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Monday, January 18, 2010

Retention and destruction of drafts might need a closer look

While it wasn't a key point in the case, Deputy President Levy in Mullen v Department of Broadband, Communications and the Digital Economy [2010] AATA 7 refers [37] to drafts of documents requested in a Freedom of Information application and to the agency's claim that departmental policy does not require "such documents to be kept and, in fact, requir(es) them to be destroyed." Deputy President Levy agreed [43] the drafts could not be located after a reasonable search, and that was the end of the matter.

So what's the story on retention of drafts?

It turns out that keeping draft documents is largely a matter for each Federal  Government agency. The FAQ from the National Archives Authority  (Destroying records) states:
Agencies need to account for records that have been destroyed or deleted, including both records disposed of under a records authority and records disposed of under normal administrative practice (NAP). Some agencies keep all drafts; others allow deletion of drafts when a final version is stored. Your agency should document decisions on keeping or destroying drafts in a policy or guidelines.

More detailed guidance states drafts not intended for further use or reference can be destroyed in accordance with Normal Administrative Practice, but it is not as open slather as the above might indicate, being limited to:
  • drafts in either paper or electronic form of reports, correspondence, addresses, speeches, planning documents etc. that have minor edits for grammar, spelling etc.,
  • do not contain significant or substantial changes or annotations, or
  • have been assessed as not required to document business activities
As to what goes in the Department of Broadband etc, the Records Management Manual might help but it isn't posted on the Department's website. And as to what goes across the Federal government sector more generally, has the NAA or anyone else looked?  Is the headline guidance in the FAQ  being interpreted in some quarters as justification for destroying all drafts?

Another issue of interest in the decision was Deputy President Levy's rejection of the Department's arguments [28-33] that a memorandum to the minister was exempt as a deliberative process document, based on public interest considerations, as follows. And that government agencies continue to run these kind of arguments:

  • Document 44 contains an opinion which may not have been the final opinion of the Department;
  • The integrity of the decision making process should be protected by separating the final decision from intermediary ones; and
  • It would be contrary to the public interest if departmental officers in the future felt reluctant to properly record issues which are sensitive.

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