Despite its manifesto promise to make the Chief Archivist an officer of Parliament, the government has not yet announced its decision. It is taking so long there must be a problem. Let’s guess an outcome if the officials have their way.

One of the major issues which face a democratic nation is the challenge of keeping its bureaucracy accountable and responsive to the public. Over the years a variety of arrangements have developed with this objective.

The main one is parliamentary scrutiny but there is a sense that as well as providing leadership and direction, the cabinet provides accountability. Indeed John Key’s amiable style of government was frequently the ‘LV Martin approach’ based on ‘it's the putting right that counts’ rather than taking responsibility for a failure or providing leadership.

Over the years, other accountability mechanisms have been developed. One is the Official Information Act, which enables a private citizen to investigate a decision, thereby holding the public servants to account. There is a sense that the act allows us to pry into the bureaucratic bedrooms of officials. Understandably, they don’t like that at all.

So the officials’ attitude to the OIA ranges from resignation to insubordination. Yes, I mean the second term; almost everyone who has often used the act can recount at least one instance where officials have done their best to corrupt the spirit of the OIA.

As a result, there is an independent agent to judge whether the withholding of information is justified by the specific provisions of the OIA. That commissioner is the Ombudsman, who is an officer of Parliament. Placing the commissioner there, recognises that the activity is a part of the accountability system which is, in principle, presided over by Parliament.

One wonders what would happen if the Ombudsman’s office was a part of the bureaucracy, and its role blunted (in addition to the funding restraints which means it usually takes ages to deal with an appeal). We have some indication of what would happen when we look an agency which is actually senior to the Ombudsman’s office in the accountability structure but is a part of officialdom.

It is often overlooked that an effective OIA requires measures which preserves public records. If there were none, officials faced with an uncomfortable request could destroy the problematic papers replacing them with bland alternatives. Today they may only do that with the authorisation of the Chief Archivist.

He recently reminded those involved with the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions that officials were not to destroy relevant papers. I found it chilling that some thought they could.

The Public Records Act is a part of the system of accountability, well-illustrated by the central role that Archives NZ has played in Treaty settlements. When the Waitangi Tribunal was first established, it was thought that it would not be able to investigate nineteenth-century grievances because the documentary evidence was inadequate. The public archives contradicted the fear, even though there are gaps. (It is often overlooked that the documents prove that some grievances are unjustified. Because such instances get little publicity – they are there in the reports – there is a misunderstanding that the Tribunal always finds (often egregious) government failure.)

But the Public Records Act is not just about nineteenth-century accountability, as the example involving a sitting royal commission illustrates.

So the logic is that the Chief Archivist should be an officer of Parliament. But in fact he (or she) is at a third level in the Department of Internal Affairs, which is what you might expect if officialdom was trying to undermine the accountability system. Given half a chance, it would place the Ombudsman at the fourth level. One does not need to be conspiratorial about this. It is just that officialdom gives no high priority to the accountability system.

That explains the odd decision to move the documents which comprise the Treaty of Waitangi to the National Library as if they were just a part of the documentary material of our history. But as important as is the material in this regard, the contents of a library are not a central part of the constitution in the way the Treaty documents are.

I readily accept that the public archives have a vital role in the preservation and promotion of the nation’s culture and heritage, and that genealogists and historians value them for that. But they must understand that the greatest protection of their books and manuscripts and records is a functioning liberal democracy and that the priority has to be to protect that. This makes the role of Archives New Zealand far more important than a source for heritage studies. If liberal democracy breaks down, then so may honest heritage studies, as we are sadly seeing in a number of countries overseas.

Surely the logic is that the Treaty documents should be housed in Parliament. I am not saying we should do that immediately, but the next time the parliamentary buildings get refurbished a Treaty Room should be installed there, at the heart of the government of the nation.

But we cannot do that at the moment because the documents are under the care of a third-level officer in the Department of Internal Affairs and it would be improper for a junior member of officialdom to be so responsible for a part of Parliament. Of course if the Chief Archivist was an officer of Parliament that would be a different matter. As I have already argued he or she should be – problem resolved.

Except the indications are that the Chief Archivist is not going to become an officer of Parliament, even though the 2017 Labour Party manifesto promised it. You can see why officialdom would be loath to consider such a change since it would sharpen its accountability. They would rather ignore that issue and treat the whole public archives system as they have the Treaty of Waitangi documents. They are likely to see the role of the Chief Archivist as a part of the heritage system, perhaps reinforcing the de facto merger with the National Library. That might include the possibility that one day the two institutions will be returned to the Department of Internal Affairs – on the department’s record one would not refer to it being under the DIA’s ‘care’ or ‘stewardship’.

I would not be surprised if when the full tale is told – it will depend upon public records of course – there will be found a misuse of the OIA. That is the way these things work in a low-accountability system.

Of course, I may be wrong. The politicians may insist that the spirit of the Labour Party manifesto be adhered to. It may be that the parliamentarians will call them to account. If so it would be a victory for strengthening the accountability of our democracy.

 

P.S. An earlier column was Whither Archives New Zealand and the National Library?

 

Comments (1)

by Brian Easton on June 24, 2019
Brian Easton

A follow up by Point of Order reminds us of the following incident.

      In 2014 the Chief Archivist investigated PM John Key’s deleting of text messages.

     The Green Party asked for an investigation to see if the Prime Minister has broken public record laws following admissions made in Parliament that he deletes his texts.

     That includes correspondence with blogger Cameron Slater.

     The review found that text messages were official public records if sent or received in Key’s capacity as Prime Minister, but not if sent as party leader or if they were personal texts.

It is not really satisfactory that such a judgement on a prime minister's activities  should be made by such a low ranking official in the public bureaucracy It well illustrates the case for the Chief Archivist being an officer of Parliament.

 

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