Record keeping and human rights

“...the concentration of power and the subjection of individuals will the same proportion as their ignorance.” 

Alexis de Tocqueville, Democracy in America, Part II, Book IV

The complaint about Immigration New Zealand from the New Zealand Council for Civil Liberties to the Chief Archivist, which is posted on this website, has highlighted the importance of being vigilant about the activities of government to ensure full records are created and maintained.  The complaint stems from the recent news story about Immigration New Zealand issuing a directive to its workers not to record (i.e. omit) any information or rationale that may lead to extra paperwork and be subject to scrutiny in judicial review or complaint to the Ombudsman.

Open and democratic government

Limited access to information helps to breed corruption in a government, and laws giving access to information are designed to counter this.  These laws promote honesty in government through accountability and transparency by providing the citizens with a legal right to obtain full and accurate information about the activities and decisions of their government.  This in turn increases democracy, and confidence in the governmental process.  The right to information is a fundamental requirement for citizens to be able to fully understand government policies, which in turn can help to create a more informed public who can then more ably take part in the democratic process and, ultimately, can better hold a government to account. 

The importance of freedom to information is recognised internationally.  The Law Ministers of the Commonwealth declared in 1980  “public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information”.[1]  In 1995 the United Nations Special Rapporteur on Freedom of Opinion and Expression noted that “the right to seek or have access to information is one of the most essential elements of freedom...”.[2]  In 1999 the Law Ministers of the Commonwealth adopted principles that considered the right to know and freedom of information to be a human right. 

Openness and NZ law

Here in New Zealand the Official Information Act (OIA)(1982) states that one of its purposes is to encourage the more effective participation of people in the making and administration of laws and policies, and promoting the accountability of Ministers and officials.[3]  The Bill of Rights affirms the right to seek, and receive information.[4]   The Declaration on Open and Transparent Government, which was approved by Cabinet on 8 August 2011, stated, “building on New Zealand’s democratic tradition, the government commits to actively”.  In noting that access to information is a right not a privilege, the declaration recognised that the government holds data on behalf of the New Zealand public, and that releasing it encourages more involvement in government decision-making.[5]

Openness without record keeping is pointless

However without the government creating and maintaining full and accurate records regarding their activities and decision-making, any law guaranteeing access to information is worthless.  An accountable and effective record-keeping programme is essential to the provision of access of information to the public.  In the Declaration of Open and Transparent Government it was recognised that the data and information that the government holds on behalf of the public must be open, trusted and authoritative, and well managed.  This has been highlighted by the case of the Immigration New Zealand directive not to record information.  This directive directly contradicts the Public Records Act 2005, which states that one of its purposes is to enable the Government to be held accountable by “ensuring that full and accurate records of the affairs of central and local government are created and maintained”.[6]

Even with strong legislation in place that guarantees the public access to information, if there is no proper creation and management of records then government simply cannot provide access to the information that citizens may request.  If governments do not maintain these records then they cannot be transparent in their actions or held accountable for those actions, in effect rendering any freedom to information acts toothless.

[1]Promoting Open Government: Commonwealth Principles and Guidelines on the Right to Know’ background paper for the Commonwealth Expert Group Meeting on the Right to Know and the Promotion of Democracy and Development, London, 30-31 March 1999.

[2]Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/1995/31, 14 December 1995, para. 35.

[3]OIA Part 1, Section 4

[4]Part 2, Section 14

[6]Part 1, Section 3