An Appreciation
Government archives authorities have a discretion to allow or forbid the destruction of public records. Should they exercise this discretion to safeguard the rights and entitlements of private citizens or only on “historical” grounds? Should government archivists prevent hasty destruction of official documents which may provide evidence of government liability or wrong-doing? Who determines the public interest in retention and balances individual concerns against public benefit?These and related questions have been raised in the recently published Report of the Senate Select Committee on Unresolved Whistleblower Cases entitled The Public Interest Revisited (October 1995). The Report dealt, inter alia, with the “Shredding of the Heiner Documents” in Queensland. In the course of the Senate’s Inquiry, Queensland authorities argued that it was no business of the State Archivist to be concerned with disposal other than to determine what documents should be kept for reasons “of historical public interest”.
0.1 In 1993, a Senate Select Committee on Public Interest Whistleblowing was established whose report, entitled In the Public Interest, was tabled in August 1994. The report recommended State action on a number of unresolved whistleblower cases in Queensland. In response to a letter from the Committee’s Chair, requesting State Premiers and Territory Chief Ministers to consider the Committee’s recommendations and the need for complementary State and federal legislation, Queensland’s Premier (Wayne Goss) replied, inter alia, that the State would take no further action on the unresolved cases.
0.2 The Senate responded by establishing a Select Committee on Unresolved Whistleblower Cases in December, 1994. This Committee completed its work by publishing a report entitled The Public Interest Revisited in October 1995. One of the unresolved cases investigated by the Committee involved shredding of official documents. The case is generally referred to as “The Shredding of the Heiner Documents”. Although not central to the case, the question of the circumstances in which a State archivist should approve destruction of public records was a major issue for consideration.
0.3 The Queensland Government refused to co-operate with the Senate Inquiry, though it did supply (directly or indirectly) much of the documentary material which is now published in appendices to the Committee’s Report. The Queensland Criminal Justice Commission (CJC), however, did appear and give evidence.
0.4 The CJC’s involvement comes about because it dealt with some of the cases (including the Heiner Documents Case). In part, the Queensland Government’s refusal to participate was based on a view that CJC was the appropriate body to deal with these cases and had already done so. Dissatisfied whistleblowers called into question the adequacy of CJC’s methods and conclusions. Because CJC did appear, give evidence, and submit itself to examination by the Committee, the Senate Inquiry became to some extent a review of CJC’s handling of the cases referred to the Committee.
0.5 Neither the Australian Society of Archivists (ASA) nor the Records Management Association of Australia (RMAA) made submission to or gave evidence before the Senate Committee. Yet the issues canvassed are of great professional significance.
The Heiner documents were the records of interview and related material gathered
by retired stipendiary magistrate Noel Heiner in the course of an aborted
inquiry into the John Oxley Youth Centre, Wacol, and its manager, Mr Peter
Coyne, in late 1989 and early 1990; they were shredded on the order of the
Queensland Cabinet on 23 March 1990.
1.1 Here is a cast of characters:
Peter Coyne : Manager of the John Oxley Youth Centre (JOYC). In early 1990,
immediately upon termination of the Inquiry, he was seconded out of JOYC
onto a “special project”. He sought access to the Heiner documents
through his solicitors and union and advised DFSAIA through his solicitor
that he was intending to institute legal proceedings. One year later he accepted
a redundancy package.
Noel Heiner : Began investigations in November 1989 and indicated he was
not prepared to continue in January 1990. Documents made and received in
the course of his investigations were handed over to DFSAIA and sealed in
January 1990. Sealed material was then transferred from DFSAIA to Cabinet
secretariat in “a somewhat unusual development”. He received indemnity
from litigation expenses by Cabinet.
Kevin Lindeberg : Senior Organiser/Media/Publicity Officer with the Queensland
Professional Officers’ Association (QPOA) for six years who initially
handled Peter Coyne’s case. In mid-1990, he was dismissed from QPOA.
One of the reasons given for his dismissal by QPOA was his handling of the
Coyne case after the Minister for DFSAIA complained that he was
“overly-confrontationalist and inappropriate” in his negotiations.
Lee McGregor : State Archivist. Her approval for the destruction of the Heiner
documents was sought by Cabinet official Tait on 23 February 1990 and was
given “apparently ... within a few hours”.
Ruth Matchett : Acting Director-General of the Queensland Department of Family
Services and Aboriginal and Islander Affairs (DFSAIA) which replaced the
Department of Family Affairs following the Queensland change of government
in December 1989 and terminated the Inquiry in February 1990. She resigned
in mid 1995.
Kenneth O’Shea : Queensland Crown Solicitor. In January 1990, his advice
was sought on the manner in which the Inquiry had been set up and on
Heiner’s powers and indemnities. He advised that Heiner and his informants
might not be immune from legal action for defamation.
Alan Pettigrew : Director-General of the Queensland Department of Family
Services (DFS) which initiated the Heiner Inquiry after a meeting involving
Janine Walker.
Stuart Tait : Acting Cabinet Secretary in early 1990. Sought approval from
QSA for destruction after taking advice from O’Shea.
Janine Walker : Industrial Relations Director of the Queensland State Services
Union (QSSU) some of whose members were concerned about the management of
JOYC. She urged establishment of the Inquiry and handed written complaints
to Pettigrew.
Anne Warner : Minister in Goss Labor Government responsible for DFSAIA. Retired
at July 1995 State election.
1.2 What follows is a selected chronology:
14 September 1989 : Officers of DFS meet with Janine Walker of SSU.
22 November 1989 : Heiner Inquiry commences.
2 December 1989 : Election. New Labor Government.
11 January 1990 : Coyne gives evidence to Heiner.
15 January 1990 : Coyne seeks copies of documentation from Matchett.
17 January 1990 : Coyne’s solicitors complain to Matchett - denial of
natural justice.
18 January 1990 : Coyne again seeks copies of documentation from Matchett.
18 January 1990 : O’Shea advises on whether the Inquiry should continue.
19 January 1990 : Lindeberg, Walker and Matchett meet.
19 January 1990 : After discussions with Matchett, Heiner declines to continue.
19 January 1990 : O’Shea advises further on whether the Inquiry should
continue.
23 January 1990 : O’Shea advises further on whether the Inquiry should
continue.
29 January 1990 : QPOA complains Coyne has been denied natural justice.
7 February 1990 : Matchett writes to Heiner terminating Inquiry.
8 February 1990 : Coyne’s solicitors seek access to documentation from
Matchett.
13 February 1990 : Matchett transfers Coyne to a special project at Head
Office.
13 February 1990 : Tait seeks O’Shea’s advice on disposition of
documents.
14 February 1990 : Coyne’s solicitors advise of legal action to obtain
access.
16 February 1990 : O’Shea advises that Archives approval must be given.
23 February 1990 : Cabinet seeks State Archives approval for destruction.
23 February 1990 : State Archives approval for destruction given.
5 March 1990 : Cabinet decides to destroy records.
23 March 1990 : Records destroyed.
30 May 1990 : Lindeberg dismissed from QPOA, then re-instated.
7 August 1990 : Lindeberg dismissed from QPOA, not re-instated.
2.1 In common with most State archives laws, the Queensland Libraries and
Archives Act 1988 gives the archives authority power to determine whether
records proposed for destruction should be retained or destroyed. In Queensland,
this discretion resides with the State Archivist.
2.2 In some other States (and in the Commonwealth), the person who acts as
archives authority is both a “statutory officer” (occupying a position
established by an Act of Parliament) and a public servant subject to control
and direction by the normal departmental processes and hence, ultimately,
by a Minister of the Crown. A conflict can arise between a responsibility
to exercise statutory duties independently and compliance with directions
given by the statutory officer’s superiors.
2.3 In New South Wales, the Archives Authority is a board and it has a measure
of independence common to statutory bodies because they are composed of persons
who are not subject to public service discipline. This is undoubtedly enhanced
by the presence on the Authority of a judge of the New South Wales Supreme
Court. In Tasmania, the archives legislation specifically exempts the archivist
from direction by departmental superiors or by the minister in the exercise
of the disposal discretion.
2.4 In other States (e.g. Victoria and Queensland), it can be asked whether
the discretion of the archivist when dealing with departmental requests is
in any sense “controlled” by the minister (responsible for archives
matters) or the departmental superiors of the archivist. In other words,
must the archivist approve a destruction request if told to do so by his
or her superiors?
2.5 No statutory discretion is wholly unfettered. At the very least, the
discretion must be exercised in accordance with administrative law and is
normally subject to judicial and/or administrative review - if it is claimed,
for example, that the discretion has been exercised in an unlawful or improper
manner. A discretion must be exercised properly and lawfully and courts will
intervene if it is not.
2.6 Intervention by a court in the exercise of a statutory discretion is
usually (but not always) concerned with the manner in which a discretion
is exercised rather than the merits of the decision. Alternatively, an exercise
of discretion may be subject to review or revision - typically on appeal
to a tribunal or higher authority. Such an appeal is usually (but not always)
concerned with the merits of the decision rather than the process.
2.7 The Queensland Government’s actions have been defended by the CJC
whose representative (Michael Barnes) has asserted that :
· the role of the Queensland State Archives (QSA) is to assess the
“historical value” of the records, and
· it is no business of QSA to consider other issues (such as the interest
of citizens in availability of records in possible legal proceedings) when
exercising that discretion,
and by the Queensland Crown Solicitor (K M O’Shea) who argued that :
· Government has a right to destroy “its own property” (public
records) “in accordance with a Statutory regime which permitted ...
destruction (the Libraries and Archives Act 1988)” , and
· there is no statutory obligation on the Government or the Archivist
to consider, before destroying records, the implications of legal proceedings
which have been “threatened” but not yet instituted.
2.8 One of the grounds on which a court may intervene is if an authority
improperly purports to fetter a discretion conferred upon it. The key question
here is what purpose does the approval of QSA serve.
2.9 The net effect of defending the Government’s right to destroy public
records subject only to review by QSA and then limiting QSA to a consideration
of historical value is to liberate the Queensland Government from potential
constraints on disposal actions where destruction would have adverse results
for any citizens except historians. QSA would thus be prevented from giving
consideration or weight to any reasons it might find for preventing destruction
of public records apart from the needs of “history”.
2.10 It is arguable that acceptance of the CJC’s view would amount to
a “fettering” of QSA’s discretion by imposing a policy or
rule which precludes consideration of all relevant factors. Insisting that
matters other than historical value have “nothing to do with the
archivist” and limiting QSA’s consideration of reasons for withholding
consent to that issue only improperly limits the exercise of a discretion
conferred by Parliament without any such restrictions being imposed.
2.11 The Crown Solicitor, on the other hand, argued that the Archivist had
a “wide” discretion and could presumably consider anything she
pleased. Conversely, within the terms of O’Shea’s expressed opinions
(at any rate those which are published), there was no obligation for her
to take account of anything when reaching a decision. But this would amount
to saying that Parliament had no particular purpose in mind when conferring
the discretion and that the Archivist may please herself. It is doubtful
if any court would uphold such a view of discretionary power.
2.12 The Archivist’s discretion acts as a brake on Government (which,
according to O’Shea, has no obligation of solicitude for citizens like
Coyne in their pursuit of justice). The removal of that brake (by recklessly
detaching its exercise from any sense of the purpose for which it was conferred)
would have adverse consequences for those who may look to it for protection.
This was the view taken by counsel for the Queensland whistleblowers -
this matter is deeply concerning ... because it represents a real threat
to the security of evidence (in this case public records) required in foreseeable
and foreshadowed litigation ... It potentially gives our state Archivist
greater power than any court to decide what records may or may not be preserved
if she/he is oblivious to statutory and legal demands on documents when deciding
whether or not to destroy them .
2.13 Crown Solicitor O’Shea does not express an opinion on what purposes
are served by the exercise of the Archivist’s discretion (i.e. what
factors she must take into account when reaching a decision and whether she
too can safely ignore the wishes of citizens like Coyne to seek justice in
the courts). O’Shea is clear, however, that in his opinion Coyne’s
pursuit of the documents posed no obstacle to the Government in seeking to
destroy the records. The only obstacle was the need to obtain the
Archivist’s permission. It follows that, within the boundaries of the
Crown Solicitor’s opinions on the matter, if there was an obligation
or duty on anyone to consider Coyne’s interests (and O’Shea does
not say that there was) then that obligation or duty can only have rested
with the State Archivist.
2.14 Absent any evidence of what passed through Lee McGregor’s mind
on or about 23 February 1990 when she was asked for and gave a decision,
no one can say what factors she considered or what weight she gave to them.
The only thing upon which there appears to be universal agreement is that
she was not aware that Coyne and his solicitors were seeking the records
and wanted to use them to mount a case in court.
2.15 Should it be established that a consideration of Coyne’s interest
in the records was relevant to the exercise of the archivist’s discretion,
two further issues arise :
· Did the Archivist take all reasonable steps to satisfy herself on
this and all similar considerations?
· Was the Cabinet Office at fault in not informing the Archivist of
Coyne’s interest in the records when seeking approval for destruction?
A similar (but not identical) issue arises for the Archivist if it is held
that her discretion requires her to consider the implications of destruction
for potential litigants in general (as a class) but not in particular cases.
2.16 The Queensland Crown Solicitor (O’Shea) and spokesman for CJC (Barnes)
argued that the Queensland Government was under no legal obligation to consider
the wishes of “potential” litigants - only the rights of participants
in proceedings already under way (rights which are in any case already protected
not by the archival discretion but by the criminal law). O’Shea argued
that the Government’s only obligation was to obtain QSA’s prior
consent. CJC argued that consideration of the interests of potential litigants
in retention of records was irrelevant to QSA’s decision to approve
a request for destruction.
2.17 If both these arguments are accepted, no-one needed to consider the
interests of citizens trying to get access to justice in the courts - neither
the Queensland Government (because legal action had not actually commenced
and it was QSA’s job to decide on retention/destruction) nor QSA (because
its business was to consider historical value only). The alternative view
is that, before agreeing to a request for destruction, QSA (like any archives)
should consider all of the uses to which records may be put in securing,
inter alia, the rights and entitlements of citizens (including the right
to take the Government to court).
2.18 If this wider view of the purpose of archival discretion is accepted,
QSA’s approval can be criticised if it can be shown to have failed to
take account of all relevant matters and CJC’s evaluation of the case
can be criticised for failing to deal with this aspect of the affair. Instead
of “having greater power than any court”, QSA is then seen to have
a discretion which is exercisable subject to the requirement to take into
account all relevant issues not just “historical value” and its
decisions can be examined and, if necessary, criticised for any failure to
take account of other possible reasons for refusing requests for destruction.
3.1 The general rule is that an authority should not act under the dictation
of another -
[809] ... In Roncarelli v Duplessis (1959) 16 DLR (2d) 689, a liquor licensing
commission with a discretionary power to cancel liquor licences cancelled
the plaintiff’s licence at the command of the Premier of Quebec. The
Supreme Court of Canada held that the power of cancellation belonged to the
commission alone and could not be exercised at the dictation of another.
[810] It is not necessary to show that the third party intended to dictate.
It is enough that the authority feels itself compelled to act in accordance
with the other’s assumed wishes ... While an authority must not accept
dictation from others it is perfectly proper for it to take the opinions
of other authorities into account. The line between these two processes may
not always be easy to draw. In R v Anderson ; Ex parte IPEC-Air Pty Ltd (1965)
113 CLR 177, the Director-General of Civil Aviation had power to grant permits
for the importation of aircraft into Australia. On one application he sought
the views of the government which, through the Minister of Civil Aviation,
indicated that it was opposed to the importation. The High Court refused
to disturb the Director-General’s decision not to grant a permit. Windeyer
J (at 204) so held on the ground that it was proper for the Director-General
to obey the government, and Taylor and Owen JJ (at 200) on the ground that
he had merely taken account of the government’s wishes. Kitto and Menzies
JJ dissented (at 192, 202). They held that the Director-General had improperly
acted under dictation.
3.2 An authority may, therefore, “have regard” to the wishes of
the Government in a particular case when exercising a discretion - the issue
of a licence or import permit or the destruction of a set of records - but
the weight of opinion appears to oppose the view that the Archivist must
“obey” the Government in such cases.
3.3 On the other hand, public servants exercising statutory discretion are
also subject to the discipline of administrative control -
[812] The courts take account of the realities of modern government so that
when power is given to a civil servant the courts may be ready to imply a
right or even a duty to accept directions on governmental policy from ministers.
This view was taken by Kitto J (at 192) and Windeyer J (at 204) in the IPEC
case and has been supported (obiter) by a majority of the judges in the High
Court of Australia in Ansett Transport Industries (Operations) Pty Ltd v
Commonwealth (1978) 17 ALR 513 ... in the course of their judgements, the
judges considered the question whether the secretary, a public servant, could
be bound to exercise his discretion in accordance with directions by the
government. Barwick CJ, Gibbs, Murphy and Aickin JJ recognized that, at least
in some circumstances, a public servant could be required to exercise his
discretion in accordance with a governmental policy direction. Mason J disagreed
and took the view that though the official could take governmental policy
into account, he could not abdicate his responsibility by acting on directions
by a minister.
On the establishment of particular facts, Mason J’s view no doubt represents
the law, but where the decision has an element of governmental policy the
weight of authority now recognizes that that element can be the subject of
lawful dictation by ministers.
3.4 It appears, therefore, that the disposal discretion (except in Tasmania)
may be fettered by an obligation to take direction where the decision has
an element of policy and to the extent that the decision in a particular
case is affected by that policy. It is far from clear what constitutes a
governmental policy in a disposal case and to what extent (if any) the
archivist’s discretion could be made subject to lawful direction in
pursuit of such a policy.
3.5 It is arguable that, in the Heiner case, the State Archivist could have
legitimately taken into account the Government’s reasons for seeking
destruction of these particular records. These reasons were subsequently
argued in very eloquent terms by the Queensland Attorney-General who said
that “Cabinet acted properly and in good faith to rectify a very difficult
situation for Mr Heiner, and the staff of the Centre who had provided information
to Mr Heiner in confidence” . He went on to say -
All reasonable steps were taken to ensure that the material could not be
used detrimentally or otherwise regarding the future work prospects of all
participants. This included Mr Coyne.
3.6 Whether these motives constitute a policy ground upon which the Government
could properly direct the archivist in the exercise of discretion is open
to argument. It appears, however, that the Cabinet Office (the agency which
sought the approval) did not in fact seek to control the archivist’s
discretion by directing her in the avowed pursuit of any policy. In seeking
advice from the Crown Solicitor on the wording of a letter to the State
Archivist, the Cabinet Secretariat stated, inter alia
Your advice is sought in regard to the letter’s suitability especially
in relation to the state archivist not being seen to be pressured by the
Government.
3.7 There is no documentary material in the Senate Report indicating what
correspondence, discussions, or directions (if any) took place between the
Archivist and her own departmental or ministerial superiors. Although the
letter to the State Archivist from the Cabinet Secretariat sought
“urgent” advice and referred to “questions ... raised concerning
the possibility of legal action ... because of the potentially defamatory
nature of the material”, these doubts were given as the reason for
terminating the Inquiry, not as grounds for seeking destruction of the records.
3.8 The request for approval to destroy fails, therefore, to indicate any
“policy” by reference to which a legitimate direction could be
given. It refers only to the Government’s wish to maintain confidentiality
(an implied argument that destruction is being sought as a means of controlling
access) and asserts that the records are “no longer required or pertinent
to the public record”.
3.9 Approval for destruction was in fact given on the same day as the request
was transmitted. As the Chief Officer of the CJC’s Complaints Section
(Barnes) said later, “to be frank, she must have known they were fairly
hot documents when the cabinet secretary asked for urgent advice” .
We just do not know whether the State Archivist felt “pressured”
in any other way on that day. It may be necessary to leave unanswered the
questions raised by Senator Herron -
Senator HERRON - ... is it unusual ... I mean, is that normal practice, to
your knowledge? My reading of that implication is that it is an extraordinary
event. I mean, I have to say that, in all my dealings with the Public Service
throughout my life, I have never received an approval or a reply the same
day ...
3.10 The Senate Committee concluded -
As the State Archivist followed the Government approach that it was inappropriate
for officers of the executive government to provide any assistance to the
Committee and declined to give evidence, the Committee is unable to determine
whether her decision to approve the shredding might have been varied, had
she been specifically informed that one potential litigant did in fact exist.
Her decision was apparently made within a few hours of receiving the voluminous
material on 23 February 1990, which suggests that here examination of it
must have been cursory indeed. The shredding itself was not performed with
undue haste: Cabinet approved the shredding on 5 March 1990; the shredding
took place on 23 March 1990.
3.11 If the urgency in which the request was framed and the haste with which
the approval was given are indicative of other reasons or of other transactions
between the State Archivist and her departmental or ministerial superiors,
they are not yet on the public record which shows (rightly or wrongly) that
she reached an independent, uncontrolled, and unpressured decision on the
merits of the case before her.
3.12 We should now turn to issues surrounding the nature of that decision
and the reasons for it.
Any person who, knowing that any book, document, or other thing of any kind,
is or may be required in evidence in a judicial proceeding, wilfully destroys
it or renders it illegible or undecipherable or incapable of identification,
with the intent thereby to prevent it from being used in evidence, is guilty
of a misdemeanour, and is liable to imprisonment with hard labour for three
years.
Queensland Criminal Code, section 129
4.1 Much of the Senate Committee’s time was taken up on the issue of
“pending legal proceedings”. It is clear that, once legal proceedings
have commenced, it is a serious matter for one litigant to destroy documents
which have been subpoenaed by the other party. When Crown Solicitor O’Shea
advised in January 1990 on status of the Heiner Inquiry, he recommended (23
January) that the documents gathered by Heiner should be destroyed if it
was decided to terminate the process, possibly believing them at that stage
to be Heiner’s private property. He noted, however -
This advice is predicated on the fact that no legal action has been commenced
which requires the production of those files.
4.2 There is no dispute that, when the Archivist’s approval for destruction
was subsequently sought, proceedings had not yet commenced and that no
proceedings were begun before the records were eventually destroyed. It is
also apparent that Coyne’s wish to see the records and his intention
to take legal action was known.
Senator ABETZ- Did that not alert you or the CJC that there was something
of some importance to Mr Coyne there? Documents had been shredded, but the
official advice to him that they had been shredded and the final advice received
was two months after the event?
Mr Barnes- I do not see that the delay is either here or there. There is
no doubt that the documents were destroyed at a time when cabinet well knew
that Coyne wanted access to them. There is no doubt about that at all
Senator ABETZ- Is there no doubt in your mind that cabinet knew that Coyne
wanted the documents?
Mr Barnes- I am confident that is the case.
4.3 It has been argued in defence of the Queensland Government’s actions
that there was no legal obstacle to destruction and that the Queensland
Government was within its rights in proceeding with the destruction. In a
Ministerial Statement to Parliament , the Queensland Attorney-General objected
to criticism that the records were subject to “pending” legal
proceedings - arguing (rightly) that, since proceedings had not yet commenced,
a distinction had to be drawn between legal proceedings which had been commenced
or instituted and could thus be described as pending and those which were
“intended”, “foreshadowed” or “threatened”.
In the words of Crown Solicitor O’Shea -
There is an abundance of authority to show that a civil action or proceeding
is not pending until the originating proceeding (Writ, Summons or Motion)
has been filed in the Court ... All the threats in the world to commence
a Civil proceeding (or a Criminal one) do not make it pending, for the purposes
of Section 129 of the Criminal Code.
4.4 In response to this, it has been argued that the O’Shea view is
splitting hairs in anything other than a strict legal sense, that the Government
should have behaved as a “model litigant” and, knowing that proceedings
were contemplated (or “threatened”), it should have held its hand.
In the words of one submission -
The simple fact is that, by seeking to destroy these documents, the Crown
has removed a prospective litigant of his rights. This cannot in any true
sense of the word be in accordance with our democratic principles.
4.5 The distinction between destroying documents after legal proceedings
are under way and destroying them to prevent legal proceedings being commenced
was lost on some -
Senator CHARMARETTE- I am then saying that to me, from a lay point of view,
to actually destroy the documents to prevent litigation being on foot seems
very similar. Are you now saying that to actually use as your rationale for
the destruction to prevent litigation being on foot is somehow different
from litigation being on foot?
Mr Barnes- Yes. With respect, I say it is a lot different. What you do with
your own property before litigation is commenced, I suggest, is quite different
from what you do with it after it is commenced.
The curious thing here is that the CJC (an investigative body) appears to
have found as a matter of fact that the Cabinet acted to destroy documents
for the express purpose of preventing litigation :
Senator ABETZ - Does the CJC agree from its investigation that the documentation
was shredded because there was fear that litigation might flow from that
documentation if it were not destroyed?
Mr Barnes - The papers seem to suggest that both of the matters I have raised
with you - the possibility of litigation and the concern that the people
who had been induced to come forward to give evidence could be victimised
- were foremost in the minds of the people who made the decision. But, with
respect, I cannot look into their minds and see which of those issues was
predominant.
Senator ABETZ -I am trying to get a handle on this. What seems to have occurred
is that, with the potential threat of a defamation suit, cabinet decided
to shred the documents because they were of no historical value, knowing
full well that it may be the material evidence on which a potential litigant
would rely to pursue or prosecute his case.
Mr Barnes - I think that probably is a fair summary. As a result of the actions,
the correspondence and the communications, I think they believed that Coyne
was considering suing the people who gave evidence before Heiner for defamation.
As you say, the Crown Solicitor’s advice seems quite clear that that
was a potential and, consistent with that advice, cabinet decided that they
would prevent that from happening.
A distinction can be made between cases where “what you do with your
own property before litigation is commenced” is for some unspecified
(probably unknowable) purpose and the Heiner case where a competent investigative
body has concluded that records were destroyed to prevent the litigation
from commencing. Yet no one seems to have considered whether this conclusion
by the CJC about Cabinet’s intent (if it could be sustained) would have
altered matters.
4.6 The CJC’s contention was that Cabinet was acting in good faith on
advice received from the Crown Solicitor though it (the CJC) would not make
an evaluation whether or not O’Shea’s advice was good. The CJC
went on to argue :
In our submission, there is not a scintilla of evidence to indicate that
when the Queensland Government decided to shred the documents it had any
reason to believe that it was acting unlawfully. It had cognisance of, and
was acting in accordance with, legal advice provided to it by the Crown
Solicitor.
In those circumstances, there was no possibility of establishing that the
members of the Cabinet had committed a criminal offence ... At this point
the Commission had discharged its function.
It appears that ministers can commit no crime provided they act in good faith
upon legal advice - regardless of the whether that advice is good or bad.
4.7 Counsel for Lindeberg ( I D F Callinan QC and R D Peterson) argued that
the CJC’s interpretation was too narrow. They drew attention to a recent
High Court decision in R v Rogerson and Ors (1992) 66 ALJR 500 -
... it is enough that an act has a tendency to deflect or frustrate a prosecution
or disciplinary proceedings before a judicial tribunal which the accused
contemplates may possibly be implemented ... Mason CJ at p.502
A conspiracy to pervert the course of justice may be entered into though
no proceedings before a court or before any other competent judicial authority
are pending ... Brennan and Toohey JJ at p.503
4.8 The U.S. courts take an equally strong line in condemning the destruction
of records as an “obstruction of justice” and the whole issue appears
to have received greater consideration there than in Australian courts. The
question was reviewed at some length in The Notre Dame Lawyer in 1980 -
Whether a company has an ad hoc search and destroy operation or a regular
records retention program, management and counsel must consider a federal
criminal statutory scheme which renders the destruction of documents illegal
if it interferes with judicial, administrative or legislative investigations
or proceedings ... If a party to a civil proceeding has destroyed records,
a negative inference may be drawn from that fact and exploited for its
prejudicial value at trial .
4.9 Federal statutes in the U.S. restrain destruction of documents (or any
evidence) in judicial proceedings and American courts also have had to consider
at what stage in proceedings a criminal liability arises -
... the courts ... have concluded that only ongoing or pending judicial
proceedings ... fall within the section’s ... language ... The courts
reason that a person unaware of the pendency of a proceeding could not have
the requisite intent to obstruct justice ... The courts justify their literal
interpretation ... with the maxim that criminal statutes should be strictly
construed.
Although the substantive offense of obstruction of justice requires a pending
proceeding, otherwise punishable conduct which precedes pendency is not immune
from prosecution. In United States v. Perlstein the Third Circuit affirmed
convictions for conspiracy to obstruct justice even though the conspirators
were not found guilty of the substantive crime ... The court stated : “...
there is nothing to prevent a conspiracy to obstruct the due administration
of justice in a proceeding which becomes pending in the future from being
cognizable under section 37 [antecedent of present conspiracy statute, 18
USC #371].
4.10 The same principle is applied even more widely to obstruction of proceedings
undertaken by departments, agencies, and committees -
Courts have expressed various views as to the time at which an agency’s
activity first qualifies as a “proceeding” ... : when the agency
is notified of potential violations; when pre-investigation begins; when
an informal inquiry begins; or when a formal order is issued directing
investigation to begin ... As one court explained : “[T]he growth and
expansion of agency activities have resulted in a meaning being given to
“proceeding” which is much more inclusive and which no longer limits
itself to formal activities in a court of law. Rather, the investigation
or search for the true facts ... is not ruled as a nonproceeding simply because
it is preliminary to indictment and trial”. .
4.11 The question whether an Australian court would follow American precedent
and entertain charges of conspiracy with regard to “punishable conduct
which precedes pendency” does not appear to have been discussed. It
is apparent from all of this that the legal issue is far from clear. It is
at least arguable that the view taken by the Queensland Crown Solicitor and
the CJC (in effect, that no issue of obstruction arises until proceedings
have actually commenced regardless of circumstances or intent) is too narrow.
Insofar as this is a question of criminal liability, archivists and records
managers can only try to stay in touch with unfolding developments in the
courts and endeavour to ensure that their conduct does not implicate them
(wittingly) in a conspiracy to obstruct justice or (unwittingly) in smoothing
the path of others so bent.
4.12 The exercise of the archivist’s discretion, however, involves issues
which go beyond questions of criminal liability. The CJC argued that its
jurisdiction was limited to a consideration of “official misconduct”
and that -
conduct will not amount to official misconduct unless it constitutes a criminal
offence or a disciplinary breach that provides reasonable grounds for termination
of [a] person’s services.
In the case of ministers (who are not subject to a disciplinary regime),
conduct must amount to a criminal offence - cf. the “Greiner defence”.
Archivists, like anybody else, must avoid crime. The question we must now
consider is what their role and responsibility is beyond that. The Queensland
defence against official misconduct amounts to this : if they can’t
put you in gaol for it or sack you for it, it isn’t corrupt. The
professional concern goes to the further issue : whether or not the State
Archivist was (or should have been) apprised of the wish of potential litigants
to have the records and what weight (if any) that knowledge should have been
given when deciding whether or not to approve the request for destruction.
4.13 There is no suggestion that a failure to consider the interests of potential
litigants is misconduct in the technical sense. Indeed, one reason for giving
the above lengthy account of one of the legal issues to which the Heiner
case gives rise is to suggest the impossibility of reducing the Archivist’s
responsibility to a case by case adjudication of such matters. The above
account distils lengthy, convoluted, and confusing argument before the Senate
Committee gathered over many months. It eliminates many claims and counter-claims
advanced during the hearing of evidence. Learned lawyers expended much breath
and ink first establishing and then arguing differing interpretations of
the facts.
4.14 If eminent lawyers and investigators with all of the benefits of hindsight
and the leisure to consider matters from every angle cannot reach agreement,
it is simply preposterous to say that the Archivist, confronted with the
necessity of reaching a decision in circumstances similar to those in which
Lee McGregor found herself on or about 23 February 1990, could have done
so. That is not the nature of the Archivist’s discretion. It will be
seen, therefore, that whether or not the Archivist is required to consider
or to be apprised of the wishes of potential litigants in a particular case
(see 6.0 below) is not central. We may even agree with Barnes that establishing
whether potential litigants have legally enforceable rights to records proposed
for destruction has “nothing to do with the archivist”.
4.15 It is not the job of the Archivist to adjudicate disputed rights or
to second guess the courts on a particular case. The Archivist cannot be
expected to evaluate the potential probative value or status as evidence
of this or that folder of documents which she is asked to examine. No more
can she be expected to evaluate the potential historical value of folders
of records placed in front of her. The whole process of calling upon the
Archivist for an opinion about the value of a heap of records (whether for
history, litigation, or any other purpose) is deeply flawed. Such one-off
evaluations may need to be carried out occasionally and for exceptional reasons,
but they do not and should not be allowed to be represented as the
“norm” for archival appraisal.
4.16 The Archivist’s job is to identify categories of records (not examine
piles of them), to analyse administrative processes (not investigate particular
instances), to consider the reasons (pro and con) why records should be kept
and for how long, and to establish a regime to ensure that records are kept
for as long as necessary and for no longer. Ministers and officials need
to be told that they cannot expect to come to the Archivist as Tait did and
to get one-off approval to destroy a particular set of records except in
the most extraordinary circumstances which they will be called upon to explain
and justify. If, despite all this, an archives chooses to establish one-off
evaluation as the norm, then it does indeed impose upon itself the obligation
to investigate the circumstances of each particular case.
4.17 Common sense indicates how the Archivist’s discretion must be exercised
: “there needs to be some regulation on the period of time that certain
records must be kept ...” (see para 6.18 below). It is the Archivist’s
job to determine and enforce those periods and to establish a disposal regime
in which they are routinely applied without reference back to the Archivist
in every instance. It is in determining what the period must be that the
Archivist must be concerned with all of the purposes for which records belonging
to each category may be needed - including the interests of potential litigants.
We will now examine why this is so.
These [records of legal value] are records which involve long and short term
rights of the council or of private citizens and which are enforceable by
the courts, eg contracts, tender documents, building approval permits, leases,
title deeds, etc. ... In general, the record should be retained long enough
to ensure that the rights of the council and of any individual concerned
are fully protected.
QSA : General ... Disposal Schedule for Local Government Records in Queensland
5.1 There appears to be agreement that the Archivist was not informed that
the records had been sought or that legal action was contemplated. So far
so good. From this point on, things are less clear. A variety of reasons
has been suggested for Cabinet’s wish to have the records destroyed.
Michael Barnes, for the CJC, suggested -
It is clear that cabinet made the decision to destroy the documents knowing
full well that Coyne wished access to them. It may be that cabinet made that
decision to destroy the documents on the basis that, in its view, the public
interest in protecting the people who gave evidence before Heiner outweighed
Coyne’s private interest in having access to them .
5.2 The Senate Committee found that a “more pragmatic” explanation
could be inferred from Crown Solicitor O’Shea’s advice of 23 January
1990 -
Naturally Mr Heiner is concerned about any risk of legal action which may
be instituted against him for his part in the inquiry and it would appear
appropriate for cabinet to be approached for an indication that should any
proceedings be commenced against Mr Heiner because of his involvement in
this inquiry, the government will stand behind him in relation to his legal
costs and also in the unlikely event of any order for damages against him
.
The Committee then concluded that -
The most plausible explanation for the shredding of the documents was to
protect the public purse from the expenses of litigation. If in so doing,
the rights of an individual (Mr Coyne) were negated, as he and others assert,
some would argue that they were sacrificed for a reason.
5.3 It will be seen that all these speculations involve, in some degree or
another, a balancing of the reasons for destruction against the reasons for
retention. All of them are expressed as things which might have been in the
mind of Cabinet members when they came to consider whether or not the records
should be destroyed. It is the contention of the CJC and the Crown Solicitor
that the responsibility for making this decision (for balancing the reasons
for and against destruction) lay with the Queensland Government, not with
the Archivist (who, according to the CJC, was limited to a consideration
of historical value). It is the contention of their critics that the Queensland
State Archivist’s role is not limited to questions of historical value
and that she too had a responsibility to weigh all relevant considerations
in reaching her decision.
5.4 On the most altruistic representation of the case, that given by the
Attorney-General in explanation of his own and his colleagues’ actions,
the Queensland Cabinet was acting as an honest broker between the contending
parties, reaching a difficult decision in the best interests of all concerned.
Cabinet was impartial, reasonable, and acting in good faith. A difficult
balance had to be struck between competing interests, but Cabinet could be
trusted as an appropriate arbiter.
5.5 On any other view, Cabinet was an interested party - not standing above
the fray but directly involved. No fair evaluation of the competing claims
could be found there. It may be that, on the balance of considerations,
destruction of the records was “reasonable” but the Queensland
Cabinet was no fit body to decide that because it had reasons of its own
for preferring one outcome over another.
5.6 The Queensland Government wanted to protect its interests in threatened
legal proceedings. This is a perfectly legitimate aspiration but it cannot
then be suggested that the Government itself had no interest in the outcome
of the disposal decision. Its interests as a potentially litigating party
(or, more strictly, as liable for costs of damages awarded against potentially
litigating parties) were bound up in the outcome of the disposal decision
-
... there will be no report. Thus the risk of staff being exposed to legal
action is reduced.
I want to remind you all however of the current Government policy regarding
the legal liability of Crown employees - which you all are.
In short the Crown will accept full responsibility for all claims arising
out of a Crown employees due performance of his/her duties provided these
duties have been carried out conscientiously and diligently.
Cabinet could not plausibly assume legal liability in the matter and impartially
weigh the rights and interest in preservation of its adversaries in the
threatened litigation. In destroying the records, Cabinet usurped the role
of the court (the only body which could have impartially determined the issues
between the contending parties) by pre-empting the possibility of legal action
by the Government’s adversaries to resolve the matter there.
5.7 There is nothing wrong with governments seeking to protect their own
interests. But governments are also charged with protecting the interests
of individual citizens and the two sets of interests may be in conflict.
When the Queensland Government pre-empted court action by destroying documents
it was acting in its own interests. It cannot then turn around and claim
to be acting in everyone’s best interest. Only an independent arbiter
can do that and in determining whether official records should be destroyed,
that is the role of an independent State Archivist.
5.8 In these circumstances, the only way in which a truly fair and equitable
outcome could have been reached (which might well have been that, on the
balance of interests involved, the records should have been destroyed) would
have been for the matter to have been judged by a truly independent authority,
with no interest in the outcome, which could be trusted to fairly evaluate
and (where necessary) protect the citizen’s rights and entitlements
against the concern of Government to defend itself against potential legal
action.
5.9 This kind of reasoning has long been advanced as the rationale for an
independent archives authority capable of evaluating disposal action by
balancing, amongst other things, the competing interests of Government and
its citizens in the destruction/preservation of records. It was used by the
U.S. District Court in 1980 when issuing an injunction to prevent the National
Archives and Records Service of the United States (NARS) and the Federal
Bureau of Investigation from proceeding with a scheduled destruction of records
sought under Freedom of Information (or potentially subject to FOI requests).
The court allowed the injunction in part on the argument that NARS had not
taken sufficient account of the rights of members of the public, including
persons claiming to have suffered legal wrongs. The court ruled -
It is thus clear that the Archivist never discharged his statutory responsibility
to make independent judgements concerning the record retention and destruction
practices of the Federal Bureau of Investigation. This neglect, without more,
fatally flaws the legality of any further destruction of records by the FBI
...
... Congress has determined that federal record-keeping shall accommodate
not only the operational and administrative needs of the particular agencies
but also the right of the people of this nation to know what their government
has been doing. The thrust of the laws Congress has enacted is that governmental
records belong to the American people and should be accessible to them ...
The thrust of the actions of the FBI, perhaps naturally so, has been to preserve
what is necessary or useful for its operations. The Archives, which should
have safeguarded the interests of both the FBI and the public, in practice
considered only the former.
5.10 Of even more significance, of course, is the importance of an independent
archives authority in preventing the untoward destruction of evidence of
government corruption and wrong-doing and in establishing a regime of records
management which supports the public interest in government accountability.
A government whose right to destroy records is limited only by an independent
evaluation of their historical value can remove at will all evidence of
corruption and wrong-doing and thereby effectively frustrate the fight against
corruption.
5.11 The Crown Solicitor’s justification for the Government’s action
gradually narrows down to an analogy between Government and any other private
litigant -
In a free society, a person (and this includes the Crown) does not need to
find an enabling law to enable that person to destroy his or her own property.
In a free society a person (which, as I said, includes the Crown) may do
what he likes with his property, including destroying it, unless there is
some positive law preventing its destruction.
Had the Heiner documents been the property of Mr Heiner, and not the
Crown’s, he could have destroyed them without the Chief archivist’s
permission but, because we ultimately came to the conclusion that the property
in them was in the Crown, the Chief Archivist’s permission was necessary
and, in my opinion, she was quite entitled in the circumstances to grant
that permission .
There is no suggestion here that Queensland’s public records belong
to the people. According to Crown Solicitor O’Shea, Queensland’s
public records belong to the Government and the Government has no obligation
or responsibility to its citizens which is not analogous to that of any other
“person” in a free society (except to submit proposed destructions
to the Archivist for approval).
5.12 The Government is not just any other private litigant. The State has
a responsibility to safeguard citizen’s rights and entitlements. Parliament
has established a system of checks and balances, amongst which the requirement
for the Queensland Government to submit its intention to destroy public records
for independent assessment by the State Archivist may be included. Where
a conflict (or potential conflict) may be found between the executive’s
actions and the citizen’s interests, the latter must be protected by
the intervention of an independent authority, free from potential control
by the executive, whose job it is (in part) to look out for the citizen and,
in the final analysis, to weigh competing interests in retention/destruction.
That is why, in matters relating to disposal of public records, it is the
Archivist and not the executive or any of its arms which must decide.
5.13 It appears, however, that the State Archivist of Queensland was never
placed in possession of the facts which would have enabled her to make such
an evaluation. We must now examine why this was so.
6.1 It is a common, but flawed, view that archives are the permanent records
selected for historical purposes and that government archivists are concerned
with the management of records only to the extent of determining which of
them should be preserved as "historical records". On this view of its
responsibilities, the archives authority should confine its evaluation of
requests for approval to destroy records solely to the issue of whether the
records in question should survive for historical research purposes.
6.2 Is any such limitation of purpose to be found in our archives laws? One
has to consider the stated purpose of the archives law and the specific
provisions relating to disposal. In the Queensland legislation (Libraries
and Archives Act 1988), the Archives (QSA) is established, inter alia -
50. ... to promote the making and preservation of the public records of
Queensland, to exercise control over their retention and disposal, to provide
facilities for their storage and use ...
Public authorities in Queensland are required, inter alia, to -
52. ...
(a) cause complete and accurate records of the activities of the public authority
to be made and preserved;
(b) take all reasonable steps to implement recommendations of the State
Archivist applicable to the public authority concerning the making
and preservation of public records.
Disposal is regulated by decision of QSA -
55. ...
(1) A person shall not dispose of public records other than by depositing
them
with the Queensland State Archives -
(a) unless -
(I) the State Archivist has authorized the disposal ...
6.3 It is argued by some that regulatory powers such as these should be "read
down" because their only object is to ensure the deposit in the archives
of records wanted for historical research purposes. It is said that the
regulatory powers are conferred to ensure historical records get into the
archives and for no other purpose. The archives is not (and should not be)
empowered to regulate records management in any way which implies a wider
responsibility or a concern with any other purposes for which records might
be kept. Government agencies are required to keep “full and accurate
records” for no other reason than ensuring that a good historical record
can subsequently be extracted therefrom.
6.4 This is exactly the line of argument used by the CJC to defend itself
from allegations that it failed to reach an adverse finding on the circumstances
surrounding the destruction of the Heiner documents -
Mr Barnes- ... we have to look at the archivist, because Mr Lindeberg is
concerned that her actions in authorising the destruction were inappropriate
... The archivist’s duty is to preserve public records which may be
of historical public interest; her duty is not to preserve documents which
other people may want to access for some personal or private reason. She
has a duty to protect documents that will reflect the history of the state
... In my submission, the fact that people may have been wanting to see these
documents - and there is no doubt the government knew that Coyne wanted to
see the documents - does not bear on the archivist’s decision about
whether these are documents that the public should have a right to access
forevermore ... That is the nature of the discretion she exercises. The question
about whether people have a right to access these documents is properly to
be determined between the department, the owner of the document and the people
who say they have got that right. That is nothing to do with the archivist,
so I suggest to you that the fact that was not conveyed to the archivist
is neither here nor there. That has no bearing on the exercise of her discretion
.
It follows from the CJC view that when agreeing to or refusing an agency's
request to destroy records QSA should not concern itself with any use the
records might have - save for historical research. It is not the archives'
responsibility, they say, to consider any other uses or any other requirements
to preserve records. This latter responsibility rests exclusively on the
department concerned, and the exercise of an independent responsibility by
the archives is both unnecessary and detrimental.
6.5 Accountability through records management ultimately involves a concern
with what records are created. This has been recognised in Victoria, Queensland
and Western Australia. In Victoria and Queensland, the archives law imposes
on agencies a statutory obligation to create and maintain "full" or "complete"
and "accurate" records. In Western Australia the obligation is to maintain
a system of records management with the advice and assistance of the archives
which is required to offer advice and assistance, inter alia, on the creation
of records. These duties are quite separate from the obligation to submit
to archives regulation before destroying any record.
6.6 In some cases (e.g. NSW), it is true that the archives is not called
in until an agency decides it wishes to dispose of its records. The archives
then has the final say. This is the clearest case where it might be argued
that the intention is that the only consideration relevant for the archives
is whether (in its view) the records should be preserved for historical research.
6.7 Although the NSW Act does not give the archives explicit responsibility
for appraising records on public interest or accountability grounds, it does
not explicitly limit the archives to historical research grounds either in
determining whether to agree to destruction. Since there is (neither in NSW
nor in any other Australian jurisdiction) any other general statutory regulation
of disposal or any statutory requirement on public sector managers to have
regard for accountability and other public interest purposes in determining
whether or not to keep records, it is legitimate to ask whether it was the
intention of the legislatures when passing archives laws that the archives
should have regard solely to consideration of historical research values.
To put the matter more bluntly, on what words in the Queensland Act does
CJC base its argument that QSA should ignore :-
· any other reason it may perceive for keeping records even though they
have no value for historical research,
· any public interest (other than the need for an historical record)
bearing adversely on the agency's wishes to destroy the records, or
· “the fact that people may have been wanting to see” the
records,
when considering whether to agree or withhold consent to an agency's request
for approval to destroy records?
6.8 It may be arguable that as matters stand in NSW, South Australia, and
Tasmania (all of which give their archives power to veto destruction decisions
and to take custody when they do but no explicit role in records management),
it was intended the archives should concern itself primarily with preservation
for historical purposes.
6.9 The view of the archivist’s role adopted by the CJC is not tenable
in the case of the Commonwealth, Victoria, Queensland, or Western Australia
(all of which provide for the involvement by the archives in records management).
The wider view of the Archives’ role in those cases is strengthened
by the fact that in the three States mentioned the legislatures have taken
the logically necessary step of requiring agencies to "make" full and accurate
records in the archives law.
6.10 An alternative view of the archivist’s responsibilities in narrow
legal terms was developed by the Queensland Crown Solicitor who asked only
what actions of the State Archivist are expressly permitted or prohibited?
This view fails to evaluate the propriety of the manner in which the
Archivist’s discretion is exercised - whether it is done fairly and
justly.
6.11 They are not the same thing. The test for propriety is broader than
the test of legality. It is possible to act within the black letter of the
law and still behave unfairly or unjustly. It is possible to argue that fairness
and justice required the Archivist to consider whether or not the records
were needed to satisfy the rights and entitlements (or merely the wishes
and curiosity) of an individual citizen, that the Queensland Government was
derelict in failing to supply her with relevant information on that issue,
and that the Archivist should have taken steps to satisfy herself on this
point before approving the destruction.
6.12 No one has disputed that the destruction occurred despite an expressed
wish by a citizen to gain access to the records to support possible legal
action. Indeed, it seems pretty much conceded that this was the reason for
the destruction. Instead, it has been argued by CJC that these matters are
irrelevant to the Archivist’s decision whether or not to destroy records
and that the sole role of the Queensland State Archives is to reach a decision
on the value of the records as “historical” without reference to
any other matter which might be relevant to retention/destruction.
6.13 If the CJC’s view goes unchallenged, it helps to lower the benchmark
for archival responsibility. If that is allowed to happen, government archivists
had better watch out. Aggrieved whistleblowers come from behind. All the
forces of established interests are ranged against them. But they keep coming
and each case prepares the ground better for the next one. Next time someone
is aggrieved in a disposal case the issues will be better defined because
of what has happened in the Heiner Case.
6.14 The Heiner Case helps define the issues for the next person who is aggrieved
by destruction of public records which denies them the opportunity to take
their case further. Sooner or later someone in that position is going to
make the connection between the wrong they feel when the records needed to
make their case are denied them and the compliant archivist who made that
possible. When that day comes, archivists better have answers on where their
responsibility lies.
6.15 In those circumstances, it is unlikely that the Queensland defence will
avail them much. It rests on two mutually inconsistent planks -
· The narrow legal arguments of Crown Solicitor O’Shea that :
¨ there was no objection to destruction absent legal proceedings which
had actually been instituted or “some positive law preventing”
it,
¨ the government clearly had the right to destroy “its own
property” in
accordance “with a Statutory regime which permitted its destruction”,
and
¨ the Archivist had a “wide discretion ... to authorize
destruction” and was
“clearly within her rights” in so authorizing it on this occasion;
and
· The policy argument launched by CJC representative Barnes that the
Archivist’s discretion is limited to questions “of historical public
interest” and that other reasons which might exist for retaining records
have “nothing to do with the archivist”.
6.16 Taken separately, either of these arguments might be sustainable (though
the O’Shea view is clearly unhelpful in determining what factors the
Archivist must consider). Taken together, they make a nonsense. On the one
hand, destruction is a matter for the Archivist alone and she has a wide
discretion in the exercise of which she is not obliged to consider any matter
pertaining to citizens’ rights or interests because there is no express
legal or statutory obligation for her to do so. On the other hand, the Archivist
is precluded from giving consideration to citizens’ rights or interests
because such consideration is outside the area of her discretion despite
the fact that there is no express legal or statutory restriction preventing
it.
6.17 In the absence of statutory appraisal criteria and with no case law
to speak of, the scope of the Archivist’s responsibilities cannot be
found simply by looking for express legal or statutory obligations. The attempt
to find it there reached its reductio ad absurdum in subsequent correspondence
between the State Archivist and the Queensland Justices’ and Community
Legal Officers Association (QJA) :
QJA to State Archivist 19 May 1995
(c) Is there any legal/legislative provision governing or directing the provision
of advice/information relevant to enabling the state archivist to satisfy
criteria for decisions to retain or dispose of public documents?
(d) Are you aware of any legal/legislative provision which requires that
the State Archivist is to/must be alerted to any existing or potential legal
demand for access to or retention of public documents?
State Archivist to QJA 31 May 1995
(c) I am not aware of any legal/legislative provision governing or directing
the provision of advice/information relevant to enabling the State Archivist
to satisfy criteria for decisions to retain or dispose of public records;
(d) I am not aware of any legal/legislative provision which requires that
the State Archivist is to/must be alerted to any existing or potential legal
demand for access to or retention of public records.
Quite so, but by the same token there can be no “legal/legislative
provision” which prevents the Archivist from considering relevant matters
(the alternative is for her to decide by mere whim) or from at least asking
for relevant information - even if there is no obligation to provide it.
You can’t have it both ways. The true nature of the Archivist’s
responsibilities cannot be established within such narrow limits.
6.18 The bewilderment of non-professionals when our archives laws fail them
instinctively seeks for redress in a wider view of recordkeeping
responsibilities. This was apparent in testimony given before the Senate
Committee in another (unrelated) matter involving “missing documents”
sought under FOI -
Senator ABETZ- As a matter of principle you talk about the disappearing of
documents, and previously we have heard what the criminal code here requires
when legal proceedings are underfoot and whether you are allowed to destroy
documents. From your experience, do you believe that the current law is
sufficient or do you think it ought to be extended to make it an offence
to destroy documents which a person must reasonably believe capable of being
used in proceedings sometime in the future?
Mr Jesser- I am not even sure whether it is as specific as that. An organisation
must keep archival records for some period - so that it can conduct an
investigation or just as normal correspondence, it must surely keep back-up
discs for 12 months or two years or something like that. It seems to me to
be slightly unreasonable to say, ‘We don’t keep any back-ups’
or ‘We don’t know what happened last week in our correspondence.
It has all disappeared.’ I think that there needs to be some regulation
on the period of time that certain records must be kept ...
Of course an organisation must keep archival records for some period “so
that it can conduct ... normal correspondence”. Of course, “certain
records must be kept”. The basic human need for records could be put
more expertly but hardly more eloquently. It is the very basis of the
recordkeeper’s mission, our reason for being, the most fundamental thing
about us. It is not, however, in legal opinions or through statutory provisions
alone that this need will be satisfied. We know that it must be satisfied
by establishing a reliable and trustworthy recordkeeping regime and through
the integrity and diligence of recordkeepers. If we fail this trust, however,
and allow the public perception of our mission to be reduced to
“legal/legislative provision” because we have not articulated and
re-affirmed the nature of our professional responsibilities at every opportunity
or (what is worse) allow others like the Queensland CJC to misrepresent our
mission unchallenged, then we can blame no one but ourselves when the public
is ignorant of or loses faith in our role.
6.19 The practice of archivists in Queensland and elsewhere, though not founded
on express “legal/legislative” provisions is described in the remainder
of QSA’s reply to QJA dealing with criteria applied and sources of
information used :
The attached leaflet detailing the appraisal process sets out the general
criteria for retention of public records [including consideration of
“details which may serve to protect the civil, legal, property or other
rights of individuals or the community at large”].
The main source of information relied on is contact with the agency whose
records are being assessed, and where necessary, with other Government agencies.
this would be supplemented by published documentation as appropriate. archives
staff also tend to build up a good working knowledge of the functions and
operations of government agencies.
6.20 If the Archivist asks for relevant information and it is not provided,
she can refuse to agree to destruction. If false information is provided,
then the responsibility for thwarting her attempt to inform herself of relevant
considerations is placed clearly where it belongs - on the agency which trades
in untruth - and the propriety of the agency’s action can be judged
by appropriate authority (e.g. the CJC or the Ombudsman). If the Archivist
doesn’t even try to find out what needs the records may serve before
she agrees to their destruction, the question becomes whether this manner
of exercising the discretion is proper - regardless of any strict obligations
which may or may not be imposed by legal/legislative provisions.
6.21 Is there anything else the prudent archives authority can do to ensure
that (in the absence of strict “legal/legislative provision”)
citizens’ interests in records retention are protected? Two measures,
at least, suggest themselves.
7.1 The point was several times made that the Government did not advise QSA
of the possibility of litigation and that it would be unreasonable to expect
QSA to be able to find out in such cases whether proceedings were in prospect.
It is clear that no archives can expect to be aware of all potential uses
for records relating to a particular matter. Indeed, it has been argued above
that consideration on a case-by-case basis is both an inefficient and an
unsatisfactory method of discharging the Archivist’s discretion (see
section 4.0).
7.2 There are steps which may be taken by the prudent archivist to limit
the ill-effects of the absence of “legal/legislative provision”
requiring or enabling the archives to inquire more closely into the circumstances
of each case.
7.3 One way is for archivists to refuse to grant approval for destruction
relating to a particular matter in any circumstances (or only in exceptional
circumstances, where the agency makes a special case). The archivist could
establish routine procedures governing the timing and processes for disposing
of records belonging to different categories of records and then treat with
suspicion any request to destroy records concerning a particular instance
outside of these normal procedures.
7.4 On this basis, QSA’s response to cabinet’s request would have
been “no, we have determined that records of inquiries such as this
are to be destroyed x years after the termination of the inquiry and we see
no reason to depart from normal practice in this case”. Cabinet would
then have been obliged to postpone the proposed action and deal with the
records in a routine rather than an extraordinary way or else explain to
the Archivist the reasons it was in haste to get rid of them.
7.5 In reaching its decision on the disposal of inquiry records (in advance
of any request for approval on a specific instance), QSA would have already
considered the balance of possible uses to which records of this type might
be put and have come to an evaluation of the competing interests (including
the entitlements of citizens wanting to subpoena records in legal action
against the government) - on general terms and not in relation to any particular
case before government at the time a request for approval was received. Such
generalised rules of administrative action - though they could not be guaranteed
to work to the citizen’s advantage in all cases - would at least establish
a minimum standard of routine conduct in which victimisation would be more
difficult.
7.6 Another way is for archivists to place a caveat on all destruction approvals
voiding the permission in specified circumstances. Thus, both the Victorian
Public Record Office and the Australian Archives operate under a general
instruction to departments which makes void any destruction approval where
a freedom of information request has been lodged. It would be possible (and,
in the light of the Heiner case, arguably desirable) for government archives
to issue generalised instructions making explicit the position of records
due for destruction where the agency has been made aware of a citizen’s
intention to take action to obtain access. It is unlikely that an indefinite
postponement of destruction could be made in such cases, and it might indeed
be determined that no postponement of any kind should be mandated. But at
least a policy would exist, a standard would have been established, a bench-mark
would be provided to test the propriety of agencies’ actions in particular
instances, there would be evidence that the matter had been considered and
citizens aggrieved by the outcome in a particular case could be assured they
had not been singled out and know why they were unable to get any further.
7.7 The point is that such questions do come within the scope of an evaluation
of what is a proper, responsible, and fair exercise of the archivist’s
discretion and they should be considered by the archives authority (in rejection
of the CJC’s submission that they are none of the archivist’s business)
not merely ignored.
8.1 Consideration was given above (6.0) to the validity in law of the CJC’s
contention that the Archivist was limited to “historical” factors
in the exercise of her discretion. It is now necessary to consider the policy
implications. The CJC’s position can be bolstered by arguing that -
· regulation of records management is adequately provided for by other
means - the involvement of the archives authority is unnecessary because
it adds nothing to existing safeguards;
· external regulation for any purpose other than the identification
of an historical record impinges on the proper role and responsibility of
record creators - the involvement of the archives authority is detrimental
because it detracts from and interferes with the work of administration.
8.2 In response to the first of these assertions, it is clear that the role
of the archives authority is not exclusive. The regulation of disposal by
the archives is not intended to relieve the chief administrator of any
obligations and responsibilities which he has, arising from any other obligation.
The archives' regulatory role does not (as argued) derogate from, or in any
way substitute for, other mechanisms of control and accountability - either
existing or which may be created in future.
8.3 The Archives has, in effect, a veto over an agency's decision to destroy
records - it cannot compel destruction. Likewise, approval from the Archives
cannot (of itself) relieve an agency of its responsibilities in respect of
other mechanisms.
8.4 What then is the "value added" by the Archives? Clearly, it lies in the
requirement that agencies submit their records practices to external scrutiny.
When it comes to the maintenance and destruction of documents, agencies (and
their chief administrators) may be in a situation of conflict of interest
or subject to political pressures.
8.5 The requirement to formally submit their records practices and disposal
decisions to external scrutiny :-
· provides additional safeguard for the public interest in records retention
(to ensure that governments cannot “cover up” and a safeguard too
for individual citizens in conflict with government;
· establishes routine procedures for documenting the decisions taken
(through archives' disposal schedules and destruction authorities) so that
if any question of what was authorised later arises it can be settled by
reference to those records; and
· it should be pointed out, it provides the public servants who are
records creators with some measure of protection from undue political
interference in the process of keeping and destroying “full and
accurate” records.
8.6 No Minister or official determined to destroy or falsify the record will
be prevented by archives law from doing so. What archives procedures do is
to establish a norm, a routine procedure, from which such actions can and
usually will be seen to depart, thus making detection more likely. Brian
Bourke, it was alleged, was personally supervising the "stripping" of files
in his department until someone pointed out that this was not correct procedure.
It is the purpose of archives laws to establish and police such routine
procedures so that departures from them (which can't always be prevented)
will at least be obvious and will be seen to be outside acceptable limits.
8.7 This is the response, incidentally, to those who argue the futility of
archives regulation which has never been enforced through prosecution and
fine or imprisonment in this country. The value of the archives regime is
that it establishes a bench-mark (a test) by which good and bad behaviour
can be measured and it creates an environment in which departures from the
bench-mark are more likely to be found out. Just as financial auditing has
been effectively applied to both public and private enterprise, so to can
archival regulation be applied - if there is the will to do it. Statutory
provision simply provides its basis and authority for doing so.
8.8 Is the regulatory role detrimental to efficient administration? Certainly,
the archives procedures overlay administration with “additional”
requirements, but do they add to the "burden" on chief administrators? Good
archives and records management practices are, after all, meant to assist
and foster efficient administration, not to weigh it down with unnecessary
burdens. How, it might reasonably be asked, is the regulation of disposal
for the purposes of accountability any more of an interference in "efficient
management" than regulation of disposal for research purposes?
8.9 Nor can it be argued that the additional safeguards proposed here (7.0
above) represent an increased workload on top of current practice. Quite
the contrary. Nothing could be more wasteful of resources than the cumbersome
case by case appraisal which routinely passes for archival evaluation. If
attention were paid instead to developing and implementing disposal policies
and establishing recordkeeping regimes which focussed on documentation of
government activity (of which disposal is merely an expression) rather than
evaluation of files and folders when requested to do so, it would be a much
better use of available resources. Needless to say, under such a regime cases
like this would not arise because the opportunity to destroy the Heiner documents
as a one-off, outside of routine procedure, would simply not have been available.
Think of that - all the money that could have been saved if Cabinet need
not have met about it, the Crown Solicitor need not have deliberated about
it, and the CJC need not have investigated it or subsequently defended its
actions.
8.10 Is it, in any case, suggested that accountability requirements should
be subordinate to efficiency? What tenable view of public sector efficiency
could be based on a refusal to acknowledge and serve the public interest
in accountable administration? For such arguments to be sustained, the alleged
"inefficiencies" and costs of accountability itself would have to be
demonstrated, not merely assumed.
8.11 Should record creators be the sole judges of the public interest in
preserving their records? Clearly not, since all mechanisms of accountability
provide some kind of external and independent judgement as to what constitutes
public interest and in the balance, where necessary, of individual rights
and entitlements with public interest represented by governmental policy.
These judgements necessarily cut across the responsibility which a government
agency has for efficient management.
8.12 The better view is that departments and agencies must be responsible
for efficient administration subject to compliance with the rules and regulations
established by or in accordance with the law to serve the needs of government,
the public interest, and the individual citizen. If this “infringes"
on administrative independence, archives law must similarly infringe because
archives laws are concerned with the survival of full and accurate records
upon which such accountability mechanisms depend for their effectiveness.
8.13 No government or private organisation concerned with its own operational
efficiency and ultimate survival (let alone any concern for the public interest)
could acknowledge such "independence" from accountability. History (and in
this country, very recent history too) tells us that inefficiency, corruption,
and mismanagement thrive in the dark, not under the spotlight.
8.14 The Queensland Electoral and Administrative Review Commission found
that its investigation of alleged irregularities in electoral redistribution
was thwarted by the lack of an adequate public record. It concluded that
the State’s archives system had to be upgraded and strengthened. Can
anyone suppose, as CJC would apparently have us believe, that EARC’s
concern was for the lack of an adequate historical record?
8.15 The Western Australian Royal Commission into the W.A. Inc. scandals
concluded that its investigations were hampered by gaps in the official record.
It recommended that the Western Australian archives system should be upgraded
and strengthened. It is nonsense to suggest, as CJC must contend, that the
Royal Commission was worried solely about the impact on scholars.
8.16 There must be external regulation of records management in the service
of accountability. The obligation to create full and accurate records, manage
them properly, and keep them for purposes other than those of the agency
which produced them own has to be provided for. Where is it provided for
apart from the archives laws?
8.17 No Australian court case has tested the question : to what considerations
(or purposes) should the archives have regard in deciding whether or not
to consent to an agency's request for approval of destruction? It has, however,
been established practice here and elsewhere for archives to regulate disposal
on the grounds of public purposes justifying retention beyond the wishes
of the agency concerned. Thus, in Victoria, the Public Record Office routinely
requires agencies to retain records longer than they wish where an FOI interest
is established or deemed likely. All Victorian destruction authorities and
schedules carry a caveat voiding the destruction authority for any documents
subject to an FOI request until the request is granted or all appeals are
exhausted.
8.18 Whether the archives has a broad or narrow role comes down to this :-
Can an archives authority having general power to approve or disallow
applications by government agencies to destroy public records limit its
consideration of the matters upon which it must satisfy itself before granting
its consent to a consideration of historical research purposes only in the
absence of the clearest indication from the legislature that this is what
was intended?
No archives should feel justified, when exercising its power to approve or
forbid the destruction of public records, in wholly disregarding all other
considerations apart from the needs of historical research.
8.19 Archives laws provide the only general statutory regulation of which
records are kept and which destroyed. Other mechanisms such as FOI, the
Ombudsman, the courts, inquiries, reviews are all limited and circumscribed
in their effect by what records do in fact exist when they are brought into
deal with a particular instance. They very often have to be invoked by an
interested party. They are not in a position usually to intervene before
the fact. No prior decision to destroy relevant records can be overturned
or ameliorated by the operation of those mechanisms.
1.0 BACKGROUND
2.0 ISSUE ONE : DOES THE ARCHIVES HAVE AN “UNFETTERED” DISCRETION
IN DECIDING ON DISPOSAL OF OFFICIAL RECORDS?
3.0 ISSUE TWO : IS THE ARCHIVES OBLIGED TO OBEY GOVERNMENT DIRECTION IN
DISPOSAL CASES?
4.0 ISSUE THREE : SHOULD RECORDS BE DESTROYED IF THEY ARE REQUIRED IN
EVIDENCE?
5.0 ISSUE FOUR : SHOULD THE ARCHIVES DISALLOW DESTRUCTION IN THE INTERESTS
OF POTENTIAL LITIGANTS?
6.0 ISSUE FIVE : WHAT IS THE PURPOSE OF THE ARCHIVES DISCRETION?
7.0 ISSUE SIX : WHAT CAN THE ARCHIVES DO TO PREVENT DESTRUCTION ADVERSE
TO CITIZEN’S INTERESTS?
8.0 ISSUE SEVEN : SHOULD THE ARCHIVES BE LIMITED TO QUESTIONS OF
“HISTORICAL VALUE”?