue, and Friday night drinks approaching, the journalists leafed through the released papers and whipped off quick and immemorable stories. But by the time the envelope arrived in my letterbox there was little prospect of me being able to use the same information for a more substantial story.
What I’m referring to here is the growth of Public Relations staff in most organisations. Like you, they are involved in your organisation’s information and making it available to the public. But in terms of respect for records and valuing freedom of information, many of them are playing for the other side.
In recent decades there has been a strong trend towards organisations providing the public more spin but less information. Public relations people object to it being put this way, but their job is about control rather than openness; and too often is about propaganda (meaning the use of deceptive or distorted messages to influence the audience) rather than information. If you have experienced any drop in numbers of records staff in your organisation in recent years, you can be pretty sure there will have been a rise in the number of PR staff.
No one should trust PR people to look after an organisation’s recordkeeping and promote freedom of information. Their goals are usually about short term political management. A few years ago the national president of the Public Relations Institute of New Zealand, Norrey Simmons, talked to a public relations institute conference about New Zealand’s MMP proportional representation electoral system. “The system is more transparent,” she said “which is good, but it would be wise if people don’t take too many minutes.”
This is the way many PR people think. They are advocates of not keeping records if they might one day be an embarrassment. They are also advocates of secrecy and tight controls on release of information. The point of secrecy and control of information is that they open up options for information to be ‘managed’. Public Relations people can then ‘spin’ information, ‘accentuating the positive and eliminating the negative’ as required. They can selectively release information to create desired impressions. They can choose the timing of information releases: bad news on busy Friday afternoons and the week before Christmas, good news when it is most beneficial for the PR strategy. They can also lose information; or keep it so secret that no one ever asks. The result of all this is a shift towards less democratic and more public-relations-driven government, and less straightforward and honest communications from businesses.
Unscrupulous PR people have fundamentally different objectives and methods than the guardians of an organisation’s records. You are engaged in a struggle between short-term and long-term priorities. The influential role that PR people play in many organisations makes it all the more important that recordkeepers be strong and ethical in your professional roles. What does this mean for you? As I said earlier, it means being assertive about reminding people of their record-keeping obligations and being prepared to object when they do not fulfill those obligations.
It also means being assertive about providing information that the public or other organisations are entitled to receive. And, as mentioned earlier, you can be proactive in helping increase access to and use of your organisation’s records. You, and often only you, are well informed about all the information in your file room and archives. While it is in theory publicly available, in practice most of it will never be used because the people who might use it are not aware of what is there.
Please put your knowledge to use in the public good. If there are subjects that you think would be interesting to researchers, historians, journalists or public interest groups, you can do a great deal of good by simply letting those people know. By this simple act you can greatly increase the value of the records to society. Please consider whether this role might be one for you. I’m not talking about restricted information, merely letting the right people know what is sitting their accessible to the public. In this way, there is a better chance that the public will receive real information about subjects affecting their lives, not just public relations from that very different group of information staff upstairs.
There are other trends threatening record keeping. One is changes in employment laws and attitudes to employment. People stay in jobs for shorter periods and so naturally do not feel a long-term commitment to the organisation. But records are all about thinking long term. It appears to me that employees in organisations have much less of a culture of record keeping than people in earlier eras. I suspect that more work occurs informally, over coffee and in e-mails, and that these and records of phone calls and meetings are much less likely than in the past to end up on the file. This becomes even more complicated when people work as consultants on short-term contracts or whole areas of work are contracted out. And when organisations are undergoing restructuring and change, the insecure and maybe soon departing staff are even less likely to make time for long-term concerns such as the preservation of records.
What is your responsibility here? It’s no good being passive. It is monitoring the quality of record keeping throughout the organisation and making sure key people know what is happening. It means helping individual staff do a better job. But you can’t do it all so there needs to be constant education of key managers so they understand the issues; and lobbying so that they will provide the the resources necessary to train staff in good recordkeeping. These issues should probably be thought of by managers without needing lobbying from you. But in reality if the records staff don’t push for high standards, quite likely no one will.
Then of course there is technological change. I am pleased to hear that there is serious work occurring, for instance around the Victorian electronic recordkeeping standard. A few years ago I used our Official Information Act to request e-mail correspondence between a government science organisation and a pro-genetic engineering industry lobby group. The scientific institute replied that the e-mails were backed up in an encrypted form on a system they could no longer access. To answer my request would require hiring in special hardware and extra staff and they estimated that the cost to me for the information would be literally hundreds of thousands of dollars. I feel great nervousness about whether people will be able to access archives and records in the decades and centuries ahead in the way we can today. I appreciate the work your profession is doing to cope with these huge problems.
I want to conclude by reiterating how your work can have maximum public interest value and democratic importance.
First and most important is simply doing your job well. If the records are not collected, organised and protected in the first place then they are probably lost for ever. As I have been saying, there are people who prefer that less goes on the file or papers get lost — and of course there are others who are just slack — so there need to be assertive recordkeepers who promote and insist on proper standards.
The second and extra role is actively helping make information available to the people who can use it. This means thinking about records that may have important public value and then informing researchers, historians, journalists and public interest groups about their existence and how to access them. A small bit of research will reveal who might be interested in a particular subject but who might otherwise never know such records exist. For example, someone working in a public archive regularly sees new sets of files deposited. It would be hugely helpful to let some of us know when you see things that might be of interest, rather than just waiting for if we happen to be looking and stumble across them. Countries like Australia and New Zealand have relatively few people with the time to locate, gather and use all the publicly useful information that is available. You can help immensely in this way.
Third, every once in a while there are cases where someone in your position becomes aware of things that are seriously improper, dishonest or unlawful in your organisation. This is the cases like the National Party story I talked about, where there is an exceptionally strong public interest in the public and/or some authorities finding out about wrong doing. These are also the cases where there are active efforts to hide things and stop information getting out. In these cases you may be like a records manager in Enron, where the ethical obligation is to help the information get out anyway.
If you are ever in this position, I urge you to think carefully about putting the public interest first and tipping off some appropriate person to what is going on. But let me emphasise the “carefully” because there are ways to do this safely and responsibly and ways that can go wrong. The appropriate person to approach may be the Auditor General (state or federal in Australia) or Police. Other times it may be a journalist or Member of Parliament. In every case it is important to choose the right person to go to, who will treat you with respect and care and not just charge off chasing the story. In the interests of getting it right, can I make an offer to New Zealanders? If you ever find yourself in this position and don’t know who to talk to, you are welcome to seek advice from me, as I have been involved in many of these cases. I’m sure any recordkeeper will have no trouble finding how to contact me.
If you ever find youself in the scary but important position of being the one who should publicise some hidden information, you will be in good company. There are people all over the world and through history who have played this role. Judging from New Zealand people I have known who have ended up in that position, it would be likely to be one of the most important and satisfying things you do in your life.
Overall I see these things as being part of what makes the profession of recordkeeping special. It’s not your job to generate the files or to use them, yet you’re the ones with an eye on the future who ensure records go on the file and then organise them, protect them and assist in making them available to those who can use them. It is public service role that goes far beyond just serving the management of the day. This is why it should be a natural part of your work also to be the strongest advocates of good recordkeeping, to be watchdogs checking for deliberate or careless compromise of the records, to encourage and facilitate use of the records and, if ever necessary, to be whistleblowers in defence of or because of your knowledge of the information under your care.
In closing, I want to use this opportunity to express appreciation for the work you do. Some of you have probably laboured away answering my Official Information Act requests. Others help me and numerous other people to access archives. Thank you for the support you give to people like me who use the records and archives that you care for.