Chapter 15: Issues of compatibility

In this chapter we examine two matters:

(a)The relationship between the OIA and the Public Records Act 2005;

(b)The relationship between the OIA and LGOIMA.

Public Records Act 2005

The legislative scheme

The Public Records Act 2005 (PRA) sets up a recordkeeping framework for government agencies and local authorities to manage and archive their records. The ambit of the Act is broad. A record is defined as being:799

Information, whether in its original form or otherwise, including (without limitation) a document, a signature, a seal, text, images, sound, speech, or data compiled, recorded, or stored, as the case may be,–

(a)in written form on any material; or

(b)on film, negative, tape, or other medium so as to be capable of being reproduced; or

(c)by means of any recording device or process, computer, or other electronic device or process

The definition of “record” is technology neutral. The PRA as a whole draws no distinction between paper and electronic documents and does not require that information be held in one form or the other.

The PRA imposes an obligation on every public office and local authority to “create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice, including the records of any matter that is contracted out to an independent contractor.”800 These offices and authorities are required to maintain their records in an accessible form until destruction is authorised under the PRA or another enactment.

An important part of the Act’s requirements is that agencies subject to the Act retain records in a format that is accessible now and in the future. Archives New Zealand has developed standards to ensure that electronic records are maintained in a format that allows access to them in the long term.

Emails can be problematic in that they are usually addressed to an individual rather than to an agency. Their management can involve particular difficulty due in part to their volume, and in part to the fact that many contain personal as well as “official” matters.801

Agencies are required to retain records for 25 years, unless disposal is authorised in writing in advance by the Chief Archivist.802 Archives that are 25 years old must be transferred to the possession of Archives New Zealand or an authorised repository.

One of the purposes of the PRA is to ensure good record management, in order to enable the public to hold government to account. This is elaborated on in the Archives New Zealand 2008/2009 Annual report:

One of the indicators of a strong society is having evidence of decisions and actions of government. By keeping good government records, and making those records accessible, the public can be confident that the government is accountable and records of their rights and entitlements are available when needed.

The PRA interacts with the OIA and LGOIMA in two significant ways. First, as reflected in the statement above, the PRA supports the official information legislation by ensuring that there is evidence of government actions and decisions, forming the basis of the “information” which can be requested. Compliance with a good records management system should improve the experience of officials having to reply to requests for official information. One agency said:

Ensuring that all [our authority’s] information is recorded inside its recordkeeping framework with its requisite metadata not only goes a long way towards PRA compliance, it makes assessment and completion of each OIA request a more efficient and effective process.

Another said:

Compliance with the Public Records Act 2005 is highly relevant to compliance with the Official Information Act; the two are intertwined. Where documents are well managed and there is a high level of compliance with the Public Records Act, it is much easier to respond to requests.

Secondly, given that the PRA recognises what agencies must keep and what can be disposed of, the PRA defines the boundaries of information held by an agency. This contributes to setting the boundaries of what information can be requested. If it has been validly disposed of under the PRA, it will obviously not be available under the OIA or LGOIMA, unless, presumably, officials have retained the information in their memories.



In our issues paper we noted considerable variation in agency awareness of requirements of the PRA. Agencies that told us that they had sound information management systems in place tended to say that this assisted their ability to respond to OIA requests. Many agencies seemed to be in a period of transition towards full compliance.

Compliance with the PRA is continually improving. To meet its obligations under the PRA, Archives New Zealand has initiated an audit programme to audit the recordkeeping of central government bodies subject to the Act. The cycle of audits is now well advanced.

Reform issues

In our issues paper we asked whether any statutory amendments were required to ensure better alignment between the PRA and the OIA. In chapter 10 of this report we deal with the issues of metadata and backup systems. In this chapter we raise two further matters.

Aligning the definition of record and information

"Information” in the OIA and “record” in the PRA are not identical.

"Information” is not defined in the OIA and LGOIMA but it has been held that the concept is a wide one, befitting the purpose of both Acts. Information is not limited to paper documents, but includes information held in electronic and other formats. Most significantly it includes “knowledge” – information that has not been reduced to writing.

As we have seen above, the definition of “record” in the PRA is also wide, in that it covers information held in all formats. The select committee that reported on the Public Records Bill addressed the issue of the definition of “record”, responding to concern from some quarters that it could require agencies to retain “every draft of a document, every ‘post-it’ note or text message for 25 years”. The Committee was satisfied that adequate mechanisms were built into the Bill to allow irrelevant and trivial information to be disposed of. The Committee did note however that the broad definition had been retained to ensure “comprehensive coverage” of the new Act. However, “record” in the PRA does not cover information which has not been reduced to writing or other visual form. Obviously, unrecorded information is not a “record”.

We do not think that the difference between “record” in the PRA and “information” in the OIA and LGOIMA is problematic. “Information” under the OIA is wider in that it includes unrecorded information. The Ombudsmen told us that this is a good thing:

It is important that unrecorded information continues to be covered [by the OIA] because otherwise agencies could circumvent the intent of the legislation by opting not to record information.

We agree, and recommend no change be made to the definition of “information” or “record”.

R132The terms “information” in the OIA and LGOIMA and “record” in the Public Records Act 2005 should remain unchanged.

Requesting information that has not been kept in accordance with the PRA

One requester had the following complaint:

It was disappointing to ask for some records under the OIA, find out they had been deleted, complain to the Chief Archivist, and then find that basically nothing happened. There should be some form of sanctions that can be taken against government departments that hide information through deleting it.

Destruction of records contrary to the PRA’s requirements is already an offence.803 But the problem extends wider than this: it is not just a question of the destruction of information. If record-keeping is poor, information may be unable to be located, or the task of collation may be so large as to lead to a refusal under section 18 of the OIA. Moreover, if advice or information is supplied orally between officials, rather than being written down as normal prudent business practice requires, it may be said in response to a later OIA request that the information “does not exist” (section 18(e)) or that it “is not held” (section 18(g)).

White notes that the “power of the OIA is critically dependent on the quality of the public record, including both the information itself and its accessibility”.804 The proper functioning of the OIA thus depends on proper compliance with the PRA. Now that the PRA has bedded in and agencies have had time to adjust their practices to comply with it, the question may have to be asked whether there should be some form of redress or sanction if an agency has not kept information in accordance with the PRA with the result that an OIA request is unable to be met.

We received a number of submissions on this issue. Some thought that non-compliance with the PRA should be able to be the subject of a complaint to the Ombudsmen.

Archives New Zealand, in their submission to our issues paper, said:

Whenever Archives New Zealand receives a complaint that unauthorised disposal of records has occurred, an investigation is undertaken. Archives New Zealand is developing an enforcement policy that starts with providing education and tools to assist agencies to achieve compliance with the Public Records Act. Action will be escalated and could result in court action in cases where non-compliance is systematic and no effort is made to improve information management.

The Ombudsmen indicated that they deal with some such cases under the Ombudsmen Act 1975, and consult the Chief Archivist as appropriate. But they do not think that enforcing the PRA should be a function of the Ombudsmen under the OIA.

However we wonder whether there may be options for linking the OIA and the PRA, and put forward two possibilities. One is a mechanism whereby the Ombudsmen might notify the Chief Archivist in cases where a request is refused under OIA sections 18(e), (f) or (g). The other would be to include a provision like section 29B of the OIA (addressing the relationship between the Ombudsmen and the Privacy Commissioner) requiring consultation between the Ombudsmen and the Chief Archivist. We prefer the first of the two possibilities because it is less resource intensive and probably more effective. Notifying the Chief Archivist would enable remedial action to be taken concerning the agency in question.

We thus recommend that section 18 of the OIA should be amended by adding a subsection to the effect that, if information is refused by an agency under the OIA on the ground that it does not exist or cannot be found (section 18(e)), or cannot be made available without substantial collation or research (section 18(f)), or is not held by the agency (section 18(g)), the Ombudsmen may notify the Chief Archivist. We do not anticipate that such notification would invariably follow: the Ombudsmen would have a discretion to do so, and be likely to exercise it only in cases of serious or persistent infringement. If there is to be the kind of oversight agency that we recommend in chapter 13, that agency might also keep under review the relationship between the OIA and the PRA.

R133Section 18 of the OIA and section 17 of the LGOIMA should be amended to provide that the Ombudsmen may notify the Chief Archivist if a request is refused on any of the following grounds:

(a)the information does not exist or cannot be found (under section 18(e) of the OIA or section 17(e) of the LGOIMA);

(b)the information cannot be made available without substantial collation or research (under section 18(f) of the OIA or section 17(f) of the LGOIMA);

(c)the information is not held by the agency in question (under section 18(g) of the OIA or section 17(g) of the LGOIMA).


Material on open access

The Chief Archivist has brought another matter to our attention. When material has been archived, members of the public are often unclear whether to access it under the PRA or the OIA. Section 58 of the PRA provides, somewhat unhelpfully, that public records transferred to the Archives “are not subject to the OIA just because they have been so transferred”. No doubt the status of material as “open access” would be a ground for refusing an OIA request under section 18(d) – the information is “publicly available”. But Archives NZ believes that more is needed, namely a provision which expressly provides that once a record has been placed on open access in the Archives the public right to access it renders the OIA inapplicable.

Yet we doubt whether that is necessary. If a requester requests the information under the OIA the relevant agency will simply direct the requester to the Archives. The “publicly available” reason for refusing a request allows that now; the existence of a provision that such information is not subject to the OIA would lead to exactly the same result. We have therefore decided to make no recommendation for amendment on this issue.

Public Records Act 2005, s 4.

Section 17(1).

See Nicola White Free and Frank: Making the Official Information Act 1982 Work Better (Institute of Policy Studies, Wellington, 2007) at 122–126.

As White notes at 257 – 258, section 27 of the Public Records Act 2005 is ambiguous as to whether departments can make their own choices about what is necessary to keep to meet the standard of “normal prudent business practice”, or whether records can only be destroyed with the authority of the Chief Archivist. At 122, some of her interviewees comment that “the reality is that practical people make practical judgments every day about what is sensible to keep and file.”

Public Records Act 2005, s 61.

White, above n 801, at 119.