Why do government files go missing so often, and what can be done about it?

At a rally on October 18, Prime Minister Modi jokingly commented that his office was operating an archaeology department to excavate missing files on development projects that were initiated decades ago.

This is not the first time the BJP has weaved missing files skilfully into the political narrative.

The Modi and the BJP have used the issue of missing files to accuse the Congress of a variety of political conspiracies, on subjects ranging from Coalgate – the alleged inaccuracies in the allocation of coal blocks during the United Progressive Alliance’s rule – the mystery over Subhash Chandra Bose’s death and more recently, the 2004 Ishrat Jahan case in which the 19-year-old from Mumbra and three others were killed in an alleged fake encounter.

However, on assuming office in 2014, one of the first faux pas of the Modi government was the destruction of 11,000 files on various subjects without following protocol. For this too, Home Minister Rajnath Singh had tried to put the blame on the UPA, saying the files had been identified during the previous government’s tenure.

In recent years, there have been missing files cases pertaining to events of great historical significance. For example, the correspondence between Prime Minister Indira Gandhi and President Fakhruddin Ali Ahmed regarding the Proclamation of Emergency in 1975 was declared missing in 2012 by the prime minister’s office. Similarly, critical files on the Ayodhya land dispute have also gone missing.

But not all missing files relate to historical or political events. There are also cases where administrative files have gone missing in large numbers from tax offices and the trademark registries.

Such cases not only disrupt governance, reduce accountability and aid corruption but also impede historical research and scholarship.

What the law says

On paper, India has a legal framework to ensure the preservation and integrity of public records. For instance, the Public Records Act, 1993, requires the central government and statutory bodies to follow certain processes while maintaining records. The accompanying Public Records Rules, 1997, provide for the procedural detail to be followed – it requires every government office to nominate a records officer who will be responsible for maintaining the files, create a Departmental Records Room for storage and provides a framework to transfer files to the National Archives.

More important, perhaps, is the Manual of Office Procedure compiled by the Central Secretariat. This manual has detailed instructions on how files should be prepared, numbered and stored. Then, the Manual of Departmental Security Instructions, 1994, lays down procedures for classifying files as secret. Unfortunately, this manual hasn’t been made public in India.

Right-to-information activist Venkatesh Nayak had sought a copy of it, but his plea was denied by the Ministry of Home Affairs on grounds that it was exempt under Section 8(1) (a) of the RTI Act – a provision allowing the government to not share information that can affect the sovereignty, integrity or security of India. He appealed to the Central Information Commission, which upheld the home ministry’s rejection. Other countries like the UK have made their version of this manual publicly available.

Do penalties work?

Since the RTI was enacted in 2005 to give citizens the power to seek information from the government by filing queries, several public authorities across the countries have cited files going missing as an excuse to evade applications filed under the Act. This served as the best excuse because the public information officer was spared the trouble of providing a reasoned explanation under the grounds enumerated in Section 8 of the RTI Act.

The Central Information Commission, however, cracked the whip on public authorities using this as an excuse to turn down RTI pleas. In a judgement on September 2014, information commissioner Professor Sridhar Acharyulu recommended that criminal proceedings be initiated under the Public Records Act in cases where files are reported as missing.

The Act criminalises the unauthorised destruction or movement of public records outside the country and provides for imprisonment of up to five years and a fine of up to Rs 10,000 for offenders. However, one rarely hears of convictions or even prosecutions under the Public Records Act.

Conducting criminal investigations or prosecutions into missing files, however, is easier said than done. In criminal prosecutions, it must be proven beyond reasonable doubt that an accused has committed the stated offence. Proving that a particular bureaucrat is responsible for a missing file is difficult and in most cases, it is unlikely these issues will even be investigated.

More importantly, malicious criminal acts are not the main reason why files go missing – a lot of cases are a result of poor administrative practices in government offices. Most offices lack dedicated record rooms and files are found piled up in corridors and random cupboards. In this ad-hoc system, things get even more complicated when bureaucrats are transferred from one office to another.

Measuring the problem

For any meaningful reform in the way files are stored and maintained in India, the first step should be an audit of the Centre’s record management practices.

For instance, in April 2011, it was reported that 44,000 files had gone missing from various branches of the Trade Mark Registry. The case of the missing files came to light only when a litigant petitioned the Delhi High Court requesting directions to the Trade Mark Registry to hand over two files. When the government claimed the files were missing, the court pressed it to conduct an audit of the registry – which revealed a total of 44,000 missing files. However, only two FIRs were filed, pertaining to the two missing files that prompted the court case.

It is likely that the same story is repeating itself in other government offices. The government should therefore consider an external audit to determine the magnitude of the problem.

Beyond digitisation

These days, the reflex reaction to problems in governance is to turn to technology. In case of records, digitisation is a tempting solution – one that is being implemented in many government departments – and it will certainly aid better record management. However, it should be remembered that the Public Records Act was enacted in a pre-digital age and therefore needs to be amended to tackle the increasing amount of information stored by the government on its computer servers.

The presidential race in the United States is a timely reminder of the challenges in maintaining government records in a digital world. Long before the scandal broke out about Democratic candidate Hillary Clinton’s use of her personal email account for official correspondence, there was the issue of 200 million emails – some pertaining to the Iraq war – going missing under the George Bush administration.

Technology, however, should not be the only solution. The government needs to invest more in training its bureaucrats in proper record management. Cataloguing and archiving are not skills that come naturally to bureaucrats. Training combined with audits can generate better returns than merely turning to mass digitisation.

Unfortunately, record management is not a glamorous political issue, even though it often is at the root of chaos in political scandals as well as daily administration.

Prashant Reddy Thikkavarapu writes for SpicyIP, a blog about Indian Intellectual Property Law and is a Research Associate at the School of Law, Singapore Management University.