A Guide to the Public Records Act

 

Contents

1. Introduction
2. A Brief Guide to the Public Records Act
2.1 Compliance Framework
3. Public Offices and the Public Records Act
4. Local Government and the Public Records Act
5. Other Public Records Act Provisions
6. Public Records Act: Self Assessment Recordkeeping Checklist
7. Further Reading and Advice
8. Index to the Public Records Act
 

1. Introduction

This publication is intended as an introductory guide to the Public Records Act 2005 for public offices and local authorities.
 
It is a basic interpretation of the core elements and principles of the legislative framework for public offices, local authorities and other organisations subject to the Public Records Act.
 
This is not the Act; if you would like to view any aspect of the legislation in detail, we recommend that you read the Act itself. A link is provided in section 7: Further Reading & Advice.
 
This guide has three elements;

• A guide to the Public Records Act addressing the key principles and exploring responsibilities that apply to both public offices and local authorities;
• A self assessment recordkeeping checklist;
• An index to areas covered in the Public Records Act.
   

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2. A Brief Guide to the Public Records Act

What are the objectives of the Public Records Act?

The objectives of the legislation are to:

• Promote the accountability of government organisations to the Crown, and of the Crown to the public through good recordkeeping;
• Enhance public confidence in the integrity of government records;
• Enhance and promote our historical and cultural heritage; and
• Establish a mandate for Archives New Zealand and the Chief Archivist.

The Public Records Act introduces key recordkeeping requirements.
 
The focus of the legislation is the effective management of all public sector and local authority records. This includes new and current records (i.e. documents, emails, correspondence, etc.) and recordkeeping practices in all government organisations, rather than just the end-process of archival transfer.
 
The Public Records Act establishes a recordkeeping framework, which has clear requirements.
 
The core recordkeeping requirements are:

• The requirement to create and maintain records
  Under the Public Records Act, all public offices and local authorities are required to create and maintain full and accurate records in accordance with normal, prudent business practice. This includes activities carried out by contractors on a public sector organisation's behalf. These records must also be accessible over time.

 

• Authority of the Chief Archivist is required to dispose of public records and local authority 'protected records'
  The Public Records Act requires public offices and local authorities to have the Chief Archivist's authorisation before disposing of their public records or local authority 'protected records'. Disposal is the archival term for the ultimate fate of records; usually either by destruction or transfer to archives. Disposal as defined by the Public Records Act can mean the transfer of control of the records, alteration, discharge or sale of a record, not just the destruction of a record.

Who's covered by the Public Records Act?

The Public Records Act covers recordkeeping at all levels of government, including both central and local government. All public offices and local authorities are subject to the requirements of the Public Records Act.
 

Public offices

Public offices are the legislative, executive and judicial branches of government. They include all:

• Public Service Departments;
• Other State Services;
• Crown entities, including:
  • Crown Research Institutes;
  • Crown Entity Companies;
  • Schools Boards of Trustees;
  • Tertiary Education Institutions;
  • District Health Boards;
  • Other Crown Owned Entities & Subsidiaries;
  • Offices of Parliament; and
  • State-owned enterprises.

This list is not exhaustive; the full definition of public offices is given in section 4 of the Public Records Act and a list of public offices can be found on the Organisations Covered page of our website.

Local authorities

Local authorities include:

• Local Government Organisations;
• Regional Councils and Territorial Authorities;
• Council-Controlled Organisations and Trading Organisations.

A definition of local authority organisations is provided in the Local Government Act 2002.

What is a record?

• The Public Records Act defines 'records' as any information that is compiled, recorded or stored in any format. Electronic records (email, etc.) should be treated according to content not format, and should be managed in a recordkeeping system;
• 'Public records' are defined as records that are created or received by a public office in the conduct of its affairs. (N.B. this does not mean records that are available for public inspection, but rather records created in the course of a public office's normal business practice.)
• Local government records are defined as records that are created or received by a local authority in the conduct of its affairs. 'Protected records' are the classes of local government records declared to be protected by the Chief Archivist, as outlined in the Local Government Schedule.

 
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2.1. Compliance Framework

Recordkeeping audits of public offices

The Chief Archivist is required to commission independent audits of recordkeeping in public offices.

• Audits commence in 2010 and each public office will be audited every 5-10 years.
• Audit costs will be borne by Archives New Zealand.
• A report on audit results will be presented to Parliament annually from 2010.

Mandatory and discretionary standards

The Chief Archivist can set mandatory standards and instructions, as well as discretionary standards and guidelines, to ensure that recordkeeping outcomes are met. (See section 7: Further Reading & Advice.)
 

Inspection powers

The Chief Archivist can, after giving reasonable notice to a public office or local authority, inspect the records or archives held in their custody.
 

Direction to report on recordkeeping

The Chief Archivist can direct a public office to report on any aspect of its recordkeeping practice, or the public records that it controls.
 

Annual Report on Recordkeeping to Parliament

The Chief Archivist must report annually to the Minister Responsible for Archives New Zealand, on the state of recordkeeping within public offices. This report will be presented to Parliament.
 
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3. Public Offices & the Public Records Act

Create and Maintain

All public offices must create and maintain full and accurate records in accordance with normal, prudent business practice. This includes activities carried out by contractors on a public office’s behalf. These records must also be maintained in an accessible format over time.
 

Disposal process for public offices

No person, or public office, may dispose of public records except with the authority of the Chief Archivist. Disposal should be a systematic, routine and well-managed part of your organisation’s recordkeeping.
 
A public office can:

• Get a disposal authority from the Chief Archivist for records specific to its functions (a disposal authority is legal permission from the Chief Archivist to dispose of government records); or
• Implement applicable general disposal authorities (GDAs) issued by the Chief Archivist for disposal of common classes of records (e.g. finance, human resources, corporate services, etc.).

Disposal, in relation to a public record is defined as:

• Transferring control of the public record to the Chief Archivist or another public office;
• Altering the public record (alteration of a record includes any change, e.g. any textual change, or deleting record metadata or information);
• Discharging the public record (which means cancelling the record's public record status); or
• Selling the public record.

Any disposal process involving moving records off-site or the destruction of records should be well documented and carried out securely and recorded in the relevant register.
 

Public comment on disposal authorities

The Public Records Act allows for public input into recommendations for the disposal of public records. Disposal recommendations are made available on Archives New Zealand's website for public comment before a disposal can be authorised by the Chief Archivist.
 

Transfer of public records to Archives New Zealand

Public records of archival value should be transferred to Archives New Zealand at a point no later than 25 years, unless:

• They are transferred earlier (records are often transferred 10 years after closure);
• Records are authorised for disposal by destruction; or
• Transfer is deferred and recorded in the deferred transfer register.

Deferred transfer

The deferred transfer of records is where records over 25 years are still required for on-going business use, and continue to be retained by the controlling office. Deferred transfers require a written agreement between the Chief Archivist and your public office and are recorded in the deferred transfer register.
 

Sale of public records

A public office can also apply to the Chief Archivist for permission to sell public records as a disposal process.
 

Discharge of public records

Public records may also be disposed of by discharging them. A public record that is discharged becomes the property of the person to whom it is discharged. It ceases to be a public record and the rules for managing public records no longer apply to it.
 
A record being considered for discharge must be an open access record that is not in current use, except where a record is discharged into the custody of the individual who is the subject of a record (e.g. a medical or personnel record).
 
The Chief Archivist may authorise in writing the discharge of a public record only if:

• The release of the public record is consistent with the principles of the Privacy Act 1993 and is not subject to a request under the Official Information Act 1982;
• The administrative head of the controlling public office agrees to the public record being discharged; and
• The person to whom the public record is to be discharged is not a Minister of the Crown, the Chief Archivist, an Archives New Zealand employee, the Archives Council, a member of the Archives Council, or an employee of the controlling public office.
   

Access regime for public offices

All records 25 years or older must be classified as either open access or restricted access, regardless of where the records are held. If the records are transferred to Archives New Zealand before the 25 year limit, their access status must be declared as part of this process.
 
Public offices must note that;

• The Public Records Act guarantees the public’s right to free inspection of open access records.
• Access to restricted access records will be determined through the Official Information Act, Privacy Act or other relevant legislation.
• Restricted access public records will be recorded in the restricted access register.

Compliance regime

All of the provisions listed in the compliance framework 2.1 apply to public offices.
 

 
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4. Local Government & the Public Records Act

The Public Records Act provides a less prescriptive framework for local authority records; local authorities, however, must:

• Create full and accurate records and maintain them in an accessible form over time; and
• Retain control of, and provide access to, their local authority archives and classify their access status as either open or restricted.

Local authority protected records

The Chief Archivist can declare classes of local authority records to be protected. This list of protected records is commonly called the Local Government Schedule. They cannot then be disposed of without obtaining the authorisation of the Chief Archivist, who may require these records to be transferred to Archives New Zealand.
 
Local authorities must ensure that the protected records they hold are:

• Identified as protected records;
• Protected and preserved adequately;
• Maintained in an accessible form; and
• Not disposed of without a disposal authority.

Disposal and retention of protected records

If a local authority wants to dispose of protected records it must write to the Chief Archivist. This communication must state:

• The intention to dispose of a protected record;
• The identification of the protected record; and
• Information about how the local authority intends to dispose of the protected record.

The Chief Archivist will either authorise disposal or direct the local authority to transfer control of the protected record to Archives New Zealand; or direct the local authority to retain the records as a local government archive.
 

Local authority non-protected records

If records are not protected, then local authorities may dispose of them without the authorisation of the Chief Archivist. A local authority will still need to appraise records which are not protected records, to decide how long they need to be kept for business purposes and/or whether they have long-term archival value.
 

Records status classification & access

A local authority record becomes a local authority archive when it is no longer in current use or has been in existence for 25 years, or more, and must be classified as either open access or restricted access, regardless of where the records are held. A local authority record can be classed as restricted if:

• There are good reasons to restrict public access to the local authority record, stipulated in any relevant standard or advice issued by the Chief Archivist; or
• Other legislation requires the local authority record to be withheld from public access.

The maximum restriction is 25 years but can be renewed if necessary.
 

Free public access

The Public Records Act gives the public a right to view unrestricted local authority archives, free of charge.
 
Local authorities must provide free inspection of any archive that has not been restricted, as soon as is reasonably practicable after a request for access has been made. Local authorities may charge for “value added” services such as photocopying, research, transcription etc., consistent with the general powers available to local authorities under the Local Government Act 2002.
 

Recordkeeping compliance

Local authorities will not be audited. However, they can be inspected by the Chief Archivist to assess whether recordkeeping standards are being met and are required to meet any standards issued by the Chief Archivist.
 
Our intention is to work constructively with local authorities to resolve any recordkeeping issues.
 

 
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5. Other Public Records Act Provisions

Treaty of Waitangi (Te Tiriti o Waitangi)

The Public Records Act recognises and respects the Crown's responsibility to take appropriate account of the Treaty of Waitangi (Te Tiriti o Waitangi).

• The Chief Archivist is required to consult with Māori when carrying out the functions and processes enacted under the Public Records Act;
• The Public Records Act requires at least 2 members of the Archives Council to have knowledge of Tikanga Māori; and
• The Public Records Act recognises that an iwi-based or hapu-based repository may hold public archives for safekeeping as an approved repository.

Approval of repositories

A relevant body (such as a museum, library, or other archive or iwi-based or hapu-based repository) may be approved by the Chief Archivist to hold public archives. An approved repository is subject to:

• inspections by the Chief Archivist;
• any relevant standards or conditions issued by the Chief Archivist;
• the requirement to maintain properly any public records in its care; and
• transfer of public archives to Archives New Zealand, or another repository, if directed by the Chief Archivist.

An approved repository may have its status revoked or amended if deemed necessary by the Chief Archivist.
 

Offences and penalties under the Public Records Act

Any person who commits an offence against the Public Records Act by:

• negligently damaging a public record; or
• negligently disposing of or destroying a public record; or
• deliberately breaking any provisions of the Public Records Act or failing to comply with its provisions

is liable for a fine of up to $5000.
 
Any organisation or institution that commits an offence as outlined above is liable to a fine up to $10,000.
 
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6. Public Records Act: Self Assessment Recordkeeping Checklist

 

1. Records Management Policies & Procedures
We have a recordkeeping policy in place under regular review
We have records management procedures in place under regular review
We have a records management training programme in place for our staff
We have records management induction programmes for all new staff
Our managers understand and implement the recordkeeping systems in their sections
We have a dedicated records management team in place, and/or have a senior manager who is responsible for recordkeeping
We have policies in place to assess whether we are complying with the Public Records Act
We have a policy for all formats of records (paper, born digital, scanned records, email, voice and instant messaging, etc.)
2. Create & Maintain Full and Accurate Records
We capture full and accurate records of our business activities
We implement all relevant standards for recordkeeping and review them regularly
We do not hold any public or protected records not in accessible form (e.g. legacy electronic records)
We ensure our records are maintained and accessible, for example by:  - Using a recordkeeping framework  - Storing our records securely with acess controls  - Using a functional file-plan  - Using an Electronic Document Records Management System for our electronic records  - Version control for electronic documents  - Monitoring email and other electronic communications and assessing them for retention  - Monitoring our electronic records for obsolescence and migrating records of longer-term value
We have recordkeeping processes that prevent unauthorised disposal or tampering with our records
We have a disaster plan and have made provisions for business continuit
3. Disposal, Transfer & Access
We have classified the access status of our archives as open or restricted
Open access records in our control are available for inspection by members of the public free of charge
Public Offices
We have current and ongoing disposal authorities from the Chief Archivist
We use approved general disposal authorities for common classes of records
We routinely transfer closed files of archival value to Archives New Zealand
Local Authorities
We only dispose of our protected records according to the Local Government Schedule
We appraise our non-protected records for long-term archival retention regularly
We routinely transfer closed files of archival value to our local authority archive

 
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7. Further Reading & Advice

What support and advice is available to public offices and local authorities?

Archives New Zealand aims to work with and support you as you make the transition to the new recordkeeping framework. This support will include:

• regular recordkeeping forums
• Continuum Resource Kit
• General disposal authorities
• regular updates on new developments
• Advice from our teams

For further advice, contact Archives New Zealand:
Wellington:
Phone 04 499 5595
 
E-mail:

• Recordkeeping enquiries: rkadvice@dia.govt.nz

Web Site: http://archives.govt.nz/advice
 
Auckland:
 
Phone 09 270 1100
 
E-mail: auckland@dia.govt.nz
 
Christchurch:
 
Phone 03 377 0760
 
E-mail: christchurch@dia.govt.nz
 
Dunedin:
 
Phone 03 477 0404
 
E-mail: dunedin@dia.govt.nz
 

Further reading

The full text of the Public records Act is available at: http://www.legislation.govt.nz/act/public/2005/0040/latest/DLM345529.html?search=ts_act_public+records_resel&p=1&sr=1
The Continuum resource kit including mandatory and discretionary standards can be accessed online at: http://archives.govt.nz/advice/continuum-resource-kit
 
Information on recordkeeping forums can be accessed at: http://archives.govt.nz/advice/training-and-events/government-recordkeeping-forums-0
 
Regular updates on new developments can be found at: http://archives.govt.nz/advice/current-projects-and-news
 
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8. Index to the Public Records Act

Access
Access to public records [ss. 43 & 44]
Access to local authority protected records [ss. 45 & 46]
Archives council [ss. 14 – 16]
Accessibility of records over time [s. 17]
Alteration of records [see also Disposal ss. 4 & 18]
Annual report on recordkeeping [s. 32]
Appeal process [ss. 51 – 56]
Audit
Audit reports to parliament [s. 35]
Independent audit of recordkeeping [s. 33]
Central government [see Public office]
Charges for Archives New Zealand access services [s. 59]
Chief Archivist [s. 10]
Functions & Duties of [s. 11]
Classification of access status [see Access & Public access]
Contractors' records [s. 17]
Copyright Act [see Schedule: Enactments amended & s. 57]
Create and maintain records [s. 17]
Crown Entities [see Public office]
Crown research institutes [see Public office]
Deferral of transfer [s. 22]
Definitions of terms [s. 4]
Destruction of records [s. 18]
Discharge of public records [s. 25]
Discharged records register [s. 19]
Disposal [ss. 4 & 18]
Disposal authority
Local Authority Protected records [ss. 18 & 40]
Public records [ss. 18 & 20]
Electronic records [ss. 4, 17, 22, 51 & 53]
Electronic recordkeeping systems [ss. 17, 22 & 40]
Email [ss. 4, 17 & 22]
Exclusions from Act [s. 6]
Exemptions [s. 30]
Estray Records [ss. 36 & 37]
Free and timely access [s. 47]
Independent audits of public offices [s. 33]
Full and accurate records [s. 17]
Inspection, Power of [s. 29]
Local Authority
Access to records [ss. 45 & 46]
Archive [s. 4]
Disposal of records [s. 40]
Protected Record [ss. 4 & 40]
Ministers' papers [s. 42]
Normal prudent business practice [s. 17]
Offences and penalties [ss. 61 & 62]
Official Information Act [ss. 25, 42, 44 & 58]
Open access [see Public access]
Outsourcing [s. 17]
Private records [s. 42]
Parliamentary records [s. 42]
Polytechnics [see Public office]
Politicians’ papers [s. 42]
Prescribed records [s. 38]
Preservation & reasons for restrictions on access [ss. 3, 11, 22, 24, 40 & 63]
Privacy Act [ss. 25 & 44]
Privatisation [ss. 18 & 25]
Prohibition on public access or copying [s. 49]
Protected records [s. 40]
Disposal and transfer [s. 40]
Public access / open access
Basis for determining access [ss. 44 & 46]
Public inspection [s. 47]
Publication or copying of [s. 49]
Requirement to classify access status [ss. 43 & 45]
Review of Restrictions [s. 50]
Public inspection of records [s. 47]
Public Office [s. 4]
Access to records [ss. 43 & 44]
Archive [s. 4]
Disposal of records [s. 20]
Public record [s. 4]
Transfer of [s. 23]
Records management systems [see Create and maintain records]
Report
To Parliament [s. 35]
To Chief Archivist [s. 31]
Registers [s. 19]
Discharged records [s. 25]
Prescribed records [s. 38]
Prohibitions [s. 49]
Public inspection of [s. 19]
Restricted access records [s. 44]
Transfer to Chief Archivist [s. 22]
Transferred protected records [s. 40]
Restricted access records [ss. 43 & 44]
Restricted access period [s. 50]
Sale of records [s. 18]
Schools [see Public office]
Standards [ss. 27 & 28]
Application of standards [s. 28]
Chief Archivist, Power of issue [s. 27]
Content of standards [s. 28]
Discretionary [ss. 27 & 28]
Mandatory [ss. 27 & 28]
Public consultation on [ss. 27 & 28]
State Owned Enterprises [see Public office]
Temporary return of archives to controlling body [s. 24]
Tikanga Māori [ss. 4, 7, 14 & 15]
Transfer [ss. 20 – 24]
To Archives New Zealand [s. 21]
Mandatory transfer (after 25 years) [s. 21]
Of local authority protected records [s. 40]
On change of function [s. 23]
Transfer of functions [s. 23]
Transitional provision local authority [s. 41]
Treaty of Waitangi (Te Tiriti o Waitangi) [s. 7]
Universities, tertiary education providers [see Public office]
Websites [ss. 4, 17 & 22]
 
 
Issued August 2006
 
 
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