8.92 The Public Records Act 2005 establishes a regulatory framework for information and records management throughout the public sector. “Public records” for the purposes of the Public Records Act are records (information that is compiled, recorded, or stored in any form) that are created or received by public offices (including Ministers) in the conduct of their affairs.
8.93 Ministers create and receive a wide variety of public records while performing the roles and functions of ministerial office. These records are defined as “Ministers' papers” under the Act. They include:
- records of portfolio responsibilities and other assignments;
- Cabinet and Cabinet committee records (Cabinet material);
- briefings and reports to the Minister, and ministerial correspondence; and
- departmental papers and files.
8.94 Ministers also receive and hold records in their non-ministerial capacity; for example, correspondence with constituents, party political records, and private or personal papers. These are not public records, and are not covered by the Public Records Act.
8.95The following paragraphs provide guidance on the proper management of public records held by Ministers during their time in office, and guidance on the secure treatment of those records on leaving office. Ministerial and Secretariat Services, Department of Internal Affairs is available to provide additional advice to Ministers and their staff.
8.96 Ministers must create full and accurate records of their ministerial affairs, in accordance with normal, prudent business practice.
8.97 “Records” for the purposes of the Public Records Act includes information held in various formats, such as emails or text messages sent or received on devices like mobile phones.
8.98 Systems must be put in place to ensure that all information created or received by a Minister in his or her official capacity is treated as a public record according to the requirements of the Public Records Act. This means that records are organised and maintained in a way that allows them to be accessed for as long as they are needed, and that they are disposed of in a way authorised by the Chief Archivist. In particular, Cabinet material and material classified Confidential or above should be filed separately from other information.
8.99The Chief Archivist issues disposal authorities, which allow public offices to transfer control of or destroy public records in specified circumstances. Disposal authorities can be of general or specific application, and are published on Archives New Zealand's website. Ministers may not dispose of, or authorise the disposal of, their public records, except in accordance with such a disposal authority issued by the Chief Archivist.
8.100 Ministerial and Secretariat Services provides guidance to Ministers’ offices on the proper storage of public records that are held by a Minister and their proper disposal on leaving office.
8.101 Ministers' offices are encouraged to base their filing practices on this guidance, to ensure that when Ministers leave office each category of information can be identified easily. Guidance on leaving office will indicate what material should be returned (such as departmental briefings), what material may be accepted for deposit as Ministers' papers, and how to destroy the remaining material securely.
8.102 Archives New Zealand receives an official set of Cabinet records from the Cabinet Office. The convention of access to documents of a former administration gives former Ministers ongoing access to all Cabinet material to which they had access while in office (see paragraphs 8.130 – 8.132).
8.103On leaving office, Ministers should check the requirements of the current disposal schedule with Ministerial and Secretariat Services, including whether it requests the deposit of Cabinet records with extensive annotations that may be of historical significance.
8.105 All files and papers that are internal departmental material should be returned to the originating department when Ministers leave office, including material classified Confidential or higher. No personal copies should be taken. Departmental files that concern or comment on individuals should be treated with particular care, and must be returned promptly to the department concerned.
8.106Former Ministers who wish to have access to internal departmental material dating from their time in office should request this under the Official Information Act. It is expected that those handling requests by former Ministers will handle them expeditiously.
8.107 Once the Cabinet and Cabinet committee records and departmental material have been addressed, Ministerial and Secretariat Services will advise on the disposal of the remaining Ministers’ papers (public records). Any information classified Confidential or above should be returned to the security agencies, or to the author of the document, as appropriate. Some of the material with long-term historical value may be accepted for archiving by the Chief Archivist. The remainder may need to be destroyed securely.
8.108 The deposit of Ministers' papers (public records) with Archives New Zealand is provided for in section 42 of the Public Records Act. Depositing these public records in this way ensures their secure storage, the monitoring of agreed access arrangements, and the provision of research facilities, and allows the Minister ongoing access to the records.
8.109 The conditions on which any deposit of Ministers’ papers is made are established by agreement between the Minister and the Chief Archivist. Ministerial and Secretariat Services will help draw up the agreement. Unless the Minister agrees otherwise in writing, the papers remain in the ownership and control of the Minister.
8.110 When setting conditions of access to Ministers' papers deposited with Archives New Zealand, Ministers should ensure that the access conditions reflect the sensitivity of the information and are no less robust than the conditions would be if the documentation were held by another entity that is subject to the Official Information Act. The Chief Archivist is subject to the Ombudsmen Act and is therefore obliged to ensure that the conditions of access to official documentation are reasonable.
8.111Ministers who have agreed to allow public access to their papers in accordance with paragraph 8.109 will also be involved in assessing any requests for access to those papers. Further details of the procedure to be followed are set out in paragraphs 8.113 – 8.115.
8.112If a Minister dies without having made arrangements for the disposition of their Ministers' papers, Ministerial and Secretariat Services will discuss with the Minister's family the lodging of any material with Archives New Zealand, and conditions on access to it.
Assessing requests for public access to Ministers' papers
8.113 The most appropriate route for the public to seek access to official information is to make a request under the Official Information Act to the relevant Minister or department. For that reason, where a request is received for access to a Minister's papers deposited at Archives New Zealand by a current Minister, the request will be transferred to the relevant Minister for a decision, on the basis that the information remains closely connected to the Minister (see section 14(b)(ii) of the Official Information Act).
8.114 Where Archives New Zealand receives a request for access to a former Minister's papers deposited at Archives New Zealand, the Chief Archivist will allow access only in accordance with the access conditions agreed with the former Minister (see paragraph 8.109). If the former Minister has set access conditions that mirror the process set out in the Official Information Act, the following process will apply:
- Archives New Zealand will liaise with the former Minister (if required by the former Minister's access conditions), so that the relevant papers can be identified.
- With the former Minister's consent, Archives New Zealand will liaise with the relevant department about granting access to the Minister's papers. The relevant department will assess the documents, applying the principles set out in the Official Information Act.
- The Chief Archivist will liaise with the Secretary of the Cabinet about the outcome of the assessment of the documents.
- The Cabinet Office will advise the Prime Minister of the request and, where access is sought to documents of a previous administration not currently in government, the Leader of the Opposition.
- The Chief Archivist will advise the former Minister as to whether or not there appears to be good reason for withholding access to any of the documents.
- The final decision as to whether or not access will be granted to the Minister's papers will rest with the former Minister concerned.
8.115 With the agreement of the former Minister, special arrangements may be entered into from time to time to provide researchers with access to Ministers’ papers deposited with Archives New Zealand. The Chief Archivist will liaise with the Secretary of the Cabinet, any relevant department, the Prime Minister, and the Leader of the Opposition (if necessary) about appropriate access arrangements for researchers.
8.116 Records created or received by Ministers in their personal capacity, in their capacity as a member or leader of a political party, or as a member of Parliament are not public records. These papers may be retained by Ministers on leaving office, or deposited with Archives New Zealand or another repository.
8.117Archives New Zealand provides guidance on the protocols and procedures for depositing papers with it. There are no additional factors that Ministers need to take into account when agreeing conditions of access to such records with Archives New Zealand.