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Making Access Decisions Under the Public Records Act

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Contents

1. Introduction
2. General Access Principles
3. The Process
4. Formalising the Access Decision
5. Typical Restrictions on Access
6. Process for Determining Access Conditions
 

Guidelines for all Public Offices

How should public offices assess the need for access conditions on records that have been in existence for 25 years, or are being transferred to Archives New Zealand or an approved repository? What are the issues to consider?
 

1. Introduction

1.1 - Under the Public Records Act 2005, all public archives transferred to Archives New Zealand or to an approved repository, and all public records that have been in existence for 25 years, must be available for public inspection unless:

1.2 - There are two main access regimes for public records:

1.3 - A restriction therefore refers to a period of time during which researchers must apply to the controlling public office for permission to access the records, rather than a period during which no access is possible.

1.4 - Public offices should only place restrictions on records if there are good reasons, under the OIA or Privacy Act or other relevant legislation 1, for withholding some of the information in the records.
 
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2. General Access Principles

2.1 - There must be a good reason for any access restrictions.
 
Government aims for openness in providing access to records 2, and so access must not be restricted unless there is a good reason to do so. Public offices must specify the grounds for restricting records under the Public Records Act 2005, and these grounds are entered in an access register which can be searched by members of the public. The grounds outlined in section 5 of this Advisory Notice provide some examples of good reasons for restricting access. In general, a good reason may be said to exist where the public interest in withholding records outweighs the public interest in making records available.

2.2 - Restrictions should be applied sparingly.
 
Restrictions on access should only be imposed as an exception. Public offices should make a reasonable effort to identify which of their records are likely to contain sensitive information, and apply restrictions appropriately. Large classes of records should not be restricted if only a few records contain sensitive information.

2.3 - Restrictions should have a limited time span.
 
Restrictions should always be for a finite period, as sensitivity reduces over time.

2.4 - Restrictions should be applied consistently.
 
Access conditions should be consistent with the criteria in the OIA, Privacy Act, and other relevant legislation. Information which would be provided if requested under OIA should not be restricted. Access conditions should also be consistent with similar records already transferred to Archives New Zealand or an approved repository, and with similar records created by other public offices.

2.5 - Restrictions should be easy to implement.
 
Once records have been transferred to Archives New Zealand access conditions will need to be implemented by Archives New Zealand staff. Restriction statements should be clear and unambiguous, so that Archives staff are not required to make subjective judgements about which records are restricted. Restrictions which require Archives staff to examine the content of items in order to determine their status are difficult to administer and should be avoided. Decisions on which researchers should be able to access records should be made on a case-by-case basis by the responsible public office, rather than by specifying who is allowed access beforehand.
 
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3. The Process

3.1 - Public offices should consider access issues as an integral part of their recordkeeping policies and procedures. Access conditions which are set under the Public Records Act should be developed as part of an overall consideration of a public office's access policies.

3.2 - As far as possible, access decisions should cover a whole class or series of records. It is not expected that public offices will be able to examine each individual record to determine whether it should be open or restricted, and so decisions need to be based on an understanding of the information which is likely to be found in the records as a whole.

3.3 - When records are 25 years old, or are about to be transferred to Archives New Zealand or an approved repository, the controlling public office must determine access conditions if they have not already done so.

3.4 - The steps in the public office's decision-making process should be:

  1. Read this advisory notice.
  2. Consult internally to determine whether the records are likely to contain sensitive information.
  3. Make an interim access decision.
  4. Consult with Archives New Zealand (if a restriction is proposed).
  5. Confirm or amend the access decision.

3.5 - When making decisions on access, it is important to:

3.6 - Note that if a restriction is placed on records, members of the public can still request access under the OIA or Privacy Act. All such requests must be dealt with by the controlling public office. It is therefore in the public office's interest to ensure that records are not unnecessarily restricted, to minimise the number of OIA and Privacy requests that are received.

3.7 - Remember that the access conditions will be entered in an access register which is available to the public, so they will be subject to public scrutiny.

3.8 - When restrictions on access are imposed, the specific conditions relating to the restriction must be detailed in the Access Authority Form. The following must be specified:

3.9 - Access restrictions can be withdrawn or varied at any time by the controlling public office, if it becomes clear that the restriction is no longer appropriate. Access restrictions should be monitored on an ongoing basis to ensure that they are kept to a minimum, and records are opened when possible. The public office should complete a new Access Authority Form for any change, and submit it to Archives New Zealand.
 
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4. Formalising the Access Decision

4.1 - Archives New Zealand must be consulted about any proposed access restrictions. Following consultation, the access conditions should be documented on the Access Authority form, which is available from Archives New Zealand offices, as listed below, or the website www.archives.govt.nz

4.2 - The Access Authority should be signed by the administrative head of the public office, or by a senior manager acting under delegated authority. Once approved by the public office, the form should be submitted to Archives New Zealand, which will register the access conditions in the public access register. A copy of the signed form will be returned for the public office's records.

4.3 - For ease of referral and accountability purposes, the public office should retain its Access Authority form in its official recordkeeping system.
 
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5. Typical Restrictions on Access

5.1 - This chart outlines eight standard grounds for restricting access to records, and suggests appropriate periods of restriction. Note that these are guidelines only and each set of records should be assessed on its merits. Members of the public can still gain access to records during the restriction period, but need to obtain permission from the responsible public office first.
 

Grounds for Restriction Examples Suggested Period 3
To protect commercial interests. - Due Diligence Reports
- Business planning for commercial activities
- 'Commercial in confidence' material
10 Years, then open
To protect the integrity of political and administrative processes. - Confidential minutes, reports and recommendations
- Confidential advice by public servants and Ministers
- Cabinet papers which have not been publicly released
10 Years, then open (25 Years for Cabinet Papers 4 )
To protect personal or public safety, and maintain the rule of law. - Information on methods of crime detection
- Records documenting security measures
20 Years, then open
To protect legal professional privilege. - Legal opinions
- Confidential legal advice on legislation which is still in force
To be advised 5
To protect national security and international relations. - General military planning
- Security and intelligence files
- Background papers on foreign leaders and governments
30 Years, then open
To prevent the disclosure of sensitive personal information. - Detailed employment records
- Disciplinary case files
- Applications for financial assistance
70 Years, then open
To prevent the disclosure of highly sensitive personal information. - Child welfare files
- Medical records
- Probation records
- Police incident and offence files
100 Years, then open
To maintain an existing confidentiality agreement. - Sensitive information supplied by another government
- Information gathered with an explicit or implicit undertaking of confidence, such as survey forms
30 Years, then review
To protect traditional knowledge. - Sensitive information regarding people, places, or cultural practices that would not normally be made public 70 Years, then review

 
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6. Process for Determining Access Conditions

Process for determining access conditions diagram
 

Notes

1. Examples of statutes that affect access to specific records include the Criminal Records (Clean Slate) Act 2004, the Adult Adoption Information Act 1985, and the Inland Revenue Act 1974.

2. See, for example, sections 4 and 5 of the OIA, sections 3 (f) and 44 of the Public Records Act 2005, and the Policy Framework for New Zealand Government-held Information.

3. The restriction periods begin on the date of the last action on the record.

4. The current 25 year restriction for Cabinet papers is an exception to these guidelines, to conform with the requirements of the Cabinet Manual.

5. At time of writing, Archives New Zealand was discussing an appropriate period for such restrictions with the Crown Law Office. If you have records that contain legally privileged information, please contact Archives New Zealand.
 
 
For further advice, contact Archives New Zealand offices in:
 
Wellington 04 499 5595
Auckland 09 270 1100
Christchurch 03 377 0760
Dunedin 03 477 0404
 
Email: rkadvice@archives.govt.nz
Website: http://www.archives.govt.nz
 
 
Issued 2003/Revised December 2005
 
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