Recordkeeping and Outsourcing of Government Functions

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Recordkeeping and Outsourcing of Government
Functions

• Stephen Clarke, Acting Manager
• Government Recordkeeping Programme
• Archives New Zealand

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Create and Maintain s.17 PRA

• Public offices and local authorities must create
  and maintain
• Full and accurate records
• In accordance with normal, prudent business
  practice
• Including records of matters contracted out
• Continue to maintain records in accessible form
  for reference until disposal is authorised

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Purpose of Contractors Records Fact-sheet

• There is confusion around the recordkeeping
  responsibilities for contractors records, or for
  recordkeeping advice when outsourcing functions
• This has been highlighted in the consultation
  process for the Create and Maintain Standard and
  guidance on this requirement will support the
  implementation of the forthcoming standard
• To address the confusion and add to the
  effectiveness of the continuum suite of
  publications.

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This is not a new issue

• The use of third parties to carry out public
  duties has been on the increase over the last few
  decades
• It has been an on going issue now explicitly
  covered under the PRA but not a new consideration
• This fact sheet is being developed to formalise
  guidance given in response to this recurrent
  recordkeeping query received by the Government
  Recordkeeping Programme about this subject.

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Objectives

• Give recordkeeping guidance on contractors
  records to public offices and local authorities
• Raise awareness of the requirement to create and
  maintain records of any matter that is contracted
  out to an independent contractor and maintain
  them in an accessible form for as long as they
  are required
• It will outline the principles for public offices
  and local authorities to meet their outsourced
  recordkeeping requirements as per s17 PRA and
  provide of guidelines and model contractual
  clauses.

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Contractors records includes e-records

• Email
• SMS
• Instant Messaging
• Websites
• Blogs and Wikis
• Databases, etc.

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Contractual relationships

• These relationships may cover the performing of
  local/government functions, or activities, by
  contractors, or other third parties under
  contract or by another agreement or functions
  performed by a non-government organisation where
  a public office or local authority retains some
  input
• These contractual relationships or arrangements
  can take many and varied forms.

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Coverage

• Internal
• External
• Embedded
• Large projects
• Small projects
• Long-term or ongoing relationships
• Outsource of entire functions

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The underlying expectations

• The underlying assumption for outsourced or
  contracted out recordkeeping are
• Recordkeeping requirements are clearly understood
  by all parties involved in the process
• Recordkeeping requirements must be consistent
  with any current legislation, and with any
  applicable industry standards.

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Recordkeeping principles for outsourcing

• Archives NZ was involved in the redraft of the
  Council of Australasian Archives Records
  Authorities (CAARA) Policy 13
• Recordkeeping Issues associated with Outsourcing
  and Privatisation of Government Functions 
• http//www.caara.org.au/Policy/policy13.htm

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Principle 1 Planning

• Arrangements for outsourcing business activities
  will address the creation, maintenance and
  disposing of records.
• Example
• Ensuring transition plans are in place to manage
  the following occurrences
• where one of the parties ceases to exist during
  the term of the contract
• where records management issues (related to the
  management of records at the completion or
  termination of the contract) arise.

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Principle 2 Ownership

• Ownership of records that result from a business
  activity performed by a contractor are addressed
  and resolved through legislation or
  contract/agreement.
• Example
• The agreement or contract defines any rights of
  the agency for the use of records created by the
  external service provider during the life of the
  contract or agreement, consistent with relevant
  statutory obligations (e.g. FoI, Privacy).

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Principle 3 Control

• Control of records is identified and provided
  for in the contractual arrangements.
• Example
• The agreement or contract specifies any
  technical standards needed to ensure
  interoperability between documents, records
  and/or information management systems used by the
  service provider and by the agency. For example,
  specifications about formats for electronic
  records.

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Principle 4 Disposal

• The issue of disposal is addressed in the
  contract and any disposal of records is according
  to a defined programme set by the public
  office/local authority.
• Example
• The transfer of custody of records to an
  external service provider occurs in accordance
  with an approved records retention and disposal
  schedule or other instrument, as required by the
  relevant archival legislation, or other
  instrument.

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Principle 5 Access

• An equivalent level of access to records is
  available to the public regardless of who is
  delivering the service.
• Example
• The agency and the external service provider
  should negotiate whether a fee will be charged by
  either party when it accesses the other party's
  records. Contracts should also include details of
  how the agency can access records for the
  purposes of arranging the return of the records
  once a contract terminates.

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Principle 6 Storage

• Appropriate records storage requirements are
  addressed in contractual arrangements.
• Archives New Zealand has established a mandatory
  standard for the storage of records, it is
  important that these requirements are
  communicated to contractors. It is also vital to
  include arrangements for the appropriate storage
  of records at the end of an agreement or
  contract. Failure to do so may result in records
  being destroyed through the perception that they
  are no longer the concern of the contractor, or
  inappropriately stored at the conclusion of the
  agreement.
• NB. It is also prudent to come to an agreement
  over the format, management and storage of
  electronic records as they are very vulnerable to
  accidental or inappropriate disposal.

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Principle 7 Contract completion

• Recordkeeping and archiving issues are addressed
  at the time of completion of contracts or
  agreements.
• It is unlikely that the contractors will want to
  devote time and effort to records of a business
  activity that it is no longer performing, unless
  there is a contractual requirement to do so
• Public offices/local authorities must ensure that
  the completion and post completion stages of the
  contract are well regulated, monitored and
  specified in the contract. Failure to do so
  could result in lost information and increased
  risk of exposure to legal liabilities
• Records returned by contractors on the completion
  of a contract will need to be accessible and
  useable. This means that records in electronic
  format will need to be transferred or migrated to
  the organisations system or otherwise brought
  into their custody.

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Training enablement

• Give contractors the tools to do it!
• Draft guidelines and procedures for external
  contractors this may include
• using specific BCS structures or electronic
  formats
• periodic transfer or reporting
• sharing your policies, procedures, etc.
• Train internal or embedded contractors as you
  would other new employees

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Scalability Risk Management

• The level of detail will necessarily reflect the
  nature of the activity or function being carried
  out by the contractor, for example, the risk and
  accountability which the particular public
  offices business involves.
• Where the public offices own accountability for
  the performance of the activity is likely to be
  high, normal prudent business practice would be
  that the public office require the contractor to
  generate and provide the public office with
  detailed evidence in the record of the
  performance of the contract.

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Benefits

• Protect your assets
• Document your business
• Cover yourself (legal compliance obligations)
• Mitigate against disputes over service delivery
• Protect your Intellectual Property
• Retain corporate knowledge
• Having well articulated contractual agreements
  is just good business practice and prudent risk
  management, ask your legal people!

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Sample Contract Clauses

• Contracts routinely address assets within
  agreements, records are important assets but this
  term may not be explicit enough to protect the
  organisation
• The guide will contain a range of basic generic
  sample recordkeeping clauses for organisations to
  re-use for their own purposes
• In very large contractual agreements or where
  significant functions are carried out it may be
  appropriate to have a separate dedicated
  contract, or agreement, which covers the
  recordkeeping aspects of the relationship

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Conclusion

• Ultimately it is the responsibility of the
  public office or local authority that these
  records are created and maintained not the
  contractor, so stipulating your legislative or
  other recordkeeping requirements protects and
  enables your business.

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Questions?

• Email stephen.clarke_at_archives.govt.nz
• Phone [phone]