public access to legislative

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Records Management JournalPublic access to legislative drafting files

Shannon TomlinsonArticle in format ion:To cite this document:Shannon Tomlinson, (2011),"Public access to legislative drafting files", Records Management Journal, Vol.21 Iss 1 pp. 28 - 35Permanent link to this document:http://dx.doi.org/10.1108/09565691111125080

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Public access to legislativedrafting les

Shannon Tomlinson Parliamentary Counsel Ofce, Whitby, New Zealand

AbstractPurpose – The purpose of this paper is to explore the implications of setting access restrictions tolegislative drafting records – specically in New Zealand.Design/methodology/approach – Various international archival institutions and other ofceswhich create legislative drafting records were contacted to see what access restrictions were placed onany legislative drafting les that they held. The information provided by these institutions, togetherwith written theoretical information regarding public access and legal professional privilege, was the

basis for the research.Findings – There is no standard approach to allowing public access to legislative drafting recordsacross the institutions researched. The level of accessibility varies, as does the period of restriction. InNew Zealand legislative drafting records are considered to be protected by legal professional privilegeand therefore are restricted unless the privilege is waived.Research limitations/implications – The main form of communication used to contact thevarious institutions was e-mail. A large number of institutions and ofces from which information wasrequested did not reply, and some that did reply did not provide answers specic to legislative draftingrecords. The research is therefore limited to the information that was received.Originality/value – There is very little published information available regarding legislativedrafting records and public access to them. These records are unique due to debate over whether or notthey are, or should be, covered by legal professional privilege. Because of the unique nature of theserecords, there is no common or widely available precedent to follow when applying access restrictions

to them.Keywords Archives management, Archiving, Legislation, Records management, New ZealandPaper type Research paper

1. IntroductionArchives New Zealand (Archives NZ) has recently received the rst ever transfer of legislative drafting records from the Parliamentary Counsel Ofce (PCO). A naldecision regarding public access has just been made, and at present all legislativedrafting les are restricted for 90 years with an option to renew the restriction at thattime. As this is the rst time that Archives NZ has held legislative drafting records, therewas no precedent in New Zealand as to how long their restriction period should be.

The legislative drafting les at Archives NZ have been classied as restrictedbecause of the claim that their contents are covered by legal professional privilege.However, the majority of the pieces of legislation that have corresponding drafting lesat Archives NZ have since been withdrawn or repealed, and the agencies whichinstructed the drafting for some of these pieces of legislation no longer exist. Theearliest legislative drafting le included in the transfer dates back to 1927. Does thelegal professional privilege attached to these les still remain? I believe that it does – but I also believe that it is still possible to make the majority of these les accessible tothe public.

The current issue and full text archive of this journal is available atwww.emeraldinsight.com/0956-5698.htm

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Received 1 November 2009Accepted 8 December 2009

Records Management JournalVol. 21 No. 1, 2011pp. 28-35q Emerald Group Publishing Limited0956-5698DOI 10.1108/09565691111125080


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The majority of legislative drafting les currently held at Archives NZ do not holdany information that would be considered classied in any way other than the issue of attorney client legal professional privilege. For example, sheries area regulations andeducation school stafng orders are both generally created annually and all of theseles at Archives NZ are over ten years old. It is unlikely that the agencies thatinstructed the drafting for many of the legislative drafting les at Archives NZ wouldbe opposed to the public viewing them; however, there is currently no practice in placefor agencies to expressly waive their privilege. Alternatively, some of these les docontain sensitive material that should not be accessed by the public, and instructingagencies would not want to inadvertently waive the privilege for these.

Legislative drafting les can be a very useful tool for researching legislativehistories, and having these records as open as possible to the public promotesaccountability and transparency in the public sector:

In general, a good reason may be said to exist where the public interest in withholding recordsoutweighs the public interest in making records available (Archives New Zealand, 2005).

Placing restrictions on public access to legislative drafting les solely based on the factthat there is no process in place for instructing agencies to waive the privilege does not,in general, seem to outweigh the reason to withhold the les.

Archives NZ requires a time frame to be placed on restricted items and thereforeles may not be classied as restricted indenitely. However, it is possible forrestriction periods to be extended for another specied time frame once the originalrestriction period is nearing its end.

This essay considers how legal professional privilege affects public access tolegislative drafting les, and what access restrictions should be placed on such recordsonce transferred to Archives NZ.

2. Legal professional privilegeLegal professional privilege is the term given to condential communications betweena client and their lawyer, in a professional capacity. These condentialcommunications, whether verbal or written, include seeking information andformulating and providing legal advice.

Legal professional privilege may only be waived by the client, not the lawyer. Thereare two ways in which the privilege may be waived – express waiver or impliedwaiver. Express waiver of legal professional privilege occurs when the client explicitlychooses to waive the privilege. Implied waiver occurs when the privileged informationor content of the legal advice is disclosed, either in part or in its entirety, outside of theclient lawyer relationship.

Legal professional privilege “endures as long as there exists someone on whosebehalf it may validly be claimed” (Eagles et al., 1992, p. 412). If an agency becomesdefunct, the privilege transfers to a successor agency. In the case of governmentdepartments, the privilege could continue indenitely as the crown would be the nalsuccessor. Therefore, it is claimed, legal professional privilege exists on all legislativedrafting les and will continue to exist regardless of the age and location of the les orany changes to the structure of government agencies within New Zealand.

Communications between Parliamentary Counsel (the drafting lawyer) and theinstructing agency (the client) during the drafting of legislation in New Zealand are

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currently considered to be covered by legal professional privilege. The legislativedrafting les not only contain legislative drafts, but also background informationpertaining to the draft legislation and communications with the instructing agency.The below excerpt from the PCO’s Guide to Working with the Parliamentary Counsel Ofce explicitly describes the condentiality of the communications:

The drafter’s relationship with you [the instructing agency] is in many respects analogous tothe lawyer–client relationship. The drafter has a duty of condence. No information aboutthe drafting of particular legislation will be communicated by us to any outside individual ororganisation (including the media and outside solicitors) if it could breach that obligation of condence (Parliamentary Counsel Ofce, 2008).

The Legislation Advisory Committee (LAC) was established by the Minister of Justicein 1986 to advise government agencies on the drafting of legislation and to promoteawareness of legislative guidelines within the public sector. In the LAC guidelines onprocess and content of legislation, it does not explicitly state that the relationshipbetween Parliamentary Counsel and the instructing agency is covered by legal

professional privilege, but it is implied as noted below:Legislative drafters provide a specialist form of legal service. The relationship betweendrafter and instructing department is similar to that between solicitor and client. The draftermust provide advice and drafting services in a professional and impartial manner(Legislative Advisory Committee, 2001).

There are some arguments that drafting documents do not actually contain legaladvice, but that they are simply working papers to formalise the policy developed bythe instructing agency into a uniform and clear piece of legislation. Barnett (2005, p. 16)stated in her thesis titled Whose Privilege Is It Anyway? Legislative Drafting Documentsand Legal Professional Privilege :

Although legal skills may aid the drafter in his or her work, it does not mean that the endresult is legal advice [ . . .] the dominant purpose of creating drafting instructions for the PCOis not to obtain legal advice, but to have the department’s policy formatted into legislation.

Eagles et al.(1992, p. 391) add to this argument by saying:

[. . .] the procedures that by which policy advice eventually becomes enshrined in law bearsvery little resemblance to the ordinary dealings between lawyers and clients [ . . .] Indeed it isfar from clear that discussions as to the future shape of legislation are legal advice at all.

3. Legislative drafting lesA separate legislative drafting le is created for each piece of draft legislation forwhich the PCO has received ofcial drafting instructions. Each le is assigned a uniquele reference and a physical le is assembled and provided to the drafter responsiblefor the legislation. An electronic le is also created and the contents mirror those of thephysical le, minus hand-written notes and annotated documents as these are notcurrently scanned into the electronic system. Legislation that has been withdrawn atany time after the instructions have been received will still have a le that contains alldocumentation up to, and including, its withdrawal. The draft PCO legislative lingguide states that all drafters must le one copy of each major draft version of thelegislation, including those distributed (either internally or externally) for comment,

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review, or authorisation. Drafts containing any signicant and substantive changes intenor, slant, approach, content, or purpose of the document, even if not reviewed byothers, must also be led. Any signed documents, substantive hand written notes,comments on draft legislation, drafting instructions, and informational material thathas a direct causal relationship to, or inuence on, the drafting is also to be included inthe le. However, the le contents vary for the earliest dated les, with some onlycontaining a draft copy of the bill or regulation – the St Peter’s Parish Endowment Fund Act 1927 , for example.

The legislative drafting les that were included in the transfer to Archives NewZealand are all over ten years old. The PCO has some corresponding electronic recordsfor some of these les created after March 1988, but at this time the historic electronicdocuments are not arranged in les. It is a long-term goal of the PCO to le these intoelectronic les matching the paper les and transfer them to Archives NZ.

4. New Zealand access to information legislation

Section 4 of the Public Records Act 2005 specically mentions the ParliamentaryCounsel Ofce as being a public ofce; therefore all les created by the PCO are publicrecords. The Public Records Act 2005 requires all public ofces to “create and maintainfull and accurate records of its affairs” (New Zealand Government, 2005, section 17).The Act does not specify that public records can be restricted on the grounds of legalprofessional privilege, but it does allow for public records to be restricted if “there aregood reasons to restrict public access to the public record, having regard to anyrelevant standard or advice issued by the chief archivist; or another enactment requiresthe public record to be withheld from public access” (New Zealand Government,section 44). All PCO legislative drafting les are scheduled for permanent retention andare to be transferred to Archives NZ no later than 25 years after their creation.

The PCO is excluded from the Ofcial Information Act 1982 ; as noted in the

interpretation of the Act. However, the scope of the Act should be taken intoconsideration, as the purposes (outlined below) are relevant to the issue of public accessto encourage an open and honest government:

The purposes of this Act are, consistently with the principle of the Executive Government’sresponsibility to Parliament:(a) To increase progressively the availability of ofcial information to the people of New

Zealand in order:(i) To enable their more effective participation in the making and administration of laws

and policies; and(ii) To promote the accountability of Ministers of the Crown and ofcials, – and thereby

to enhance respect for the law and to promote the good government of New Zealand:(b) To provide for proper access by each person to ofcial information relating to that person:

(c) To protect ofcial information to the extent consistent with the public interest and thepreservation of personal privacy. (New Zealand Government, 1982, section 4).

It is also important to note that in general the agencies that the PCO are draftinglegislation for are covered by the Ofcial Information Act 1982 , and that the draftingdocuments held by the agencies themselves may be requested by members of the public.

Currently, any member of the public wishing to look at a legislative drafting le atArchives NZ must provide written authorisation from the PCO. Before providingauthorisation, the PCO requires written conrmation from the instructing agency


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allowing the le to be viewed by the requestor. In addition, the PCO must send allrequests to the Crown Law Ofce before approval can be given to the requestor, asstated in the Cabinet Ofce Circular (05) 5, in which it is written:

If a Minister or government department considers that it is necessary to release any legal adviceprovided to the government, approval must rst be obtained from the Attorney-General, via theCrown Law Ofce. (Department of Prime Minister and Cabinet, 2005).

The process involved for the PCO to obtain authorisation for a member of the public toview a legislative drafting le can take over a month. The PCO has so far received onlya few requests from the public to view legislative drafting les held at Archives NZ;however, the transfer was only completed in August 2008 and the number of requestsis likely to increase over time as the public become more aware of their existence atArchives NZ.

In the instance of an organization asking to view legislative drafting les for whichthey were the instructing agency, the PCO would allow access as it does not breachlegal professional privilege. Only one such request has been received for a le held atArchives NZ. For les not yet transferred to Archives NZ, access is provided throughthe Chief Parliamentary Counsel.

5. Access to legislative drafting les in other countriesAs there is not yet a precedent in New Zealand for setting public access restrictions onhistoric legislative drafting les, I contacted a number of archival institutions invarious countries to see if they held any legislative drafting les and if so, whatrestrictions were placed on them. Although I was unable to get a response from manyof the institutions contacted, I did receive information from the National Archives of Australia, a Canadian provincial archive, and a few state archives in the USA. I wasable to locate the required information for another state institution and another

Canadian provincial archive via their web sites. I was also able to discuss the issuewith a member of the Ofce of the Parliamentary Counsel in the UK.

The National Archives of Australia does hold legislative drafting les and they arelikely to continue receiving such records from the Australian Ofce of the ParliamentaryCounsel. All public records in the custody of the National Archives of Australia arecovered by the Archives Act 1983 , and are available for the public to access after 30years unless they contain information that is included in one of 16 exemption categories(Strategic Relations, 2009). Information covered by legal professional privilege is one of the exemptions; however, it is not clear whether or not legislative drafting les areconsidered to be covered by legal professional privilege in Australia.

The Massachusetts Archives hold legislative drafting material in three main seriesof records – legislative bill packets, committee les, and Governor’s legislative les.The content of the les vary, as it is the creating agencies, not the archives, whichdetermine what gets placed on the les. Some les include drafts of legislation, memos,and notes from legislators and their aids; others only contain a copy of the bill. TheMassachusetts Archives would like to receive more comprehensive legislation les,and they are continuing their efforts in this area. There are no restrictions on access toany of the legislation les held by the Massachusetts Archives (Haag, 2009).

The New York State Archives also have three series which contain legislativedrafting les – records of statutory revision commissions, records of state agency

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counsel’s ofces, and records of legislative ofces. Files received from specialcommissions (executive or legislative) that were appointed to codify or revise statutelaws have no restrictions placed on them. Files received from state agency counsel’sofces may be restricted due to attorney work product privilege and attorney-clientprivilege. The attorney-client privilege may be waived by the state agency itself, but inpractice never is. If the privilege is not waived, it endures indenitely. Files containingdraft bills and related documents that are received from agencies that do not indicateany restrictions be placed on them are considered open access and are disclosed to thepublic on request. There are no restrictions on draft bills or related materials receivedfrom legislative ofces; however, very few of these records have been transferred to theNew York State Archives (Folts, 2009).

The state of Colorado considers legislative drafting les to be condential, but insome circumstances arrangements can be made for a member of the public to viewthese les. The Colorado State Archives is the legal custodian of all legislative bill lesthat have been transferred from the Ofce of the Legislative Legal Services, but allrequests to view these les must be made by contacting the Ofce of the LegislativeLegal Services. To nd out if access is possible, the Ofce of the Legislative LegalServices must be contacted:

[. . .] to inquire whether or not the sponsor: waived his or her privilege to maintain thecondentiality of drafting records; requires anyone seeking access to such records to obtainthe sponsor’s permission prior to releasing the records; or has not given permission to releaseany drafting records and does not want to be contacted for permission (Ofce of LegislativeLegal Services Colorado General Assembly, 2008).

The Archives of Manitoba in Canada hold Legislative Counsel proclamation les (theirlegislative drafting les) dating from 1900 to 1979, with further accruals expected.There are no restrictions on these les. The access status is attached to the series of records, not the age, so all proclamation les at the Archives from the LegislativeCounsel in Manitoba will be openly accessible (Talbot, 2009).

The Archives of Ontario hold multiple series of legislative drafting records receivedfrom the Ofce of the Legislative Counsel; these include Legislative Counsel draftingand advice les on government legislation, Legislative Counsel proposed private billsles, and Legislative Counsel drafting and advice les on private bills. All les 100years or older are open access, and access to les which are less than 100 years oldmust be requested by writing to the Information and Privacy Unit of the Archives of Ontario, as per the Freedom of Information and Protection of Privacy Act .

All bill les in the UK are kept on site at the Ofce of the Parliamentary Counsel – theLord Chancellor has given the ofce a special dispensation for this and they must re-applyevery ten years. As the Ofce of the Parliamentary Counsel is covered by the Freedom of Information Act 2000 , all bill les are available for the public to see once they are 30 yearsold. However, all les are checked prior to being released for viewing to ensure that they donot contain restricted information that has not yet been released. Any member of the publicviewing the les must remain in the designated viewing area and are asked to sign a formto say they adhere to the requirements of the ofce for viewing and further use of thematerial. If a viewer was looking at the les with the intention of publishing something, theOfce of the Parliamentary Counsel asks to see a copy of it rst (Fraser, 2009).

Australia, Canada, and the UK all have similar access to information legislation asNew Zealand, and the law drafting ofces in these countries are covered by the


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legislation. These countries also have Westminster-style governments that are similarto New Zealand. The above examples may be considered by the PCO when makingaccess decisions regarding New Zealand’s legislative drafting les.

6. How to make legislative drafting les accessible to the publicLegislative drafting records in New Zealand are considered to be covered by legalprofessional privilege; therefore this privilege must be waived before any public accesscan be granted. To encourage an open and honest government, some sort of systemmust be set up for the instructing agencies (or successor agencies) to waive legalprofessional privilege for les where appropriate. In the past ten years, approximately430 to 690 legislative drafting les have been created per year. Due to the large numberof les created, a standard process that automatically occurs after a set number of years (between ten and 25) would be ideal.

A letter requesting agencies waive legal professional privilege on all legislativedrafting les over a certain age that do not contain sensitive or restricted information

could be sent out to all instructing and successor agencies. When conrmation, orrefusal, of waiver is received the access status for the corresponding les would beupdated. Some agencies may refuse to waive the privilege, and others may simply notreply, but it would allow access to be opened up for at least some les.

Another option would be to send a letter to all instructing and successor agenciesstating that waiver will be assumed unless the agency contacts the PCO to state theydo not waive the privilege. This would open up access to more les; however thewaiver may not be considered express enough.

Looking forward, it may be possible to initiate a new process of informing theinstructing agencies that waiver of legal professional privilege will occur automaticallyafter the le has been closed for a certain number of years (i.e. 25 years) unless theagency informs the PCO otherwise.

Any process set in place for instructing and successor agencies to waive legalprofessional privilege on legislative drafting les will require consultation with theinstructing agencies themselves, the Attorney-General (to whom the PCO reports),Crown Law, and within the PCO itself.

7. ConclusionLegal professional privilege affects public access to legislative drafting les because inNew Zealand these les are claimed to be covered by the privilege and it is very clearthat legal professional privilege can only be waived by the client and not the lawyer.Therefore, legislative drafting les must remain restricted until such time that theprivilege is waived by the instructing agency, a successor agency, or the Crown in lieuof a direct successor agency.

Once transferred to Archives NZ, these les require access to be restricted from thepublic. Since legal professional privilege may last indenitely, it is not possible for thePCO to put a denitive end date on the restrictions. Archives NZ requires a denitiverestriction period to be attached to each record, so the longest possible restriction hasbeen placed on these les. If the legal professional privilege has not been waived by theend of the restriction period, it is currently assumed that the restriction will be extendedfurther. The PCO does not currently have plans to request instructing agencies to waivetheir privilege, and it is unlikely that this would happen in the immediate future.

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Placing and extending restrictions on legislative drafting les solely on the basis thatthere is no process in place for instructing agencies to waive legal professional privilegedoes not, in general, seem to outweigh the reason to withhold public access to the les.To promote accountability and transparency in the public sector, and to provide a usefultool for any member of the public researching legislative histories, legislative draftingles should be as open as possible to the public. Therefore it is my opinion that theParliamentary Counsel Ofce should work together with drafters, government agenciesinstructing the drafting of legislation, the Attorney-General, and Crown Law to set inplace processes for the instructing agencies to waive legal professional privilege onlegislative drafting records where appropriate, and thus to ensure open access.

ReferencesArchives New Zealand (2005), Making Access Decisions under the Public Records Act , Continuum:

Create and Maintain, A6, Archives New Zealand, Wellington.Barnett, A. (2005), Whose Privilege Is It Anyway? Legislative Drafting Documents and Legal

Professional Privilege , Victoria University of Wellington, Wellington.Department of Prime Minister and Cabinet (2005), “Legal advice and legal professional

privilege”, available at: www.dpmc.govt.nz/cabinet/circulars/co05/5.html (accessed5 February 2009).

Eagles, I., Taggart, M. and Grant, L. (1992), Freedom of Information in New Zealand , OxfordUniversity Press, Auckland.

Folts, J. (2009), Head Reference Services, New York State Archives, personal communication,27 February.

Fraser, L. (2009), Ofce of the Parliamentary Counsel, personal communication, 5 March.Haag, A. (2009), Reference Archivist, Massachusetts Archives, personal communication,

12 March.Legislative Advisory Committee (2009), Legislative Advisory Committee Guidelines: Guidelines on

Process and Content of Legislation , Legislative Advisory Committee, Wellington.New Zealand Government (2005), Public Records Act 2005 , New Zealand Government,

Wellington.New Zealand Government (1982), Ofcial Information Act 1982 , New Zealand Government,

Wellington.Ofce of Legislative Legal Services Colorado General Assembly (2008), “Researching legislative

history”, available at: www.state.co.us/gov_dir/leg_dir/olls/PDF/LEGISLATIVE%20HISTORY.pdf (accessed 30 October 2008).

Parliamentary Counsel Ofce (2008), “Guide to working with the Parliamentary Counsel Ofce”,available at: www.pco.parliament.govt.nz/clientle/guide/guide.shtml (accessed 25 March2009).

Strategic Relations (2009), National Archives of Australia, personal communication, 5 March.

Talbot, I. (2009), Research Assistant, Archives of Manitoba, personal communication, 29 April.

Corresponding authorShannon Tomlinson can be contacted at: [email protected]


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