8.104The 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 2005 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.
8.105Ministers 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
- agency papers and files.
8.106Ministers 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 2005.
8.107The 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 Services, Department of Internal Affairs is available to provide additional advice to Ministers and their staff.
Creating and maintaining records
8.108Ministers must create full and accurate records of their ministerial affairs, in accordance with normal, prudent business practice.
8.109“Records” for the purposes of the Public Records Act 2005 include information held in all digital and physical formats, such as emails or text messages sent or received on devices like mobile phones. This includes official information held on personal devices or communication tools (see paragraphs 2.86 - 2.87).
8.110Systems must be put in place to ensure that all information created or received by a Minister in their official capacity is treated as a public record according to the requirements of the Public Records Act 2005. 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.
8.111The 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 general disposal authorities and those applying specifically to Ministers.
Management of records
8.112Ministerial 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 or changing portfolios.
8.113Ministers' 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 agency briefings), what material may be accepted for deposit as Ministers' papers, and how to destroy the remaining material securely.
Cabinet and Cabinet committee records
8.114The 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 8.136 - 8.138).
8.115The Cabinet Office facilitates the transfer of an official set of Cabinet records to Archives New Zealand. On leaving office, Ministers should check the requirements of the current disposal schedule with Ministerial Services, including whether it requests the deposit of Cabinet records with extensive annotations that may be of historical significance.
8.116Other personal copies of Cabinet papers should be destroyed, in accordance with the disposal schedule, through a secure document destruction process.
8.117All internal agency material should be returned to the originating agency when Ministers leave office, including material classified Confidential or above. No personal copies should be taken. Agency files that concern or comment on individuals should be treated with particular care, and must be returned promptly to the agency concerned.
8.118Former Ministers who wish to have access to internal agency material dating from their time in office should request this under the Official Information Act 1982. It is expected that those handling requests by former Ministers will handle them expeditiously.
Remainder of Ministers' papers
8.119Once the Cabinet and Cabinet committee records and agency material have been addressed, Ministerial 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.
Deposit of Ministers' papers with Archives New Zealand
8.120The deposit of Ministers' papers (public records) with Archives New Zealand is provided for in section 42 of the Public Records Act 2005. 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.
8.121The conditions on which any deposit of Ministers' papers is made are established by agreement between the Minister and the Chief Archivist. Ministerial 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.
8.122When 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 1982. The Chief Archivist is subject to the Ombudsmen Act 1975 and is therefore obliged to ensure that the conditions of access to Ministers' papers are reasonable.
8.123Ministers who have agreed to allow public access to their papers in accordance with paragraph 8.121 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 8.125 - 8.127.
8.124If a Minister dies without having made arrangements for the disposition of their Ministers' papers, Ministerial 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
Records deposited by current Ministers
8.125The most appropriate route for the public to seek access to official information is to make a request under the Official Information Act 1982 to the relevant Minister or agency. 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 more closely connected to the functions of the Minister (see section 14(b)(ii) of the Official Information Act 1982).
Ministers' papers deposited by former Ministers
8.126Where Archives New Zealand, or another repository, receives a request for access to a former Minister's papers, access will be allowed only in accordance with the access conditions agreed with the former Minister (see paragraph 8.121). If the former Minister has set access conditions that mirror the process set out in the Official Information Act 1982, the following process will apply.
- Archives New Zealand, or the repository, 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, or the Cabinet Office, will liaise with the relevant agency about granting access to the Minister's papers. The relevant agency will assess the documents, applying the principles set out in the Official Information Act 1982.
- The outcome of the assessment of the documents will be shared with the Secretary of the Cabinet.
- 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 former Minister will be advised 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.
8.127With 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 or another repository. The Chief Archivist will liaise with the Secretary of the Cabinet, any relevant agency, the Prime Minister, and the Leader of the Opposition (if necessary) about appropriate access arrangements for researchers.
Deposit of personal records
8.128Records 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.
8.129Archives 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.
8.130Ministerial Services can provide guidance and facilitate discussions with Archives New Zealand.
8.131Papers that Ministers do not wish to retain and that are of no interest to Archives New Zealand or any other repository should be destroyed through a secure document destruction process.