Public Records Bill – Third Reading

The Green Party is supporting this bill as a step forward towards making the deposit of public records in the National Archives more systematic and comprehensive. The bill imposes on public bodies, including local bodies, the obligation to create and preserve records and pass them on to the archives. The bill also rightly gives the Chief Archivist wide powers to make sure that public bodies are compliant, including significant powers to check files and advise deposit. It is also clear from the bill that the Chief Archivist is statutorily independent, which is good.

The bill gives the Chief Archivist wide powers to help overcome problems with agencies, either through the agencies’ lack of competence or because the agencies are too reluctant to give over materials. However, there are still too many let-outs for Government departments, which under this bill still have fairly unrestrained powers to stop the public seeing material by either deferring deposit for a long period or even indefinitely, or restricting access over a similarly long period. There was a lot of controversy over this issue in submissions made to the Government Administration Committee, but the committee’s report does not even mention that fact. That is not acceptable. The committee is not required to agree with submitters, but it does have a responsibility to at least refer to their significant arguments. This is particularly the case when submitters are informed people such as Dr Kathryn Patterson, the head of the National Archives from 1991 to 1998, and — separately — Dr Brad Patterson, a university academic who has been president of the Archives and Records Association of New Zealand. The issues they raised are critical to the successful use of the archives. They are issues that are important to all archivists, historians, academics, journalists, family researchers, and even politicians — anyone who is doing serious research with a historical dimension.

The bill gives too much power to heads of departments, as if they were benign and would not restrict access unnecessarily. As Dr Kathryn Patterson said of her time heading Archives: “My experience has been that administrative heads have a tendency to regard restrictions as the rule rather than the exception. The Chief Archivist requires a stronger role in these clauses as the referee or arbiter.” Clause 22(1)(b) does give heads of department the power to defer transfer to the archives “on any conditions that the administrative head and the Chief Archivist consider appropriate;”, but Dr Kathryn Patterson writes that, in her experience: “There can be difficulties reaching agreement with administrative heads of controlling public offices and it is possible that a stalemate may be reached.” She states: “The Chief Archivist’s view should carry weight.”

Then there are the general powers under clause 44 for heads of public bodies to restrict access to records, in consultation with the Chief Archivist — and, again, what will happen if there is disagreement between the two? It is true that clause 50 provides for a review by the Chief Archivist 10 years after a deferral of a deposit, but, despite that, there is nothing to stop the head of department extending the restriction for another period. As Dr Brad Patterson stated: “There would seem to be no curb on the indefinite renewal of restrictions. Surely, there should be some bottom line.” It is also true that under clause 29 the Chief Archivist does have inspection powers, but he or she cannot look at any materials “that carry security classifications or are restricted by other legislation…” without the administrative head’s permission. There are so many outs in this legislation that are unwise and unnecessary. As Dr Brad Patterson submitted, the Chief Archivist is a “very senior statutory officer” and should be able to be trusted.

The Official Information Act will apply to individual requests for information already in the archives, as the Minister has just stated, but individuals generally want to search through a whole lot of stuff in the archives, and it can be costly and very difficult to ask for a huge archive to be made available under the Official Information Act. It needs to be written into the bill that the Chief Archivist has the power to apply an Official Information Act test when inspecting archives, and that he or she can be like the Ombudsman and override heads of departments and force the deposit of a whole archive or a section of an archive.

The Official Information Act is not mentioned in this bill in this particular respect and the Greens will be moving an amendment during the Committee stage to have it put in. There should be a clear onus on heads of departments to deposit. Dr Brad Patterson submitted: “There should be some sort of strong statement in these provisions that public records of more than 25 years old will be open access, save in those few instances where good reason for withholding can be demonstrated to the Chief Archivist’s satisfaction.” Clause 22 also has what is in practice a very loose security excuse for deferring the deposit of materials in the archives. Under clause 22(1)(d)(ii) any Cabinet Minister has powers to defer transfer “for a specified period.”, and the period is not limited if the transfer would, as is stated in clause22(6)(a), “prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand;”.

In practice, this means embarrassing material is withheld not because it is of any security nature whatsoever but because it is politically embarrassing for the agency concerned. We have seen a graphic example of this in the Hugh Price case covered recently in the Dominion Post. Mr Price, a retired Wellington publisher, has spent 2 years squeezing material out of the SIS, bit by bit, by going back time and time again to the Ombudsman. The material, which was at first withheld and later released under pressure from the Ombudsman, clearly had nothing to do with the security of New Zealand, although security was the reason that SIS director, Richard Woods, gave for withholding it. The matter relates to security police harassment of Mr Price and his colleagues 52 years ago, when Mr Price was a young student. The SIS director’s actions in this case have not been governed by public interest in the slightest. Clearly, Mr Woods’ only concern has been to protect the service from embarrassment at the disclosure of the wrongdoing of one of his predecessors, even though this wrongdoing, which destroyed the careers of several innocent New Zealanders, was committed by agents over 50 years ago and is the sort of thing that is of historical interest to researchers today — something that New Zealanders can learn from and should be in Archives.

One of the security grounds for withholding material under clause 22(6) is that it would: ” (b) prejudice the entrusting of information to the Government of New Zealand on the basis of confidence by — (i) the government of another country or an agency of such a government;”. This means that not only does the New Zealand agency concerned have a veto over the release of the supposedly security-sensitive material but that all kinds of foreign agencies do, too. Take, for example, official material regarding the Viet Nam War or East Timor, where the New Zealand Government and its overseas allies did disgraceful and deceitful things that would be in the records. Such material would be embarrassing to release, both for the New Zealand foreign affairs ministry and for those of the United States and Australia — not to mention the embarrassment of the SIS and its overseas counterparts like the FBI, the CIA, and the Australian Security Intelligence Organisation. I have seen historical material on East Timor withheld by our Ministry of Foreign Affairs and Trade purely because it would embarrass the ministry and the Government of Indonesia.

Under clause 22(7) any deferral of deposit on security grounds can be renewed by a “responsible Minister”. The bill contains no specified period for which the deferral can be renewed, and no limit on the number of deferrals — and, of course, the SIS actually does keep rolling over the deferral of deposit of virtually all its archives in 25-year blocks. The Chief Archivist is shut right out of this process regarding material defined as security sensitive, even though we know — and I have given examples — that security agencies will misuse the security let-out in this bill. There has to be an independent look at whether security-sensitive material should be withheld from Archives. It could be done by the Chief Archivist or, as is proposed by the Australian Law Reform Commission, by a separate independent body that looks at classified materials to stop their being withheld illegitimately. The Australian Law Reform Commission also proposes that security-sensitive material be re-reviewed every 5 years.

On another matter, the committee had an interesting submission from historian Charlotte Macdonald, who was worried about the present destruction of census materials making it much more difficult for future historians to analyse the material in their own way. The fact that individuals’ personal details should not be disclosed — and this is right — does not mean that the census forms and all the information itself should be destroyed. The other challenge before us, Archives New Zealand, and the National Library that was mentioned by submitters is how to preserve digital records. We may have to discuss that matter further.


Parliament, Third Reading Debate