Proposed Public Records Bill

1
Proposed Public Records Bill

• John Roberts
• Recordkeeping Forum
• June 2002

2
History

• Archives Act 1957
• Archives Bill 1984 (introduced and lapsed)
• Departmental draft Archives Bill 1996
  (distributed for consultation)

3
Background Why change?

• Changed environment for recordkeeping in
  government
• Changes to the
• Technological environment
• Administrative environment
• Legislative environment
• Legislation needs to reflect the environment in
  which it operates

4
Purposes of statutory recordkeeping system

• Democratic accountability (Crown to public)
• Management accountability (Agencies to the Crown)
• Collective memory and historical heritage
• Good management
• These purposes are unchanged but the means of
  achieving them need revision

5
Building on the present Act

• New legislation to include
• Continuation of some existing provisions
• Updating of some existing provisions
• Additional provisions
• Not all elements of the overall regime will be
  statutory

6
Process to date

• Hon. Marian Hobbs appointed Minister responsible
  for Archives New Zealand
• Agenda for the institution
• Stand-alone status as a department
• Increased budget (electronic finding aids,
  government recordkeeping)
• New legislation

7
Development process

• Policy briefings to Minister
• One-on-One agency consultation (esp. special
  interest agencies)
• Ad Hoc Advisory Group (reported to Minister June
  01)
• User communities
• Recordkeeping community
• Officials
• Discussion Paper
• Further stakeholder meetings
• Departmental consultation on draft cabinet paper

8
Discussion paper responses

• Largely positive
• Some confusion regarding
• Meaning of disposal
• Appraisal process
• Existing requirements
• Issues raised around
• Scope
• Access
• Treaty of Waitangi
• Possible compliance costs

9
Current status

• Government decisions on broad policy framework
  (Cabinet decisions 8 April 2002)
• Drafting instructions in train
• Some outstanding ambit decisions on hold due to
  the election

10

• Any questions at this stage?

11
Scope of the legislation

• Two dimensions to scope question
• Which agencies are subject to provisions?
• Which records are subject to provisions?
• Objectives
• Certainty
• Flexibility
• Transparency
• Overarching legislation (issues resolved by
  reference to the Act or under the Act)

12
Agencies

• Intention to be universal, continuing the
  coverage of executive, legislative and judicial
  government
• Flexibility for future circumstances and
  resolution of doubt
• 1957 Act already includes variation mechanism
• Agency definition important to define public
  records

13
Records

• Continue made or received definition
• Certainty of application to all formats
• Archives defined as records in the custody (not
  necessarily possession) of Archives New Zealand
• Variation mechanism for transparency
• Discussion around possible exclusion of some
  classes

14
Recordkeeping

• Public Records Bill, not Archives Act
• Define recordkeeping obligations regardless of
  location
• What are the roles of Archives and agencies?
• Legislation needs to address a lack of clarity of
  expectations and rules

15
Key recordkeeping provisions

• Make and keep obligation on agencies (CE)
• No variation of make and keep
• Recordkeeping standards
• either mandatory or voluntary (issued by Archives
  NZ)
• consultation with agencies
• Continued framework of advice and instruction

16
Disposal

• Includes
• appraisal for retention
• destruction
• alteration or amendment
• transfer of control, management, custody
• Continued regulation of disposal fundamental
• No variation to exclude from disposal regulation
• Report back on disposal under schedule

17
Custody provisions

• Covers control, location, management, and
  disposition
• Continue compulsory transfer at 25 years
• Some special provisions for electronic records
• Set metadata standards
• Maintain electronic records as accessible and
  usable
• Potential for management by agency at Archives
  expense
• Flexibility through
• deferred deposit
• approved repositories

18
Additional provisions

• Unwanted records
• Estrays power to prescribe records
• Continue Government loans provision

19
Access

• Under the 1957 Act
• joint decision by Archives agency
• applies only to records in Archives custody
• based on Official Secrets environment
• OIA Privacy Act have changed the context
• A lot of submissions on this component
• Divergent views between public and officials

20
Access provisions

• Extend access provisions to whole of Govt (all
  records 25 years of age)
• Introduce a presumption of openness after 25
  years
• Make agencies the decision-maker (for whole
  classes)
• Agency to consult with Archives, and give grounds
  for closures
• Decisions registered by Archives NZ
• Agencies defend decisions after 25 years under
  OIA or other pre-existing regime

21
Bits and Pieces

• Advisory Council to advise the Minister (eg on
  appeals)
• Presumption that future laws do not erode
  provisions (unless explicitly stated)
• Archives NZ can nominate responsible public
  office
• National role for Archives New Zealand continued
• Local Government provisions

22
Treaty of Waitangi

• Raised in several submissions
• Focus group nominated by Minister of Maori
  Affairs
• Public record as key underpinning of Crown
  Maori relationship (democratic accountability)
• Issues permeate the entire framework
• Inclusion of overarching provision

23
Compliance provisions

• Continue existing offence provisions, with
  increased penalties
• Difficulty with relying solely on this mechanism
• Need for information to support the system
• Reporting by agencies to Archives
• then by Archives to Minister and to Parliament
• Regular external audit

24
Transitional arrangements

• Ensure continuity of existing arrangements, such
  as disposal authorities, access agreements
• Enabling framework which will develop over time
• Review existing standards
• Ensure support for implementation and adequate
  lead time

25
Key agency responsibilities

• This is not just about the role of Archives New
  Zealand
• Agencies need to
• Make and keep full and accurate records
• (including keeping electronic records accessible
  and usable)
• Obtain authority for disposal
• Make access (release) decisions

26
Agency safeguards

• Appeal mechanism against decisions of the Chief
  Archivist
• Possible variation
• Consultation requirements on Archives
• Agency control of access
• Long-term costs borne by Archives

27
From here

• Drafting there is no draft Bill as yet
• Circulation to departments
• Introduction
• Select committee consideration
• Ongoing work on recordkeeping products

28

• Another chance to ask questions