Editorial: The carrot and the stick: the impact of legislation and regulation on records management best practice, change and innovation

The delivery of our recordkeeping systems are linked to societal expectations and where society deems those expectations should be set as mandatory requirements then they will often be enshrined in law. The theme of the law and its impact has run through many Records Management Journal articles since its inception and launch nearly 35 years ago. Legislation and regulations influence every aspect of the design and delivery of our information systems from record creation, retention and deletion requirements, through to stakeholder rights, transparency and accountability through time. Laws also impact the role of professional records managers (including job descriptions, demands on time, resourcing and salaries and status within organizational structures) with some records managers becoming in effect paralegal professionals. Legislation is often seen as the stick that motivates records management delivery but rather should perhaps be promoted as the carrot seeking to ensure records management enables and delivers a better, fairer society. It is worth noting that within the 1948 International Charter on Human Rights (United Nations General Assembly, 1948), fundamental human rights rely on good records and information management, including but not limited to rights to property, privacy, freedom of speech and equality. Records and information management has always been critical to ensuring the creation and retention of evidential records through time which underpins all aspects of the law and its delivery and review; the latter is becoming ever more complex with the evolution of new technologies and their impacts on misinformation and disinformation (McLeod and Lomas, 2023). In addition, legislation drives forward and shapes innovation and change, dictating the parameters of research, technological advancement and delivery in practice. As such in these new frontiers in the “information age”, records managers and other professionals are increasingly taking a lead in contributing to and evolving legislative frameworks which advance information and technological evolution.

In terms of day-to-day practice, navigating legal structures is by its nature dynamic; laws can change at pace, at sector, state/local, national and international levels. Interpretation in this space can be complex often being the domain of risk management; when implementing legal requirements in the real world there is a need to balance competing considerations and to be mindful of shifting contexts. For example, individual human rights can conflict with societal and organizational rights, so there is a weighing of differing considerations required. Furthermore, as technology and data are shared and managed across global boundaries, international law needs to be traversed. Finally, there has been an acceptance that we do need to understand differing recordkeeping traditions and make space for all those stakeholders in our legal systems, for example, legislating for oral societies (Awan, 2014).

To deal with contextual complexities, laws have often become less prescriptive and more subjective with clauses that require interpretation and balance. This approach has many benefits as it allows for individual understanding and bespoke applications of the law. However, this does mean that regulators and the courts will more frequently end up as the ultimate arbitrators on decisions. We see this, in for example, the interpretations of privacy/data protection laws whereby professionals are asked to make subjective judgements which may then be opened up to later dispute and correction. In such instances, those with the power of holding the information and/or means to afford the best lawyers are most normally advantaged. As such, it is important for records managers to remember who they serve when holding and managing information and to try to mediate information provision for the benefit of all stakeholders and wider societal concerns. I have seen this very clearly in the work of (Memory-Identity-Rights in Records-Access a participatory research project hosted at UCL which placed care leavers as co-researchers at its centre. The work evidenced that the official records of children in care are often the only means by which care-experienced people can access and understand their childhood past. However, care leavers in the UK and Europe can most normally only access their records via lengthy legal data protection requests. Often the information they receive may be heavily redacted due to professionals determining that the release may compromise the authority who managed their care or another person/organization’s privacy or confidentiality rights and as such erring on releasing what they deem to be cautious and prudent (Lomas et al., 2022). This is in spite of the case precedent of Graham Gaskin, who was in care in England and won a case that was ultimately heard in the European Court of Human Rights. This case judged that the records of his childhood care were rightfully his in their entirety, given they only existed due to his care experience (Shepherd et al., 2021). Nevertheless, there are still cases where care leavers are denied their records in part or full, and records managers who seek to destroy information at the earliest opportunity sometimes mistakenly believing that this is responsible action; across the world there is a transitional shift seeking to address this and indeed Evans et al (who have been leading in this space) pick up on this thread and case for change in their article within this edition. As such there are many domains where there does need to be professional challenge, particularly in cases where power balances exist despite the law being there to assist and empower individuals and societal outcomes. Within this context, records managers must understand the part they themselves play and the education, training or support needed to provide people with better recordkeeping and legal literacy to support their information access.

The balancing of individuals and societal rights and consequences is ever more complex in a digital world. We see nations making decisions at to where to draw the boundaries for innovation and responsibility. For example, are social media corporations, social media authors or both responsible for the harm their content can cause? When and what types of decisions can an algorithm make without having a human in the loop? What are the privacy impact assessments that need to be in place before implementing a facial recognition technology solution? There are many questions, choices and boundaries that need navigating, and different nation states are determining different boundaries in terms of citizen safety versus convenience or innovation.

Records managers have an important role to play in this space and this themed double issue traverses some of the complexity of legal spaces, to consider some of the challenges and opportunities we face.

There is a need to keep articulating the role of records management within legal spaces. This is an ever more complex challenge and one that does need constant advocacy. Many of the articles included in these two issues evidenced the often fluctuating space and support for records management within our legal systems, as well as the significance that having underpinning laws can ultimately make to records management delivery in practice. We see this significance being discussed in a range of ways. Hagan makes the case for how a Public Records Act can create a culture of value for public records, setting this within the Scottish context. However, Farrell draws attention to the problems within the Irish recordkeeping legal systems whereby specific records management requirements are absent. He advocates for the value that requiring a records management code of practice has had in the UK public space and provides recommendations on change for Ireland. Xinin evidences the impacts of laws, and their enforcement in practice, on local Chinese recordkeeping systems in village contexts. In line with Farrell and Hagan, she makes a case for training, education, understanding and resourcing, discussing the considerations of political thinking that ultimately can underpin delivery outcomes.

The sense of politics does run as a thread through many of the article discussions. Those in power set the legislative agendas within their purview. Howard picks up on the ongoing controversies of the Kennedy Assassination, the conspiracies that have grown around this event and the role of recordkeeping and transparency in providing accountability or potentially denying this. This event has had its own specific freedom of information legislation and release processes, with the case as to what should be released continuing to be debated drawing in a number of Presidents through the decades. Whilst the USA was an early adopter of freedom of information laws, its handling in this instance has shown up areas for improved processes – a case study on accountability and transparency from which all nations can learn.

Building on Howard’s lessons on accountability and the law, others pick up this theme. Farrell makes accountability a central theme in terms of recordkeeping delivery. Batista draws in the need for public accountability in terms of procurement processes and recordkeeping, with Mokhtar and Widura discussing this in terms of the audit function.

In many of the articles, the opportunities and challenge of new technologies arise. Batista makes the case for the value of blockchain in evidencing transactions. Svärd et al discuss the regulatory space of AI in the context of e-government. This latter article evidences the different decisions that are being taken around the world for AI usage. The need for records managers to be influencing in this space aspects of these decisions can be seen as critical.

In terms of retention at many levels, there can be seen to be a need for records management involvement. In our public records legislation around the world, we see Kautto and Hotti making the case for the significance of better records management to evidence the underpinning of how our laws have been evolved and to what extent they have incorporated stakeholder perspectives. It is perhaps a known issue that we often do not retain drafts in our recordkeeping systems but retain only the final versions in our quest for minimization of information retention. However, Kautto and Hotti make a powerful case for the retention of drafts and their future value; this is a debate which will resonate with other past and present calls to ensure that our recordkeeping systems are more inclusive and less top-heavy. As such, it is beneficial that Evans et al.’s article brings us back to that important person-centred positioning. Evans’ article makes the case for “real-time rights-based recordkeeping governance” as a new foundational underpinning for regulation drawing in the complexities of multiple rights in recordkeeping for Alternative Care. This is a transformational possibility that can provide for a better future to the marginalized and a rebalancing of power in the care setting discussed and other spaces beyond care.

Moving forward there is a need for legislation to work to support fairer societal delivery taking into account a wide range of technological, information and evidential considerations. We need to co-create information and create an information literate society that can navigate the law and equitably access the support needed to do so. Records management professionals must play their part in making the case for new laws and helping shape the legal and regulatory landscape and recordkeeping delivery.

In January 2016, I had the privilege of taking on the co-editorship of the Records Management Journal, firstly with Fiorella Foscarini (2016–2019). We had the challenge of following in the legendary footsteps of Professor Julie McLeod who continued as a consulting editor during this period. In 2019 Julie McLeod and Fiorella Foscarini stepped onto the Editorial Board. I would further like to thank Julie for her encouragement to take on this role and her unwavering support of the Journal – she continues to be a regular reviewer in particular and an active contributor in so many broader ways. In 2020, I was then blessed that Sarah Demb (2020–2024) joined as a Co-Editor. I owe all three a great debt as they gave me new perspectives and international insights. It is right to particularly thank Sarah at this time, as she has just stepped down. Over her tenure, she fostered new scholarship for the profession, most particularly in championing a themed issue with Eira Tansey on the Anthropocene.

I am myself stepping down at the start of 2025 as this will mark nearly a decade in post and it is right to have change. This is a really important Journal, which it has been a privilege to serve. It is the only international journal devoted to records management exclusively which is not part of a single professional society or association. It is one of the few Journals that works really hard to include the voices of practitioners and professionals from all regions by very actively working with the authors on the editing of their texts where their work has an important contribution to make to the field but potentially the authors first language is not English. Its articles chart the many challenges and history of the profession through the decades. More could be said on our evolution as a profession and, in this regard, I encourage more records managers to research, write, peer review and contribute to this Journal and the broader research landscape. Research and scholarship are the mark of a mature profession which educates and learns together through time and debate.

My own passions lie in the promotion of information governance (which crosses disciplines providing an important positioning for records management) and recordkeeping laws which underpin every part of our roles. I have had the joy of editing themed issues on both. I now look forward to continuing to contribute from outside an editorial role and seeing the Journal continue to evolve. My final plea is to all those in this space to ensure the ongoing place of the Journal and to: