The Public Records Act 2005 (the PRA) sets out a number of requirements for public offices and local authorities. The PRA is the basis for the standards and guidance issued by Archives New Zealand (Archives). Disposal Authorities for public offices authorised by the Chief Archivist are another product of the PRA.
The PRA aims at ensuring that information entrusted to public offices and local authorities is created, maintained and made accessible as appropriate. The PRA is not the sole source of obligations for how a public office manages its records. Many pieces of legislation have requirements for how a public office or local authority creates, maintains, gives access to and disposes of information.
The Official Information Act 1982 (OIA), The Local Government and Official Information and Meetings Act 1987 (LGOIMA) and the Privacy Act 1993 are three acts with significant implications for the information held by a public office or local authority.
The OIA makes demands of the ability of an organisation to locate, collate and interpret the information it holds. It is difficult to predict what a public office might receive an OIA request about, however this should not be a reason for the over-retention of records. See Archives’ recently published Risk management guide for disposal of records for our view on this.
Section 18(e) of the OIA acknowledges that a request may be refused if the document (record) does not exist, and section 18(f) acknowledges that a request can be refused if it involves a substantial amount of collation or research. Despite these provisions, a refusal on either of these grounds can reflect poorly on the organisation.
Archives recommends that a refusal under section 18(e) should cite the Disposal Authority that authorised the disposal of the record. If the disposal of the record has been authorised, and the disposal action is documented the reputational impact of a section 18(e) refusal is mitigated.
Our Risk management guide for disposal of records details the risks of over-retention and the benefits that a strong disposal regime brings. An organisation that has a comprehensive understanding of the information it holds is positioned to answer requests about that information. This also allows the organisation to reduce the amount of research needed to answer an OIA request (thereby reducing the chance of a section 18(f) response).
On occasion Archives receives OIA requests relating to information held (or presumed to be held) in the public archives held by Archives. Unless the public archives are controlled by Archives (i.e. the records were created and transferred by Archives in its own right) these are not processed as OIA requests. In these circumstances the requestor can end the OIA request and continue the research through Archives’ Remote Reference Service or continue the OIA request with the relevant controlling public office.
Similarly, if a public office receives an OIA request and believes that the information is likely to be held in the records that the public office transferred to Archives it is still the obligation of the public office to respond. The record is considered to remain under the control of the public office.
If a public office needs to consult records held at Archives New Zealand it can request the temporary loan of the files through the Government Loans Service. Records can also be viewed in the Reading Room.
LGOIMA is generally very similar to the OIA in the responsibilities and requirements it places on local authorities. The above advice relating to OIA requests is applicable to LGOIMA requests as well (except for the reduced likelihood of Archives dealing directly with a LGOIMA request as Archives does not accept transfers of local authority records barring exceptional circumstances).
The Privacy Act 1993 sets out a number of principles and requirements for public offices and local authorities. In particular Privacy Principle 9 sets out that personal information held by an agency should not be kept for longer than necessary. Sometimes this can be perceived to be in conflict with the retention periods set out in a Disposal Authority authorised by the Chief Archivist.
It is significant that Privacy Principle 9 applies for the period that the information can be lawfully used. This means that a public office or local authority can retain the information if a lawful use exists beyond immediate everyday use of the record (the period of ‘administrative use’).
The following example might help illustrate this:
General Disposal Authority 6 states that personnel files should be retained for seven years from the date of the last information entry. Section 130 of The Employment Relations Act 2000 requires that an employee’s ‘Wages and Time Record’ be accessible by a (former) employee for six years from the time where the record was required to have been created (i.e. during the employment of the individual).
In this example there is still a legal use for the ‘Wages and Time’ record for six years after the employee has left the organisation and the record has been closed. General Disposal Authority 6 is therefore compliant with the Privacy Act.
If a legislative change (or a new interpretation of an existing requirement) affects the retention of public records contact Archives New Zealand as soon as possible at rkadvice@dia.govt.nz.
Section 18(2) of the PRA allows for the disposal of public records when required by another Act. Using section 18(2) as a singular basis for the disposal of records is not recommended as good recordkeeping practice. If a new requirement necessitates a change in how an organisation disposes of records you can apply to amend your Disposal Authority:
http://www.records.archives.govt.nz/working-with-us/amending-and-existing-disposal-authority/
Archives recommends that Section 18(2) is used as a basis for changing a Disposal Authority. It should not be used to ignore a Disposal Authority. When a new requirement necessitates a change in a Disposal Authority Archives will work with the public office to implement.
Amending a Disposal Authority will also assist with identifying any other Disposal Authorities affected by the new requirement.
At its core, section 18(2) ensures that the PRA will not conflict with any other legislative requirements for how a public office or local authority handles information. One of the core aims of the PRA is to assists public offices and local authorities in managing their information responsibly and in line with both best practice and the law.
Public offices and local authorities work in a changing environment. These changes will affect how a public office handles the information it holds. Archives can assist with advice on making needed changes and assisting a public office to make changes in compliance with the PRA.