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Di Dickson: The Public Records Act, the Privacy Act, the Official Information Act, and the Royal Com

Up until mid-2018, I worked as the researcher for the Ministry of Education Historic Claims Unit for a period of five years. I have a degree in criminology and education and I worked in archives and records for government and academia for a period of 15 years. During the five years I worked for the Ministry of Education Historic Claims Unit, I assisted with the provision of information for Privacy Act requests and OIA requests and provided research assistance and advice.


Anecdotally, many survivors of historic abuse in state care talk of the information standards set by these three Acts consistently not being met by a number of different government departments. There have been many complaints of missing information, delayed information, overly -redacted information, etc. These complaints have related to both individual files and governmental files.


Those complaints are backed up by my own experiences of working in government. I saw many instances of external and internal people being told that information did not exist, when in fact it did. It should be noted that people who work for government are generally prohibited from criticising their own government department by their employment contract and the State Services Commission Code of Conduct. I no longer work for government and part of that reason is so that I can speak freely on some of the issues surrounding historic abuse in state care, particularly those related to my area of knowledge - archives and records. Although whistleblowing legislation exists, in reality, most of the time people are risking their jobs (and livelihoods) if they speak out.


One of the single most important tools for the Royal Commission will be the use of historical records and archives from government departments. These records can be used to back up and verify the testimony of survivors and also to provide a clearer picture of the relevant policies of government. I would like to talk about the background of the Acts noted above and some of the issues surrounding records and archives.


The Official Information Act 1982

The below is taken from the Ministry of Justice’s current website:


“The OIA allows New Zealanders to have access to information that enables their participation in government, and hold governments and government agencies to account.”


And


“The OIA allows New Zealand citizens, permanent residents, and anyone who is in New Zealand to request any official information held by government agencies.”


To put it simply, it is a basic human right in New Zealand, and has been so for 37 years, that anyone can ask any question of any government organisation, and expect a considered, truthful reply, generally within 20 working days. There are some grounds for denying the release of information; and these must be explained when the request is denied. And if you are not happy with the reply, you can take it to the Ombudsman and get them to check the accuracy


The Privacy Act 1993

The Privacy Act 1993 was passed 11 years after the OIA Act. In the context of historic abuse in state care, the principle that applies to those care leavers asking for their records from government is Principle 6.


Principle No 6 says that anybody is entitled to ask any government agency for a copy of any information that the government department holds about them and expect a considered, truthful reply, generally within 20 working days. There are some grounds for denying the release of information, and these must be explained when the request is denied.


The Privacy Act is the most effective way for individuals to ask for their historical records form the relevant government department - generally either the Ministry of Social Development, Education, or Health. Again, if you are not happy with the reply, a complaint can be laid with the Office of the Privacy Commissioner and they can be asked to investigate the request and reply.


The Public Records Act 2005

The Public Records Act was passed in 2005 and replaced the Archives Act of 1957. It was inevitable that after the implementation of the OIA and the Privacy Acts, a far better system of managing the records of government was required. After the Public Records Act was passed, a ten-year plan was implemented by Archives NZ to assist in the embedding of records management principles into government. There was an initial five-year period of consultation and the setting of standards, followed by a five-year period of assessment and auditing of government departments.


The Public Records Act increased the penalties for noncompliance It is an offence to dispose of a public record without due authorisation, even through negligence; an individual may be fined $5000 for doing so, a government department can be fined $10 000. To this date, 14 years after this Act was passed, nobody has been charged under the Public Records Act, and no penalty has yet been applied, even though there have been many offences obviously and openly committed.


What does the Public Records Act say?

Basically

1. If you work for government in anyway at all, you need to make a record of what you do. That record could be in any format - paper or electronic document, email, text, video etc. Once the record has been created, it can only be disposed of by eventual destruction or transfer to Archives NZ as a permanent record. Decisions about which records should be kept or destroyed should have already been made in the form of Retention and Disposal Schedules and Appraisal Reports, which outline the various records expected to be created by that department and outlines the decision. If the record is not included in the Schedule, it must be retained until it is appraised, it cannot be destroyed until then.


2. That record, once created, has to be maintained and stored properly, for the life of the record - either its destruction date, or its transfer to Archives NZ date. It should be available, if required - this includes all Privacy Act requests and OIA requests.


3. The record should be able to be trusted. It should be treated with respect. It should be protected from unauthorised use for its whole life. It should be easily findable and it should be available, on request. A record cannot be destroyed without a recorded decision as to why it was destroyed, and then a record should also be made of the destruction. Then these records would, if requested, also be available for Privacy and OIA requests. The current situation.

The Public Records Act does not make any distinction between paper or electronic records; a record is a record, no matter its format. However when searching for historic records, it should be noted that most of these records are paper files. It is only in the last couple of decades that the emphasis shifted towards electronic records.


People might think that all electronic files are automatically saved. This is not necessarily true. Many situations can result in the deletion of electronic files, such as updating of systems, use of shared drives, and the noncompliance of individuals. This situation is only worsened by the perception that all electronic records are saved. For example, an email has to be actually placed within an electronic filing structure to become easily retrievable, it is not an automatic process. Though the email may be automatically ‘saved’, if not filed, it will probably never be found again, particularly after a number of years, or if the staff member has left.


It should be noted that most of the individual files held by government will not have been transferred to Archives NZ and instead will be held by the relevant government department. There are some notable exceptions such as the Campbell Park records, which were transferred in bulk to Archives NZ upon the closure of the school in the late 80s.


Individual records

There can be different reasons that an individual record may or may not exist in response to an information request, and a few are listed below.


1. They were never required to be kept. This is mainly true for educational records. Currently no individual student school records need to be kept once the student leaves school for the last time. This policy obviously needs review and discussion.


2. They may have been kept for the length of time required according to the relevant Retention and Disposal Schedule and then legally destroyed. An example is an individual Special Education file - it can be legally destroyed once the student reaches 31 years old.


3. They may have been lost or destroyed illegally. Most paper files held by government are stored in offsite storage facilities, and individual files are found by searching electronic databases. A name can be misspelled, a file put in the wrong box, a file ordered back, and not replaced - there are many ways to lose files in government. The file may still exist, but just not be visible or findable through an electronic search. Some also may just have been accidentally thrown out. These can all be considered to be illegal disposal because negligence is not considered a defence under the Public Records Act.


Government files and records

Government files and records are the records that are required to be kept of the work that the government department does. The different functions of the government department and the records which are created are generally outlined in the Appraisal Report and the Retention and Disposal Schedule for the government department. These are public documents which are available on the Archives NZ website.


Not all records created by a government department are considered to be of sufficient archival value to be transferred to Archives NZ and kept forever. A very vague rule of thumb is that generally only 10% of the records will be considered worthy of permanent retention (this will vary between different departments.)


Records considered to be of strategic importance, records that shape policy, and records that show evidence of the machinery of government, are considered to be of more importance than more mundane, operational records. These decisions of the value of the files and records are also included in the public documents.


For example, the records surrounding the formation of a policy providing transport for the disabled would be kept, the files of actually delivering and providing the transport to the disabled would not be kept. That is all good and well until society finds out that there have been some issues concerning individual transport providers (an example is the case of Robert Burrett) and that all but the most basic employment records have been destroyed. In the Burrett case, the destruction of records greatly hampered the investigation: good recordkeeping may have resulted in an earlier apprehension of Mr Burrett.


With regards to historic claims, in general much of the evidence against staff members, low level policy making decisions resulting in unsafe staffing appointments, details of casual staff appointments, etc. were considered low level operational records and have already been destroyed.


Most of the relevant files made by government departments prior to 1989 will have already been transferred to Archives NZ. The names of the files are generally available on the Archives NZ website / Archway. There are still some files at Archives NZ that have not been listed on Archway and are effectively invisible to an outside researcher or another government department. There will also be files of relevance held at the government departments that were accidentally not included in the transfer and will also be effectively invisible to outside researchers and, in this instance, to Archives NZ.


Most of the relevant files made by government departments post-1989 will generally still be held by the relevant departments. The process of transferring files to Archives NZ is long and expensive and often not a priority. There is also, quite rightly, a reluctance to transfer files to Archives NZ that could be of use in possible future litigation. The process of borrowing files back is not only time consuming but, in the past few years, Archives NZ introduced a new regime whereby only ten files a week can be borrowed back for free per government department, any more being charged for per file. For a large Privacy Act request or an Official Information Act request, which requires a search of a large number of files, this can prove to be costly.


These files still held internally by government departments are most at risk of disposal. The Retention and Disposal Schedules that cover the various government departments and schools are all a number of years old. They are required to be reviewed at ten year periods to ensure current relevancy.


The Schools Retention and Disposal Schedule is a good example of this problem. The last schedule was written in 2006 and has been extended a number of times. This means that the rules governing which records need to be kept at a school (-and this includes all residential and special schools,) were formulated 13 years ago and can hardly be regarded as current. Even so, it is completely legal to apply the schedule to school records now, and destroy records that could be extremely useful as evidence. This is current practice. There are also many school records which have been destroyed illegally according to the Public Records Act.


The General Disposal Authorities covering staff records were last reviewed in 2013 - six years ago - and are not due for review until 2023. These records clearly state that staff personnel files can be destroyed after a seven year period INCLUDING the files of people who have been dismissed for serious misconduct or criminal offences. As instances of abuse may take many years to surface, this is obviously problematic and needs to be reviewed. The issues of historic abuse were well known six years ago and still the decision was made to not save the records of those who may have dismissed for serious misconduct or criminal offences. From a record-keeper’s point of view, it is very difficult to understand that particular reasoning.


Conclusion

Records contribute to the transparency and accountability of the government. But to do that properly, they have to be created, maintained, stored - and then given back when required. This has not happened properly far too often for care leavers. Government should stop their destruction of relevant records until the rules have been revised. Enough has been lost already, and if we don’t act now, many more records will be lost.


I also suggest that the Royal Commission, care leavers and their affiliated groups, and other interested parties are consulted in the preparation of any upcoming Retention and Disposal Schedules that contain any relevance to state care or child abuse. They certainly have the requisite knowledge and interest.


Instead of just accepting from government that records have been ‘lost’, care leavers should consider making a complaint to the Privacy Commissioner. The Privacy Commission should be able to investigate and see if it is a case of illegal or legal disposal. And if enough people ask them to investigate, the breadth of the problem should be better known. There is strength in numbers. If enough people report loss of their records, and it can be seen to be illegal disposal, surely there must be a need for government to act upon this, to find out how it happened, and to prevent it from continuing to happen.


The same is true with an Official Information Act reply; go to the Ombudsman’s Office and register a complaint there as well. They should also be able to investigate as with the Privacy Commission and see if there are any breaches with hopefully similar results.


A willingness to prosecute, both individuals and government departments, for offences under the Public Records Act would probably greatly assist better compliance.

But it is not clear with whom you should lay a complaint under the Public Records Act.

Should you go to the police and ask for them to investigate a crime? Should you inform Archives New Zealand, the Privacy Commission or the Ombudsman and ask them to lay a complaint for you? At present, this is very unclear.


But what is the point of making an action a crime if no-one is ever penalised for doing it? Where is the deterrence factor? Personally I have always suspected that the first prosecution under the Public Records Act will initiate from a private individual, not government.


There is one final issue that I would like to raise.


When the state decides to take children away from their families, for whatever reason, and place them in state care, they are agreeing to act as the parents of these children.

Most parents that I know keep their children’s records - even if they don’t know that they are doing it. Photos of outings, photos of milestones, letters, poems, stories, pictures, awards—these all make up a person’s history. When a child is taken away from their family and placed into state care, this often stops. Instead the file that is gathered about the child by government is about the child being a ‘problem’ that needs to be fixed, rather than a complete human being.


This is not right, if the state is legally acting as a parent then it should be built into the Retention and Disposal Schedules that the information gathered should reflect the function of the state as a parent, not just as a social worker, health professional, teacher, etc.

The government, the state, needs to do a lot better for these children, their families and whanau. As a government, they have failed in their duty.


They, also, have failed as a parent.

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