Monday, 11 October 2010

Handwritten Notes in Napier

The Chief Minister was forced to admit that States chief executive Bill Ogley - the most senior civil servant - had destroyed hand-written minutes of the meeting to suspend the police chief before Mr Power had agreed that they were accurate. Senator Le Sueur told the States yesterday that a typed transcript had been made from the notes before they were thrown in the bin. The transcript was subsequently signed off by the then Home Affairs Minister, Andrew Lewis, but without the original notes being shown to the police chief.


Of this meeting with Bill Ogley and Andrew Lewis and Graham Power, Brian Napier's report says:

"Subsequent to the meeting, the handwritten notes of the meeting taken by Mr Ogley were destroyed. That, I was told by Mr Crich, was in accordance with normal practice. I have to say that, in all the circumstances, it is my view that it would have been wiser to have retained all that was available by way of record of that crucial meeting. But I accept Mr Ogley's account - that he transcribed the notes immediately after the meeting and that they were subsequently typed up for the parties to sign."

Now Bill Ogley is Jersey's equivalent to the Cabinet Secretary in the UK Government (and is probably paid almost as much). But when we look at what happens with the Cabinet Secretary in the UK, we find quite different record keeping in place The National Archive notes that:

"The Cabinet Secretaries' Notebooks are the hand written notes which the Cabinet Secretary makes when he attends Cabinet Meetings as the Senior Secretary. (1)

Of course, as I'm the first to admit, that doesn't apply to all meetings, only to important Cabinet ones, but nonetheless there are lessons there for the situation with the meeting at which Graham Power was suspended. This is because whether or not it is standard practice to destroy notes in Jersey, it is certainly questionable whether the written minutes were an exact transcript of the meeting. For example, returning again to the Cabinet Secretaries notebooks (the equivalent of Bill Ogley's hand written notes), the official British Archives site notes how these differ in important respects from the final minutes:

"Q. How do the notebooks differ from the official cabinet minutes?
A. The main difference is that the official minutes do not attribute views to individual ministers as the Notebooks do. Nor do the items necessarily correspond: the Cabinet Secretary did not note every item, but sometimes included incidental discussion not reflected in the official minutes."(1)

Minutes then may well represent a form of redaction, which the transcript (the raw data) does not. A situation depicted with humour in "Yes Prime Minister":

"It is characteristic of all committee discussions and decisions that every member has a vivid recollection of them, and that every member's recollection of them differs violently from every other member's recollection; consequently we accept the convention that the official decisions are those and only those which have been officially recorded in the minutes by the officials; from which it emerges with elegant inevitability, that any decision which has been officially reached would have been officially recorded in the minutes by the officials, and any decisions which is not recorded in the minutes by the officials has not been officially reached, even if one or more members believe they can recollect it; so in this particular case, if the decision would have been officially reached, it would have been recorded in the minutes by the officials and it isn't so it wasn't." (Yes Prime Minister)

A Tribunal on this subject further commented on the Cabinet Secretary's handwritten notes of a Cabinet meeting:

". the manner in which an individual takes contemporaneous notes is likely to be idiosyncratic and could well give a false impression as to the weight and importance that should be attributed to a particular part of the debate or the tone in which the points of discussion were expressed."

But the Tribunal also considered that there could be exceptional circumstances in which it was important to check the handwritten handwritten notes with the formal minutes:

"Were the handwritten notes to reveal something of significance which was not recorded in the formal minute, the Commissioner might take a different view. Each case, however, must be considered on its own particular merits" (6)

It is clear that this practice of handwritten notes was also not continued with the suspension review meetings under Ian Le Marquand where there are not minutes of the meeting but a complete transcript of the audio recording - Mr Crich's normal practice did not apply then, nor of course with scrutiny hearings, for which there is also a written transcript of the
audio recording.

One would have expected - given Senator Le Marquand's subsequent use of full audio transcription - for Brian Napier to have commented on how matters had been improved, or why matters had changed between Mr Crich's comments to him and the later meetings with Mr Power, and perhaps noted that this had been done precisely to avoid the accusation that the minutes distorted or omitted matters of significance.

This also comes under the sphere of data retention policies, where requirements, especially for handwritten notes of substance (which can always be easily scanned as PDF images), can be important:

Document retention, especially the retention of electronic data has become a hot topic in the legal industry. In the 21st century business world, companies are creating and storing the electronic document and information at light speed. Electronic documents are not only found on desktops and laptops but also stored on the phones like Blackberry's etc. But for modern business organizations storing all this business information can be expensive not only because of the cost of physical storage of tapes but also because of the potential liability of keeping sometimes seemingly useless information for too long.

A document retention policy provides for the systematic review, retention and destruction of documents received or created in the course of business. A document retention policy will identify documents that need to be maintained and contain guidelines for how long certain documents should be kept and how they should be destroyed. (2)

Those notes are from India which is striving to comply with the data protection laws of the EU, and to which Jersey is also subject with its own Data Protection Law. On the subject of which documents must be protected, they note:

Temporary Records: Temporary records include all business documents that have not been completed. Such include, but are not limited to written memoranda and dictation to be typed in the future, reminders, to-do lists, report, case study, and calculation drafts, interoffice correspondence regarding a client or business transaction, and running logs.

They note that temporary records need not be kept as long as final records, so that - provided a minute is signed off by all parties as accurate, the documents from which it is transcribed can be destroyed. Regarding how long any documents - including written memoranda - should be kept, the matter is open - and this is the same position as in Jersey's own Data Protection Law. But note the caveat at the end, which would, in my opinion, certainly apply to the handwritten notes that were shredded:

How long should documents be kept? Only for so long as the law requires or for as long as you actually have use for them, and not a moment longer. There is no bright line number. In typical lawyerly fashion, my real answer is that "it depends." Any records management program must ensure that legally required documents are kept for at least the minimum prescribed time periods. But, are there circumstances under which they should be kept for a longer period of time? In my view there are two answers to that question. First, there may be records you think are critical to preserving historical continuity, for example, minutes of strategic planning meetings or of policy development sessions..... The second reason may be litigation or governmental investigations and enforcement actions... These latter circumstances will almost always out trump your retention and disposition schedule.

We can see that handwritten documents also feature in requests to the UK's own Information Comissioners Office. Two examples of this kind of request follow:

Case Ref: FS50113234: Date: 28/01/2008: Public Authority: Northern Ireland Court Service: Summary: On 29 November 2005 the complainant made a request to the Northern Ireland Court Service ("NICS"), for documentation, notes (handwritten, electronic or otherwise), telephone records received into and emanating fromNICS in relation to emails and letters sent by the complainant.

On 14 June 2006, the PA wrote to the complainant with the outcome of the internal review. It states that the reviewer was unable to find a request, prior to 27 May 2006, for the [handwritten] notes taken during the meeting between the inspector and the complainant but encloses them. It goes on to say that the single reference within the inspection evidence to the "difficulties" faced by the governing body does not provide an explanation of what those difficulties were.

Now I do note that it is common practice in offices for handwritten notes to be made and then destroyed after the minutes have been agreed; I also note that on occasions where I have been present, there may have been mistakes in the minutes that I've spotted (or others have noted), and these are corrected by feedback before the minutes are finalised. So - for a start - honest mistakes can be made. But these are meetings where all concerned are not engaged in any form of disputation, and it would seem - particularly in view of the audio transcripts instituted later (a new policy?) by Senator Ian Le Marquand - that such a practice was not appropriate for such an important meeting.

I would not say the minutes differed materially from the transcript although I would be interested in Mr Power's comments on how they differed from what had taken place. But without harking to any great conspiracy here, there may have been different emphases, or items of significance left out. One has only to look at the Minutes of States Meetings (still produced) and compare them with Hansard, or Hansard and JEP reports, or to try and produce a summation of the meetings with Dr Brain, Graham Power and Ian le Marquand to see that some selection and reduction must have taken place, even for a short meeting of 30 minutes.

And this begs the question, which Napier does not ask: why was previous practice deemed sufficient in view of the seriousness of the meeting? Shouldn't a Chief Advisor be aware that more stringent practice was needed, as indeed Senator Le Marquand obviously did later - after, of course, Mr Power had decided to contest his suspension?

Mr Power had part of the letter headed "Disciplinary Code" read to him and was shown the letter. He was then offered, but declined, an opportunity of one hour to"consider his position".

Trying to make sense of this historically, one obvious surmise, given the question about Graham Power "considering his position", was that the expected outcome of the meeting was resignation, rather than suspension, in which case the recording of the meeting would not have been as important as it subsequently became. It is not beyond the bounds of possibility that suspension, which clearly had been prepared for, was not the only option, but was a fall back position in readiness in case Mr Power declined to resign.

In this hypothesis - and I am only putting it as an historical hypothesis, but one which would make sense of the facts, and the brevity of the meeting - that would be probably the real significance of the handwritten notes, rather than an audio transcription being made - normal practice of handwritten notes, put into minutes, was in place because it was not expected that there would be any subsequent meetings after Mr Power's resignation. There the matter would have ended.



Anonymous said...

As always, your analysis is both accurate and objective.
My personal experience is probably as long as yours in such matters and I agree with the points you make.
I would go one step further.
I have always made notes of meetings - particularly the important ones. This is not only in order to preserve some order in the chaos that can sometimes follow difficult meetings (your excerpt from Yes Minister is frighteningly accurate!); it is also a form of self-protection. After a difficult meeting, the official record can often be challenged as incomplete, inaccurate, misleading etc. Sometimes, quite innocently, the official record can be incomplete, inaccurate, misleading etc. - simply because the person making that record has made a mistake. Therefore, the source notes become a vital component in ensuring the final accuracy of the official record and their acceptance by the parties to the meeting as a true and accurate record.
In the case of the "suspension meeting", the source notes were destroyed by the person responsible for producing the "official" record.
As to why this was done - well, there would seem to be only two reasons -
1. A somewhat arrogant (or totally naive) belief that the official record would not be challenged; or
2. The official record was deliberately incomplete, inaccurate or misleading and so the "evidence" had to be destroyed.
Both reasons are inexcusable in the case of the most senior Civil Servant in Jersey.
I wonder what would happen to any police officer who destroyed his notebook deliberately?

Anonymous said...

You might have picked this up already - but, just in case, here is an extract from Graham Power's latest briefing note -

"7. Other issues relating to the integrity of the process have been raised, either by Napier, or in earlier exchanges. For example the admitted destruction of the original record of the suspension meeting has been a matter which has been in the public domain for some time. The document trail indicates that this destruction happened after written notification had been given that the matter was to be the subject of an application to the Royal Court. In some jurisdictions the destruction of evidence prior to a Court hearing may be regarded as a criminal issue. In Jersey it is a “procedural error.”"

The apparent timing of the destruction of the original handwritten notes is interesting.