Government Transparency Needs a Public Records Makeover

Public records are constituted by millions of documents and files that serve as critical antecedents of decision making in the Indian government. Purchase orders for vaccines placed by the government, travel records of the Prime Minister’s motorcade as part of his security protocol, the qualifications of an electoral candidate in their Election Commission affidavit—all these are examples of public records. They tell us how the government and its officials took decisions, which decisions and why.

Even as government functions such as public grievance redressal, filing applications, and transparency and accountability mechanisms, such as RTI Online and online dashboards, are being digitised, public records management continues under pre-digitisation era laws. While existing laws and policies are definitionally broad enough to govern digital documents and records, they nevertheless retain obsolete processes for document retention, archiving and destruction. For instance, government communications via WhatsApp, Twitter, etc., are routinely deleted or shared without adherence to protocols prescribed in the Records Retention Schedule which governs government communications. Furthermore, ongoing debates on privacy, national security and IP protection enhance the need for overhauling information management in the digital era.

Robust digital public records can help create an information society, contribute to a well-informed and active citizenry, and enable efficient public service delivery and administration. Digital governance is vital to ensure transparency and accountability of government actions, and ensuring efficient public service delivery.

The Digital Public Records Project at NLSIU

The Digital Public Records Project at the National Law School of India University, Bengaluru, places the sound management of public records as the precondition for achieving informational transparency. The project seeks to place the characterisation of records, data and information within public access debates and to enable legal and policy reform for records management in India.

Towards this end, the project team organised a Plenary Workshop on Digital Public Records on 8-9 April 2022. The convening included a select group of stakeholders from the Indian bureaucracy, academia, civil society, and the developer community to catalyse an exchange of perspectives and experiences. A detailed report presents the key research areas under the project as well as the discussions flowing from the workshop.

Existing laws governing public records management

The law and policy landscape for public records management spans multiple frameworks at the central level (see Table 1). These are complemented by sector-specific frameworks (e.g., those governing land records, health, public finance, etc.) and state and local level frameworks (State Public Records Acts, State Departmental Manuals, etc). These, inter alia, differ on the scope of public records, the management procedures prescribed and the enforceability of their provisions.

Table 1: Governance framework for public records management at the central level

Framework	Purpose and Scope
Public Records Act (PRA), 1993	Governs the preservation and management of each public record, tracking its entire life cycle including the processes and timelines for its retention. However, this only applies to the executive branch of the central government and public sector companies.
Right to Information (RTI) Act, 2005	Covers every record of each public authority, enabling access to anyone seeking information regarding a public authority. It further mandates public authorities to manage and save records in a manner that allows access[i] and proactive disclosure to the public.[ii]
National Data Sharing and Accessibility Policy (NDSAP) 2012	Sets forth the Indian government’s open data policy for government departments.
Departmental manuals	The Central Secretariat Manual of Office Procedure (CSMOP) contains e-office procedures, file origination, tracking and retention. The Manual of the Departmental Security Instruction inter alia describes the classification of documents.

Definition and scope of public records

Public records are defined in a broad and inclusive manner under the PRA[iii], the RTI Act[iv] and the Indian Evidence Act, 1872,[v] referring to any file, document, image, etc., created by a public authority. Notably, public records management goes beyond facilitating public access. These records need to be preserved, maintained, shared, used, destroyed or archived irrespective of public access. Such a broad scope creates challenges when it comes to their meaningful preservation and access. Categorising these records and defining the scope of each category could help with their prioritised management.

On the other hand, global best practices and discussions with stakeholders have highlighted that an inclusive definition of public records best serves the interests of transparency as it would permit civil society, citizens, researchers and other public authorities to claim access to such information, based on distinct purposes and contexts, which may be hard to determine at the time of creating or managing a record. Even in this case, however, classification is necessary to define the scope of public access, and the timeframe within which the records should be preserved.

Understanding linkages between public records and public data

Public ‘data’, ‘records’ and ‘information’ are often treated as overlapping categories when viewed through the lens of the transparent functioning of public authorities. However, these categories are governed distinctly. The simplest way to understand the difference between data and records is this: public records commonly serve as the source of public data. For instance, databases of revenue collection within a state rely on tax filings—which are documents or public records.

Ongoing measures to ensure transparent governance focus on improving open data sharing.[vi] In this context, the effective management of public records requires the collation of accurate and comprehensive databases.

Towards an effective governance framework

At present, public records in India are governed by multiple frameworks, with different records management requirements and information management systems. Moreover, they are managed by personnel with varying levels of capacity and skill. As a result, these records commonly exist in silos, with little or no coordination between the centre and states or across departments. They are updated variably across departments and offices, and are susceptible to discrepancies and inaccuracies.[vii]

A robust governance framework is crucial to secure the management of public records and to enable government transparency and accountability. To this end, we consider the following questions.

• A sectoral, decentralised framework versus an aggregated, overarching one

While there is a need to secure coordination and integrity in disaggregated records management frameworks, there are several sectoral and state/local level idiosyncrasies that must be kept in mind. For instance, the public distribution system has a centralised repository of information which is accessible at local levels, but its beneficiaries are heavily reliant on support from intermediaries or local level officials to navigate their access to digital records. These nodes are typically located at the district level, which is far removed from the village and block levels, leading to people’s lack of familiarity with district level officials and making last-mile access more difficult.[viii] Furthermore, record management responsibilities are discretely and concurrently allocated to both the centre and the state under the Indian Constitution.[ix]

• Binding laws versus principle and guidance-based approaches

While some frameworks prescribe binding legal requirements—like the PRA and RTI—others, like the NDSAP exist only as guidelines. When it comes to adherence, binding laws are not necessarily more effective than guidelines. Furthermore, enforcement responsibilities are held primarily by the executive branch, which is responsible for originating, storing, managing, and deleting records. As a result, the accountability for sound records management is diffused over many tiers of government and across departments, making its enforcement highly discretionary.

If we are to build a unified framework while permitting the scope to address both these considerations, it may be useful to consider binding principles at the central level, accompanied by state- and sector-specific frameworks as they exist currently. Further, there is a need to appoint a central supervising authority to establish clear lines of authority and enforcement.

There are several secondary questions that need clear answers to strengthen the governance of public records in India. These include identifying how disclosures of public records under the RTI Act can be improved, and how considerations of privacy, security, confidentiality and intellectual property exert influence on public records management and disclosure.

Notes

[i] Section 4, Right to Information Act, 2005.

[ii] Section 4, Right to Information Act, 2005.

[iii] Section 2(e) r/w Section 2(f), Public Records Act, 1993.

[iv] Section 2(i) r/w Section 2(h), Right to Information Act, 2005.

[v] Section 74, Indian Evidence Act, 1872.

[vi] The government has emphasised open data objectives and focused on revising current open data policies through a draft Data Use and Accessibility Policy 2022. See: https://www.meity.gov.in/writereaddata/files/Draft%20India%20Data%20Accessibility%20and%20Use%20Policy_0.pdf.

[vii] For example, land records like records of rights are verified using cadastral maps, but they may not reflect updated land ownership patterns as they are updated via land surveys that are conducted asynchronously, and without necessary coordination between the Survey and Revenue Departments, which oversee land surveys and land records, respectively. See https://iihs.co.in/knowledge-gateway/wp-content/uploads/2017/11/2.-State-level-Experiences.pdf.

[viii] This can also exacerbate the marginalisation of communities who must depend on social capital to access digital information and public services. See https://journals.sagepub.com/doi/full/10.1177/1466138120940755.

[ix] Under the Seventh Schedule of the Indian Constitution, historical records of national importance are specifically allocated to the Centre; land records and state historical records (except those declared to be of national importance) are allocated to the states; and the recognition of records is allocated concurrently to both. See: https://www.mea.gov.in/Images/pdf1/S7.pdf.

About the Authors

Trishi Jindal is a Research Fellow under the Law Technology and Society Initiative, NLSIU.

Srijoni Sen is a Visiting Assistant Professor at NLSIU.