Records Management Journal

Public access to legislative drafting files

Shannon Tomlinson

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Article information:
To cite this document:
Shannon Tomlinson, (2011),"Public access to legislative drafting files", Records Management Journal, Vol.
21 Iss 1 pp. 28 - 35
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RMJ
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Public access to legislative

drafting files
Shannon Tomlinson
Parliamentary Counsel Office, Whitby, New Zealand

28
Received 1 November 2009
Accepted 8 December 2009

Abstract

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Purpose The purpose of this paper is to explore the implications of setting access restrictions to
legislative drafting records specifically in New Zealand.
Design/methodology/approach Various international archival institutions and other offices
which create legislative drafting records were contacted to see what access restrictions were placed on
any legislative drafting files that they held. The information provided by these institutions, together
with 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 records
across the institutions researched. The level of accessibility varies, as does the period of restriction. In
New Zealand legislative drafting records are considered to be protected by legal professional privilege
and therefore are restricted unless the privilege is waived.
Research limitations/implications The main form of communication used to contact the
various institutions was e-mail. A large number of institutions and offices from which information was
requested did not reply, and some that did reply did not provide answers specific to legislative drafting
records. The research is therefore limited to the information that was received.
Originality/value There is very little published information available regarding legislative
drafting records and public access to them. These records are unique due to debate over whether or not
they are, or should be, covered by legal professional privilege. Because of the unique nature of these
records, there is no common or widely available precedent to follow when applying access restrictions
to them.
Keywords Archives management, Archiving, Legislation, Records management, New Zealand
Paper type Research paper

Records Management Journal

Vol. 21 No. 1, 2011
pp. 28-35
q Emerald Group Publishing Limited
0956-5698
DOI 10.1108/09565691111125080

1. Introduction
Archives New Zealand (Archives NZ) has recently received the first ever transfer of
legislative drafting records from the Parliamentary Counsel Office (PCO). A final
decision regarding public access has just been made, and at present all legislative
drafting files are restricted for 90 years with an option to renew the restriction at that
time. As this is the first time that Archives NZ has held legislative drafting records, there
was no precedent in New Zealand as to how long their restriction period should be.
The legislative drafting files at Archives NZ have been classified as restricted
because of the claim that their contents are covered by legal professional privilege.
However, the majority of the pieces of legislation that have corresponding drafting files
at Archives NZ have since been withdrawn or repealed, and the agencies which
instructed the drafting for some of these pieces of legislation no longer exist. The
earliest legislative drafting file included in the transfer dates back to 1927. Does the
legal professional privilege attached to these files still remain? I believe that it does
but I also believe that it is still possible to make the majority of these files accessible to
the public.

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The majority of legislative drafting files currently held at Archives NZ do not hold
any information that would be considered classified in any way other than the issue of
attorney client legal professional privilege. For example, fisheries area regulations and
education school staffing orders are both generally created annually and all of these
files at Archives NZ are over ten years old. It is unlikely that the agencies that
instructed the drafting for many of the legislative drafting files at Archives NZ would
be opposed to the public viewing them; however, there is currently no practice in place
for agencies to expressly waive their privilege. Alternatively, some of these files do
contain sensitive material that should not be accessed by the public, and instructing
agencies would not want to inadvertently waive the privilege for these.
Legislative drafting files can be a very useful tool for researching legislative
histories, and having these records as open as possible to the public promotes
accountability and transparency in the public sector:
In general, a good reason may be said to exist where the public interest in withholding records
outweighs the public interest in making records available (Archives New Zealand, 2005).

Placing restrictions on public access to legislative drafting files solely based on the fact
that 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 files.
Archives NZ requires a time frame to be placed on restricted items and therefore
files may not be classified as restricted indefinitely. However, it is possible for
restriction periods to be extended for another specified time frame once the original
restriction period is nearing its end.
This essay considers how legal professional privilege affects public access to
legislative drafting files, and what access restrictions should be placed on such records
once transferred to Archives NZ.
2. Legal professional privilege
Legal professional privilege is the term given to confidential communications between
a client and their lawyer, in a professional capacity. These confidential
communications, whether verbal or written, include seeking information and
formulating and providing legal advice.
Legal professional privilege may only be waived by the client, not the lawyer. There
are two ways in which the privilege may be waived express waiver or implied
waiver. Express waiver of legal professional privilege occurs when the client explicitly
chooses to waive the privilege. Implied waiver occurs when the privileged information
or content of the legal advice is disclosed, either in part or in its entirety, outside of the
client lawyer relationship.
Legal professional privilege endures as long as there exists someone on whose
behalf it may validly be claimed (Eagles et al., 1992, p. 412). If an agency becomes
defunct, the privilege transfers to a successor agency. In the case of government
departments, the privilege could continue indefinitely as the crown would be the final
successor. Therefore, it is claimed, legal professional privilege exists on all legislative
drafting files and will continue to exist regardless of the age and location of the files or
any changes to the structure of government agencies within New Zealand.
Communications between Parliamentary Counsel (the drafting lawyer) and the
instructing 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 legislative

drafting files not only contain legislative drafts, but also background information
pertaining to the draft legislation and communications with the instructing agency.
The below excerpt from the PCOs Guide to Working with the Parliamentary Counsel
Office explicitly describes the confidentiality of the communications:
The drafters relationship with you [the instructing agency] is in many respects analogous to
the lawyer client relationship. The drafter has a duty of confidence. No information about
the drafting of particular legislation will be communicated by us to any outside individual or
organisation (including the media and outside solicitors) if it could breach that obligation of
confidence (Parliamentary Counsel Office, 2008).

The Legislation Advisory Committee (LAC) was established by the Minister of Justice
in 1986 to advise government agencies on the drafting of legislation and to promote
awareness of legislative guidelines within the public sector. In the LAC guidelines on
process and content of legislation, it does not explicitly state that the relationship
between 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 between
drafter and instructing department is similar to that between solicitor and client. The drafter
must 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 legal
advice, but that they are simply working papers to formalise the policy developed by
the 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 Documents
and Legal Professional Privilege:
Although legal skills may aid the drafter in his or her work, it does not mean that the end
result is legal advice [. . .] the dominant purpose of creating drafting instructions for the PCO
is not to obtain legal advice, but to have the departments 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 bears
very little resemblance to the ordinary dealings between lawyers and clients [. . .] Indeed it is
far from clear that discussions as to the future shape of legislation are legal advice at all.

3. Legislative drafting files

A separate legislative drafting file is created for each piece of draft legislation for
which the PCO has received official drafting instructions. Each file is assigned a unique
file reference and a physical file is assembled and provided to the drafter responsible
for the legislation. An electronic file is also created and the contents mirror those of the
physical file, minus hand-written notes and annotated documents as these are not
currently scanned into the electronic system. Legislation that has been withdrawn at
any time after the instructions have been received will still have a file that contains all
documentation up to, and including, its withdrawal. The draft PCO legislative filing
guide states that all drafters must file one copy of each major draft version of the
legislation, including those distributed (either internally or externally) for comment,

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review, or authorisation. Drafts containing any significant and substantive changes in

tenor, slant, approach, content, or purpose of the document, even if not reviewed by
others, must also be filed. Any signed documents, substantive hand written notes,
comments on draft legislation, drafting instructions, and informational material that
has a direct causal relationship to, or influence on, the drafting is also to be included in
the file. However, the file contents vary for the earliest dated files, with some only
containing a draft copy of the bill or regulation the St Peters Parish Endowment
Fund Act 1927, for example.
The legislative drafting files that were included in the transfer to Archives New
Zealand are all over ten years old. The PCO has some corresponding electronic records
for some of these files created after March 1988, but at this time the historic electronic
documents are not arranged in files. It is a long-term goal of the PCO to file these into
electronic files matching the paper files and transfer them to Archives NZ.
4. New Zealand access to information legislation
Section 4 of the Public Records Act 2005 specifically mentions the Parliamentary
Counsel Office as being a public office; therefore all files created by the PCO are public
records. The Public Records Act 2005 requires all public offices to create and maintain
full 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 legal
professional privilege, but it does allow for public records to be restricted if there are
good reasons to restrict public access to the public record, having regard to any
relevant standard or advice issued by the chief archivist; or another enactment requires
the public record to be withheld from public access (New Zealand Government,
section 44). All PCO legislative drafting files are scheduled for permanent retention and
are to be transferred to Archives NZ no later than 25 years after their creation.
The PCO is excluded from the Official Information Act 1982; as noted in the
interpretation of the Act. However, the scope of the Act should be taken into
consideration, as the purposes (outlined below) are relevant to the issue of public access
to encourage an open and honest government:
The purposes of this Act are, consistently with the principle of the Executive Governments
responsibility to Parliament:
(a) To increase progressively the availability of official 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 officials, 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 official information relating to that person:
(c) To protect official information to the extent consistent with the public interest and the
preservation of personal privacy. (New Zealand Government, 1982, section 4).

It is also important to note that in general the agencies that the PCO are drafting
legislation for are covered by the Official Information Act 1982, and that the drafting
documents 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 file at
Archives NZ must provide written authorisation from the PCO. Before providing
authorisation, the PCO requires written confirmation from the instructing agency

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allowing the file to be viewed by the requestor. In addition, the PCO must send all
requests to the Crown Law Office before approval can be given to the requestor, as
stated in the Cabinet Office Circular (05) 5, in which it is written:
If a Minister or government department considers that it is necessary to release any legal advice
provided to the government, approval must first be obtained from the Attorney-General, via the
Crown Law Office. (Department of Prime Minister and Cabinet, 2005).

The process involved for the PCO to obtain authorisation for a member of the public to
view a legislative drafting file can take over a month. The PCO has so far received only
a few requests from the public to view legislative drafting files held at Archives NZ;
however, the transfer was only completed in August 2008 and the number of requests
is likely to increase over time as the public become more aware of their existence at
Archives NZ.
In the instance of an organization asking to view legislative drafting files for which
they were the instructing agency, the PCO would allow access as it does not breach
legal professional privilege. Only one such request has been received for a file held at
Archives NZ. For files not yet transferred to Archives NZ, access is provided through
the Chief Parliamentary Counsel.
5. Access to legislative drafting files in other countries
As there is not yet a precedent in New Zealand for setting public access restrictions on
historic legislative drafting files, I contacted a number of archival institutions in
various countries to see if they held any legislative drafting files and if so, what
restrictions were placed on them. Although I was unable to get a response from many
of 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 was
able 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 issue
with a member of the Office of the Parliamentary Counsel in the UK.
The National Archives of Australia does hold legislative drafting files and they are
likely to continue receiving such records from the Australian Office of the Parliamentary
Counsel. All public records in the custody of the National Archives of Australia are
covered by the Archives Act 1983, and are available for the public to access after 30
years 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 files are
considered to be covered by legal professional privilege in Australia.
The Massachusetts Archives hold legislative drafting material in three main series
of records legislative bill packets, committee files, and Governors legislative files.
The content of the files vary, as it is the creating agencies, not the archives, which
determine what gets placed on the files. Some files include drafts of legislation, memos,
and notes from legislators and their aids; others only contain a copy of the bill. The
Massachusetts Archives would like to receive more comprehensive legislation files,
and they are continuing their efforts in this area. There are no restrictions on access to
any of the legislation files held by the Massachusetts Archives (Haag, 2009).
The New York State Archives also have three series which contain legislative
drafting files records of statutory revision commissions, records of state agency

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counsels offices, and records of legislative offices. Files received from special
commissions (executive or legislative) that were appointed to codify or revise statute
laws have no restrictions placed on them. Files received from state agency counsels
offices may be restricted due to attorney work product privilege and attorney-client
privilege. The attorney-client privilege may be waived by the state agency itself, but in
practice never is. If the privilege is not waived, it endures indefinitely. Files containing
draft bills and related documents that are received from agencies that do not indicate
any restrictions be placed on them are considered open access and are disclosed to the
public on request. There are no restrictions on draft bills or related materials received
from legislative offices; however, very few of these records have been transferred to the
New York State Archives (Folts, 2009).
The state of Colorado considers legislative drafting files to be confidential, but in
some circumstances arrangements can be made for a member of the public to view
these files. The Colorado State Archives is the legal custodian of all legislative bill files
that have been transferred from the Office of the Legislative Legal Services, but all
requests to view these files must be made by contacting the Office of the Legislative
Legal Services. To find out if access is possible, the Office of the Legislative Legal
Services must be contacted:
[. . .] to inquire whether or not the sponsor: waived his or her privilege to maintain the
confidentiality of drafting records; requires anyone seeking access to such records to obtain
the sponsors permission prior to releasing the records; or has not given permission to release
any drafting records and does not want to be contacted for permission (Office of Legislative
Legal Services Colorado General Assembly, 2008).

The Archives of Manitoba in Canada hold Legislative Counsel proclamation files (their
legislative drafting files) dating from 1900 to 1979, with further accruals expected.
There are no restrictions on these files. The access status is attached to the series of
records, not the age, so all proclamation files at the Archives from the Legislative
Counsel in Manitoba will be openly accessible (Talbot, 2009).
The Archives of Ontario hold multiple series of legislative drafting records received
from the Office of the Legislative Counsel; these include Legislative Counsel drafting
and advice files on government legislation, Legislative Counsel proposed private bills
files, and Legislative Counsel drafting and advice files on private bills. All files 100
years or older are open access, and access to files which are less than 100 years old
must 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 files in the UK are kept on site at the Office of the Parliamentary Counsel the
Lord Chancellor has given the office a special dispensation for this and they must re-apply
every ten years. As the Office of the Parliamentary Counsel is covered by the Freedom of
Information Act 2000, all bill files are available for the public to see once they are 30 years
old. However, all files are checked prior to being released for viewing to ensure that they do
not contain restricted information that has not yet been released. Any member of the public
viewing the files must remain in the designated viewing area and are asked to sign a form
to say they adhere to the requirements of the office for viewing and further use of the
material. If a viewer was looking at the files with the intention of publishing something, the
Office of the Parliamentary Counsel asks to see a copy of it first (Fraser, 2009).
Australia, Canada, and the UK all have similar access to information legislation as
New Zealand, and the law drafting offices in these countries are covered by the

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legislation. These countries also have Westminster-style governments that are similar
to New Zealand. The above examples may be considered by the PCO when making
access decisions regarding New Zealands legislative drafting files.
6. How to make legislative drafting files accessible to the public
Legislative drafting records in New Zealand are considered to be covered by legal
professional privilege; therefore this privilege must be waived before any public access
can be granted. To encourage an open and honest government, some sort of system
must be set up for the instructing agencies (or successor agencies) to waive legal
professional privilege for files where appropriate. In the past ten years, approximately
430 to 690 legislative drafting files have been created per year. Due to the large number
of files 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 legislative
drafting files over a certain age that do not contain sensitive or restricted information
could be sent out to all instructing and successor agencies. When confirmation, or
refusal, of waiver is received the access status for the corresponding files would be
updated. Some agencies may refuse to waive the privilege, and others may simply not
reply, but it would allow access to be opened up for at least some files.
Another option would be to send a letter to all instructing and successor agencies
stating that waiver will be assumed unless the agency contacts the PCO to state they
do not waive the privilege. This would open up access to more files; however the
waiver may not be considered express enough.
Looking forward, it may be possible to initiate a new process of informing the
instructing agencies that waiver of legal professional privilege will occur automatically
after the file has been closed for a certain number of years (i.e. 25 years) unless the
agency informs the PCO otherwise.
Any process set in place for instructing and successor agencies to waive legal
professional privilege on legislative drafting files will require consultation with the
instructing agencies themselves, the Attorney-General (to whom the PCO reports),
Crown Law, and within the PCO itself.
7. Conclusion
Legal professional privilege affects public access to legislative drafting files because in
New Zealand these files are claimed to be covered by the privilege and it is very clear
that legal professional privilege can only be waived by the client and not the lawyer.
Therefore, legislative drafting files must remain restricted until such time that the
privilege is waived by the instructing agency, a successor agency, or the Crown in lieu
of a direct successor agency.
Once transferred to Archives NZ, these files require access to be restricted from the
public. Since legal professional privilege may last indefinitely, it is not possible for the
PCO to put a definitive end date on the restrictions. Archives NZ requires a definitive
restriction period to be attached to each record, so the longest possible restriction has
been placed on these files. If the legal professional privilege has not been waived by the
end of the restriction period, it is currently assumed that the restriction will be extended
further. The PCO does not currently have plans to request instructing agencies to waive
their privilege, and it is unlikely that this would happen in the immediate future.

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Placing and extending restrictions on legislative drafting files solely on the basis that
there is no process in place for instructing agencies to waive legal professional privilege
does not, in general, seem to outweigh the reason to withhold public access to the files.
To promote accountability and transparency in the public sector, and to provide a useful
tool for any member of the public researching legislative histories, legislative drafting
files should be as open as possible to the public. Therefore it is my opinion that the
Parliamentary Counsel Office should work together with drafters, government agencies
instructing the drafting of legislation, the Attorney-General, and Crown Law to set in
place processes for the instructing agencies to waive legal professional privilege on
legislative drafting records where appropriate, and thus to ensure open access.
References
Archives 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 (accessed
5 February 2009).
Eagles, I., Taggart, M. and Grant, L. (1992), Freedom of Information in New Zealand, Oxford
University Press, Auckland.
Folts, J. (2009), Head Reference Services, New York State Archives, personal communication,
27 February.
Fraser, L. (2009), Office 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), Official Information Act 1982, New Zealand Government,
Wellington.
Office 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 Office (2008), Guide to working with the Parliamentary Counsel Office,
available at: www.pco.parliament.govt.nz/clientfile/guide/guide.shtml (accessed 25 March
2009).
Strategic Relations (2009), National Archives of Australia, personal communication, 5 March.
Talbot, I. (2009), Research Assistant, Archives of Manitoba, personal communication, 29 April.
Corresponding author
Shannon Tomlinson can be contacted at: shannonltomlinson@gmail.com

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