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Archival Legislation AArrcchhiivvaall LLeeggiissllaattiioonn for Commonweallth Countriies Dagmar Parer Association of Commonwealth Archivists and Records Managers Project Co-ordinator and report compiler Dagmar Parer eKnowledge Structures P.O. Box 186 Clifton Beach Cairns 4879 Australia ASSOCIATION OF COMMONWEALTH ARCHIVISTS AND RECORDS MANAGERS (ACARM) Contents Acknowledgements Project Background 1 Archival legislation Transfer 1 1.1 Why have legislation 1 1.2 What is the objective of legislation 1 1.3 Legislation and regulation 1 1.4 Approaches to legislation 1 2 Present archives legislation 2 3 Previous studies 4 4 Review of legislation 5 4.1 Reviews underway 5 4.1.1 Australia 5 4.1.2 New Zealand 6 4.1.3 Canada 6 5 Tomorrow’s archival legislation 7 5.1 Archival framework 9 5.1.1 Objects clause 9 5.1.2 Placement of archives 10 5.1.3 Governance 11 5.1.4 Administration 13 5.1.5 Role of public archives 13 5.1.6 Role of the Archivist 15 5.1.7 Powers of the Archivist 16 5.1.8 Reporting requirements 18 5.1.9 Structure and organisation within the archives 19 5.1.10 Ministerial responsibilities and relationship 19 5.1.11 Inalienability and imprescribility of public archives 19 5.1.12 Non-governmental records 21 5.1.13 Definitions 23 6 Roles and responsibilities 28 6.1 Obligations to public records 28 6.2 Archives or records management or both 28 6.3 Ownership of public records 29 6.4 Public records of a certain age 30 6.5 Records management 31 6.5.1 Electronic records 32 6.6 Records management plans 33 6.7 Standards and guidelines 34 6.8 Legislation for standards 36 6.9 Compliance with standards 36 6.10 Monitoring compliance with standards 37 6.11 Archives management 37 6.12 Appraisal 37 6.13 Disposal 38 6.14 Transfer 39 6.15 Custodial arrangements 40 6.16 Controlling agency status 41 6.17 Arrangement and description 41 6.18 Deposit of official publications ................................................................42 6.19 Preservation ...........................................................................................42 6.20 Right of inspection..................................................................................42 6.21 Powers of enforcement...........................................................................42 6.22 Ministerial, parliamentary, court and royal commission records .............42 7 Impact of other legislation.......................................................................44 7.1 Freedom of information ..........................................................................44 7.2 Privacy....................................................................................................44 7.3 Evidence.................................................................................................44 7.4 Other acts...............................................................................................45 8 Access to public records.........................................................................46 8.1 Provision of public access ......................................................................47 8.2 Open access period................................................................................48 8.2.1 Commencement of ‘archival period’ .......................................................49 8.3 Tiered access .........................................................................................49 8.4 Accelerated access ................................................................................49 8.5 Special access........................................................................................49 8.6 Access to non-current records................................................................50 8.7 Access to non-public records..................................................................51 8.8 Access to exempt categories..................................................................51 8.9 Discretionary release of closed period and exempt records ...................53 8.10 Sunset clauses .......................................................................................54 8.11 Permanent exemptions...........................................................................54 8.12 Security and intelligence records............................................................55 8.13 Appeal provisions ...................................................................................55 8.14 Charging for services..............................................................................55 8.15 Provision of finding aids..........................................................................56 9 Preservation...........................................................................................57 9.1 Preservation and record safety...............................................................57 9.2 Reproduction of records .........................................................................57 10 Miscellaneous.........................................................................................58 10.1 Regulations.............................................................................................58 10.2 Admissibility of examined or certified copy of records ............................58 10.3 State copyright in unpublished open period record.................................58 11 References ..................................................................................................59 Annex 1 - Decision Impact Assessment tables ...........................................60 Annex 2 - Project rapporteurs .....................................................................71 Section 2 - Regional reports .......................................................................73 Acknowledgements I would like to thank ACARM for initiating this most worthwhile project and for appointing me as Project Co-ordinator and the Commonwealth Foundation for providing the bulk of the funding. A special thanks goes to Michael Roper for his guidance and constant support throughout the project. I would also like to thank the National Archives of Australia for being a co-sponsor and for providing the services of Mr. Ted Ling, Director Archival Legislation. Ted was a constant source of help regarding legislative initiatives being undertaken by the National Archives. This report would not have been possible without the dedicated work of the nominated project rapporteurs. They gathered the prime material for the report and assisted throughout the compilation of the report. A special thanks is to Ms. Cathy Bailey who took on responsibility for the compilation of Section Two of the study, the Commonwealth archival legislation regional reports. Project Background The objective of the project was to provide Commonwealth countries with a report outlining modern best practice archival legislation principles which archivists could draw upon when modernizing records and archives legislation or introducing freedom of information and privacy legislation. The project methodology involved the rapporteurs identifying present archival and information legislation for their areas of responsibility, forwarding electronic or paper copies of such legislation to the project co-ordinator for analysis and assessment. This report is based on the findings of that analysis. A workshop on the findings of the project was run at the ICA Congress, Seville, September 2000. Archival Legislation 1.1 Why have legislation? No government can operate without records, because they document its actions. Additionally, government and civil servants must account for their actions to the citizens. It would be impossible to be accountable without records, if government records were non-existent or poorly managed. Government must also protect the rights of its citizens, the environment, land rights and territorial integrity. Past records must be used to plan for the future of the nation and serve as part of its heritage. Governments therefore, often protect their records more rigorously than private organizations or business entities do. Governments use legislation to ensure that its records and archives are appropriately managed and preserved over time for accountability and historical reasons. 1.2 What is the objective of legislation? Records and archives legislation is an essential component of the wider legislative base of accountable and effective government. I t provides the essential framework that enables a national records and archives service to operate with authority in its dealings with other agencies of the state. The precise format and language of legislation is determined by legal draftsmen (such as the Parliamentary Counsel), but it is essential that senior managers in records and archives institutions be able to present a sound and professional case for what the legislation should cover. 1.3 Legislation and regulation Records and archives legislation may be composed of both primary and secondary legislation. Primary legislation (such as acts, decrees, and ordinances) is enacted by parliament or some other supreme legislative authority. Secondary legislation (such as statutory instruments, rules, regulations) is promulgated, usually by a minister, under powers conferred by the primary legislation. Supporting the legislation will be other normative and international standards and procedural guidelines and instructions. 1.4 Approaches to legislation Two approaches can be taken when framing national records and archives legislation: * detailed prescriptive primary legislation * a general framework
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