Recently, the European Parliament discussed its decision about the
“definition of a document.” This appears to have been the question vexing
Members of the European Parliament (MEP), the European Union (EU) Ombudsman,
Members of the European Parliament’s Civil Liberties Committee, and the author
of a recent report which proposes to give the public better access to EU
documents.
The Committee voted by 26 to 5 to support the proposal by the report’s
author, MEP Michael Cashman. However, 15 members abstained, which has been
attributed either to the apparent lack of agreement about the definition of a
document, or the question mark over the union’s true commitment to openness and
transparency.
Questions about the definition of a “document,” how it’s stored and what
should be available for public disclosure are questions that vex every
organization and enterprise. This article will describe the current debate
between the EU’s decision on what is deemed a “document” and how that can play
out in a broader industry context. In addition, we will discuss how this type of
legislation will impact businesses industry- wide, and provide advice on the
role records or information management can play.
The first step
The first step in understanding the
debate is to contrast the traditional definition of a document with the
definition proposed by the European Parliament’s Civil Liberties Committee. The
traditional definition according to the Free Dictionary by Farlex, a document,
when used as a noun, has the following meanings:
- A written or printed paper that bears the original,
official, or legal form of something and can be used to furnish decisive
evidence or information.
- Something, such as a recording or a photograph that
can be used to furnish evidence or information.
- A writing that contains information.
- (Computer Science) A piece of work created with an
application, as by a word processor.
- (Computer Science) A computer file that is not an executable file and
contains data for use by applications. When used as a verb, document has
the following meanings:
- To furnish with a document or documents.
- To support (an assertion or claim, for example) with
evidence or decisive information.
- To support (statements in a book, for example) with written references or
citations; annotate.
From a records manager perspective
If we were to examine
the definition of a “document” from a records manager perspective, we would
focus on the first three definitions. In addition to the above definitions, let
us take into consideration how the Association of Records Managers and
Archivists (ARMA) and the international standard on records management define
the word “document”. ARMA defines a document as “(1) recorded information
regardless of medium or characteristics. Frequently used interchangeably with
the word record or (2) a single record item (letter, memorandum, form, or
report) consisting of one or more pages.” ARMA defines a record as “recorded
information, regardless of medium or characteristics, made or received by
organizations that is evidence of its operations, and has value requiring its
retention for a specific period of time.”
ISO 15489 defines a document as “recorded information or object which can be
treated as a unit”. It defines a record as “Information created, received, and
maintained as evidence and information by an organization or person, in
pursuance of legal obligations or in the transaction of business .”
From the definitions described above, the traditional definition of a
document should be clear and well understood. Or is it? In addition, in most
records management 101 training we are told that “all records are documents, but
not all documents are records”. That is clear, too. Or is it?
Mr. Cashman drafted the following definition of a document for use by the
European Parliament: “any data or content, whatever its medium, concerning a
matter related to the policies, activities, and decisions falling within the
institutions’ sphere of responsibility”. The intent of the committee was to
demand that legislative dossiers be made completely public, including the
positions of national delegations to the Council, and called on all EU
institutions to make sure that “all documents” are contained in their registers.
The Parliament stressed that legislative documents “should always be available
to the public and may not be kept secret on the grounds that this could
undermine the decision-making process of the institutions”. However, members of
the Parliament delayed a legislative vote on the issue to give EU institutions
more time to reach agreement on outstanding issues, like the privacy of
individuals and the definition of a document.
“If a tree fell in the forest…”
The delay in adapting
the committee’s recommendations was caused, in part, by the following statement
regarding documents: “documents” should only include files “formally transmitted
to one or more recipients”. This argument is an age-old records management
debate—can a document rise to the level of a record if it was not communicated?
For example, if I wrote a memo to myself saying: “Self, I will not do as
directed by management because it is unethical” is the memo a document? Yes,
according the definitions above. Is it a record? Well, that is a really good
question. The answer may be philosophical in nature. It is analogous to “If a
tree fell in a forest and no one heard it—did it make a sound?” If you choose to
answer that in the affirmative, then a document not transmitted could be viewed
as a record. If you choose to answer that in the negative, then you would argue
that the document could not become a record if the content was not shared with
another. Let’s agree for argument’s sake that the memo is a document because it
satisfies the definition of a document. Let us also agree that the memo is a
record because it documents a job-related decision and the content was intended
to be viewed by others—at a time in the future. Writing memos for record was a
normal practice by government action officers during my time of service. But the
question still remains—when is a document not a document?
From a legal perspective
Let’s look at this from a legal
perspective. Federal records law in most democratic nations state that
government agencies will make the following information available to the public:
“agency rules, opinions, orders, records, and proceedings”. Most democratic
countries, like the U.S., exempt the judiciary and legislative branches of
government from this legal requirement. Documents in the executive branches of
government are subject to the Records and Freedom of Information Acts. Documents
in the judicial and legislative branches are not. This is our first indication
of when a document may not be a document—when it is treated differently than
other documents. Is the document subject to a nation’s federal records act and
is the document subject to the Freedom of Information Act (FOIA)? If yes, then
it is a document. If no, it is generally not regarded or perceived as a
document.
Under the American Federal Rules of Civil Procedure (FRCP), civil discovery
is wide-ranging and can involve any material which is relevant to the case
except information that is privileged, information that is the work product of
the opposing party, and certain kinds of expert opinions. It is generally
accepted that the documents of all private and commercial companies and parties
on either side of a court case are discoverable. Does this discovery rule apply
to documents and notes created during discussions or deliberations made by
members of the legislative and judicial branches in their official capacities?
Again, where the answer is no, then the resulting documents are not documents.
They are exempted from civil discovery
Therefore, we can
safely conclude that a document is not a document when: (1) it is not subject to
federal record acts and FOIA, (2) when it is not discoverable, and possibly (3)
when nobody saw it or heard it when it fell in a forest…
Documents that captured the discussions and opinions of members of the
legislative and judicial branches while in deliberations are, in fact, not
documents because most nations exempt them from FOIA and discovery.
The members of the European Parliament have a legitimate reason for
abstaining on their vote. They do have the right to know when a document is not
a document, and should not vote on the proposal until after the matter is
settled, legally and maybe even philosophically. On the surface, this seems to
counter the aims and goals of openness and transparency that we expect from our
governments. The members of Parliament cannot be compelled to disclose their
“non-documents” by law but they can release them voluntarily, subject to privacy
concerns. But that is a subject for another day.
Bill Manago is vice president of the Information Governance Group of
CA, an independent IT management software company. With CA’s Enterprise IT
Management (EITM) vision and expertise, organizations can more effectively
govern, manage, and secure IT to optimize business performance and sustain
competitive advantage. He is a leading authority on electronic records
management standards and technology and currently serves as a member of the AIIM
Standards Board. For more information, visit www.ca.com, http://blog.ca-ig.com,or http://twitter.com/CAInfoGov.