June 2001
SUBMISSION TO ARCHIVES NEW ZEALAND ON THE DRAFT DISCUSSION PAPER ON THE PROPOSED PUBLIC RECORDS BILL
Section 1 - Concerns:
a. The process leading to the development and circulation of the draft Discussion (the Draft) paper did not permit sufficient time for stakeholders to fully debate the issues raised.
The Draft was distributed in late May, however supporting documents "Custody and Local Government" were not received until mid June.
b. The Ad Hoc Committee (the Committee) was convened by ANZ to debate the proposition that was ultimately circulated as the Draft. The result posed more questions than it answered, and was short on firm proposals.
The Committee time would have been better spent in formulating options for consideration rather than posing wide, and sometimes incomprehensible questions.
c. The Draft was released with a caveat that the material should not be circulated other than to our Council (executive).
Our compliance with this edict effectively denied access to our general membership that includes some very experienced and respected practitioners.
d. The Committee has now been decommissioned, before submissions have been received and/or discussed.
The Committee, to complete their task effectively, should be/ have been afforded the opportunity to review submissions and be party to the development of the ensuing Government paper.
e. A vast amount of work was expended, by stakeholders and others, on the development of the 1996 draft. The result of that exercise appears to have been arbitrarily ignored.
Some bullet points appear to have been ‘lifted’ direct from the 1996 Draft BUT no rationale is offered for discounting that document. Many consider that by using the 1996 draft, as a base paper, and circulating it with annotations of proposed revisions a more appropriate start point for discussion would have been achieved.
Under The Approach Taken (para 14) the Draft states that three options were considered. Who decided to discount the first two, without explanation, in favour of the ‘blue sky’ approach? Was this a committee decision? What was the rationale?
f. The Draft, circulated in the latter part of May, soliciting submissions by Jun 22nd, will result in the presentation of a paper to Government seeking their approval to continue. This paper is being prepared and presented some 5 working days after submissions close.
What cognisance will be taken of submissions, and what impact will submissions have on the preparation of the proposed draft bill?
g. The reference to ‘other international experiences’, without documentation negates their value and/or relevance.
Normal process would lead one to expect that references to source information would be appended to the Draft.
References quoted are specific to Australia and do not include examples of best practice from UK, Canada and ICA. Reasons for these exclusions are not stated.
It is suggested that the ‘Australian Experience’ is accepted practice BUT no information is provided relating to where it is being used and by whom?
Conclusion:
Many practitioners found the Discussion Draft confusing and somewhat unintelligible.
The expectation from the Draft, was answers – not questions.
The Draft, in isolation, is innocuous – however when read in conjunction with the committee papers there are suspicions that adoption could be compared to the ‘thin edge of the wedge’ syndrome.
The consultation process is flawed when compared to the requirements identified by the Court of Appeal and procedures established in Local Govt
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Section 2 - Responses to Key Questions:
KQ1. Should new legislation embrace all Government activities (without exception)
Yes. But Role & Function of ANZ should make provision to include "records – less than 25 years old" viz. from agencies that change status or cease to exist.
KQ2. Should the ambit be variable and if so, how?
Generally No. The resolution of Minor problems should constitute part of the day-to-day operations of the Department, with major and/or contentious situations being referred for ministerial negotiation/decision." Exclusions or Covered" should be embedded in law and, the former, not applied without due investigation. Orders-in-Council support to great a flexibility and are likely to encourage their application for questionable reasons.
The problem of identifying which agencies are included or excluded can be overcome through publication of their status by ANZ – possibly through their website.
KQ3. Should the effects of subsequent laws be limited to explicit references?
Archives legislation impacts on all agencies. ANZ, in their advisory capacity, must provide advice in matters within their purview, in any revision or development of other legislation.
KQ4. Should any records be exempt from the ambit of ‘public records’? How should any exclusion be achieved?
Recent concerns regarding Census papers, suggest all records should be covered by the legislation without exemptions. The existing exclusion list should be reviewed to assess currency, and any future provisions regularly reviewed to assess value of continued exclusion. The matter of exemptions will be of vital interest to contributing departments who will require ANZ assistance and guidance in identifying the criteria to be applied. User education will be essential.
KQ5. Should it be possible to vary the operation of the Act over particular classes of records?
The act should encompass all records. Variations should be considered on formal individual application.
KQ6 What provisions should be made for national collections (for example the National Library)?
A clear definition of operational records as opposed to collections needs to be promulgated. ANZ must have the authority to recover and protect material resulting from closure (disbandment) of the collecting agency.
KQ7. What definitions would best accommodate electronic records?
The 1957 definition of a public record states ‘regardless of capture media’. It is argued that the exclusion of Electronic Media is by personal interpretation rather than prescription. The specific inclusion of Electronic Media is likely to be restrictive in light of the realistic expectation of the development, in the future, of ‘other’ capture media. History can/does repeat itself.
KQ8. To what extent, if any, is it appropriate to empower Archives to recover compulsorily or otherwise Government records of national significance that are currently held privately?
The phrase "of national significance" is restrictive; provision should cover ALL government records. The decision on recovery action must be at the discretion of the Chief Archivist.
KQ9. Should any legislative provisions for recovery of Government records be retrospective?
Yes.
KQ10. What kind of regime should be put in place in relation to the recovery of records in which Government ownership is disputed?
Crown Law intervention as arbitrator with prosecution being the acceptable course of ‘last resort’.
KQ11 What are the appropriate roles of the Archives and agencies in respect of records disposal policy and practice?
ANZ should develop policies relating to disposal. Authorisation for disposal is, and should remain the sole responsibility of the Chief Archivist.
Clarification and clear definition of the terms ‘Disposal and different responsibilities’ need to be provided. It is suggest that current provisions permit ‘Transfer or Disposal’ however what is not clear is the possibility that records which have been sentenced for ‘Disposal (Destruction) are ‘offered’ to another interested party. Without some method of identifying this action, the re emergence of such records in future is a potential problem.
KQ12 To what extent should disposal policy, including key objectives of appraisal, be included in Public Records legislation?
Provisions from 1957 Act (and 1996 draft) should remain extant. Specific Policies relating to application are the operational responsibility of ANZ, who are responsible for their dissemination.
KQ13 In what way should disposal through transfer of ownership of public records be considered in legislation, if at all?
See response KQ11
Past examples of government records being deemed intellectual property of agencies, and included in their sale, should be viewed as ‘in violation the Act’ and dealt with accordingly. Government support for ANZ in these circumstances is essential if records are to be protected
KQ14 What recordkeeping requirements should be specified?
ANZ have an advisory, educational and monitoring responsibility for ensuring records created are managed and ultimately disposed of in a legally acceptable manner. The requirement to create and/or maintain an acceptable paper trail of business practices is the province of either the Audit Department or State Services under their legislation.
KQ15. What should be the respective roles of Archives and government offices in the public recordkeeping regime?
ANZ have an advisory, educational and monitoring responsibility for ensuring records created are managed and ultimately disposed of in a legally acceptable manner.
Government offices responsibility is for the care of records, they create or receive, while in current and semi current use until such time as they may be offered for transfer to Archives or disposal.
KQ16. Should new legislation include a statutory obligation to make and keep full and accurate records?
This responsibility rests with CEO’s and should be encapsulated in the State Services legislation.
KQ17. Should existing powers of entry and instruction be preserved?
Yes.
KQ18. What new provisions could be introduced to accommodate electronic records?
At no stage does the Discussion Document estimate, or quantify percentage of records uniquely/solely captured in/on Electronic Media (and the ANZ interpretation of that term) as opposed to records created Electronically then printed and filed in the traditional manner. Overseas there are indications that information captured in other than hardcopy (paper) is but the tip of the iceberg.
Electronic Media is an alternate capture media, and apart from unique
handling storage and access requirement should be dealt with, as Operational matters, not aspects of legislation.
See also response to KQ7 above
KQ19. What kind of flexibility would need to be included?
Matter for Operational Policy not legislation.
KQ20. Should there be powers to set mandatory recordkeeping standards and to advise and assist?
Yes. However with this response comes the expectation that departments will be required to adopt recordkeeping standards and that, in addition to advice and assistance, ANZ will have the mandate to monitor compliance.
KQ21 To what extent should standards themselves, or matters to be taken into account in determining standards, be prescribed in legislation?
Operational matters not aspects of legislation.
KQ22. What should be the relationship between the proposed Public Records Bill, Official Information Act and Privacy Act?
In matters relating to Archives and Recordkeeping these acts, identified above, should not take precedence over the Public Records Act. Where these acts should equally apply to records held by National Archives, restriction – access provisions should be negotiated before deposit. It must be recognised the provisions of the Privacy Act cannot be applied to records created prior to its adoption in 1993.
KQ23. What consistencies should there be and how could these best be achieved?
See response KQ22 above.
KQ24. Is the period of 25 years (or on transfer to Archives) an appropriate threshold for the archival period?
Yes.
KQ25. Should Archives take a role beyond registering access decisions? If so, why?
Yes, in accepting its standard setting mandate, ANZ assume greater involvement. Departments will have divergent views on decisions it is essential that professional advice and guidance be provided to ensure a standard approach is achievable.
KQ26. What modifications, if any, of the access regime are necessary or desirable to take account of the increasing use of electronic records?
None. Records regardless of capture media should all be subject to the same regime. ANZ should protect access rights by negotiating ‘standard’ access provisions.
KQ27. In what manner should the protection of culturally sensitive information be recognised or promoted in legislation and good recordkeeping practices? Are any particular provisions required, or can these issues be handled using generic provisions?
Cultural sensitivity has a myriad of interpretations. That, which is sensitive to one group, may be totally accepted to another. To reach agreement depositing agencies, in concert with ANZ, should apply realistic access provisions. ANZ staff will require to be conversant with aspects considered to be sensitive in order that they can offer appropriate advice and guidance.
Such provisions, guidelines are more relevant to Operating Procedures than legislation.
KQ28. What other roles, functions and responsibilities should be specified in the Act?
Refer response to KQ1.
KQ29. What role, if any, should Archives have in leadership and co-ordination across the entire national archives field?
Cannot be embedded in legislation.
KQ30. Should Archives be precluded from undertaking a co-ordination role within the New Zealand archives community?
No; ANZ should, as major national institution, work to achieve this status. Acceptance, from and by the profession, stakeholders and practitioners is a accolade to be won, not given through legislation.
KQ31. What accountability should Archives have for material in approved repositories, and how should the "approved" status be controlled, it at all?
It must be recognised that ANZ have the absolute responsibility for granting, or removing, Approved Repository (AR) status. ANZ must be given a mandate to ensure national standards are applied within an AR, and their compliance with such standards requires to be monitored on a specified cycle, annually, bi-annually, tri-annually etc. AR status is to be granted, not taken and more especially may provide a home for unique collections such as sound and/or film in extension of ANZ holdings.
The criteria for achieving AR status must be clearly articulated, as should be the penalty incurred through non-compliance.
KQ32. Should there be provision in legislation for a Board or Council, and if so what role should it play?
Yes. The statement that "typically such bodies exercise powers which in New Zealand are vested in the Chief Archivist" is questioned The establishment of a Board or Council must be embedded in legislation (as was the Archives Advisory Committee in the 1957 Act), with a mandate to provide ‘external’ advice to both the Minister and Chief Archivist.
KQ33. If the Archives are to have a role in setting mandatory standards for Government recordkeeping, what role should it have in monitoring and enforcing the implementation of those standards?
See response KQ20.
KQ34. Should agencies other than Archives New Zealand be involved in or responsible for administration of a compliance regime, and if so, to what extent?
No. If the Public Records Act contains clauses that require compliance ANZ, as the national standard setter, must have sole monitoring responsibility. Standard setting and compliance monitoring should form part of the negotiated performance agreement between the Minister and ANZ.
KQ35. If other agencies or bodies are involved what should the role of Archives be?
In all matters of standard setting and compliance with the Public Records Act, ANZ must take the dominant role. However, at times ANZ will be required to work in concert with, and provide advice to, other agencies where their roles overlap, viz. State Services Act, OIA, Privacy et al.
KQ36. What provisions should be made for local government records?
The question has been overtaken by the recent announcement of a review of the Local Government Official Information and Meetings Act (LGOIMA). In this review ANZ should play a major role in providing advice and interpretation of the Public Records Act and its relationship to LGOIMA, together with support and assistance, if accepted, in the development of appropriate standards.
Alison M Fraser
President
