Anne Twomey: National Archives ‘completely dysfunctional’ for serious scholarship

By Stephen Easton

Thursday April 18, 2019

Constitutional law professor Anne Twomey thinks the National Archives is nearly useless for serious academic and historical research, partly because it is “starved of funding” and takes too long to decide whether to open old government records.

She also thinks its decisions reflect a growing “culture of secrecy” in the public sector, including in other English-speaking states — a proposition its director-general assures The Mandarin is completely untrue.

“Quite the reverse; I see myself as an antidote to that kind of disposition that may affect some areas of public officials that would rather not release information,” said Archives head David Fricker. “We’re all about release.”

Fricker stands by the agency’s statistics showing it releases over 96% of records, and points out it gets a huge volume of access requests with finite resourcing. He is adamant the Archives has not consciously become more secretive.

However it is at least theoretically possible that greater risk aversion has crept into the agency’s decisions via advice it seeks from elsewhere in the public sector about the specific information in particular records, and whether it is legally exempt from disclosure.

The Archives welcomes and actively encourages access requests but is struggling to cope with growing demand due to resourcing constraints. There could be light at the end of the funding tunnel, however, in a newly announced functional and efficiency review by former Finance Department secretary David Tune, who reports after the election.

Below we present both Anne Twomey’s views and David Fricker’s response.

Slower and more secretive: Twomey’s view

“The problem … is that the National Archives of Australia is now so completely dysfunctional that it only operates to serve those who are tracing their family tree and finding out what great uncle Ted did in the war,” Twomey said this week, in a panel discussion at Parliament House about potential options for a new federal corruption watchdog.

“It has ceased to fulfil the function of providing access to scholars, historians and others who want to find out about what governments have done in the past.”

Archival government records are vital primary sources for scholars like Twomey, one of the nation’s top experts on constitutional issues like eligibility to stand for federal parliament or the dismissal of Gough Whitlam.

She’s not alone in wanting to access them, of course; anyone can look through the catalogue and ask for records that have been archived for 20 years or more, free of charge, and a growing number do.

The professor said access to historical government records was a “really important aspect of transparency” and so she felt her “rant” about the Archives was fitting for the event about improving federal integrity and accountability.

“Now I’m not talking about documents relating to current governmental matters; I accept that there should be levels of secrecy in relation to such things,” she said.

“But you do still need access. For reasons of history and … allowing the Australian people to understand how their system of government works, you need to be able to have access to government documents from the past that show what has happened.”

The Archives has a statutory 90-day timeline to make its decisions – after that a person can appeal just as if access was refused – but Twomey claims she’s never seen it met.

“I have never yet received anything that has been done in 90 days.”

In one case, the Archives opened a record for her in March this year, more than seven years after she requested it during research for her 2018 book The Veiled Sceptre.

“Now you will be unsurprised to know that the book was written, published, reviewed … and now they finally produce the files, which are completely and utterly useless and irrelevant because it is far too late,” Twomey said.

“This is just tragic because now I have to tell my students doing honours theses and … higher research degrees, PhDs and the like, that you cannot rely on getting access to documents from the National Archives in time to produce the thesis that you need to produce.

“That is a tragedy for scholarship in this country. It’s a tragedy for history. It’s a tragedy in relation to transparency, in relation to government.”

In Twomey’s view, these twin problems have emerged slowly over the past 10-15 years. She reeled off a list of examples where she felt records had been blocked unreasonably, and she’s not exactly unqualified to understand the legislated rules about what comes out and what stays hidden.

The highly respected scholar and long-time customer of the Archives said records seemed to be partially released more often than in the past – which usually meant the record keepers had “gutted everything of any interest in the files and just left you the administrative correspondence” – or totally blocked.

“And the reasons for rejecting access tend to be on the more ludicrous side,” she added, reeling off a list of files from the 1950s, 60s and 70s she was not allowed to read.

Referring to the recent run of dual-nationality politicians having their eligibility for federal parliament questioned, the professor has found government documents about “dozens and dozens” of similar cases going back as far as 1953, but she isn’t allowed to read them.

“The reason given was that these files had legal advices on them, but if you look at the statute, [it] says the exemption for legal advices is not absolute, it states that access must be given to the documents unless disclosure is against the public interest,” Twomey said.

“So why is it against the public interest to disclose things in these files?

“Well the person from the National Archives … making the internal review, because I did appeal this, decided it was against the public interest to disclose this material because its release could ‘prejudice the legal position of the Commonwealth in the event of future legal proceedings’ — seriously.

“As if the Commonwealth solicitor-general is actually bound by what someone said in 1963 in relation to a section in the constitution that has since been reinterpreted three times by the High Court.

“It’s completely, utterly ludicrous and nonsense, which I did point out in my appeal.”

Twomey was most annoyed by one particular case in which she asked for a file that was catalogued as being from 1993 – well over 20 years old — but was told it contained no documents old enough to open. She said it “mysteriously disappeared” from the catalogue shortly after that and had “ceased to exist” entirely in the record system.

Based on the director-general’s comments, it’s possible this was a phantom record created through an administrative error in a government department many years ago, like a box left empty, or maybe filled with newer documents years after its creation. But the way the process occurred and possibly the lack of a good explanation only added to the impression of a cover-up.

“It seems to me what’s happening is there is a culture of secrecy where the National Archives takes the view that its role is to stop people getting information about government and how government behaves,” said Twomey.

“And from my point of view, I think that is an extremely serious problem when it comes to transparency in government.”

In Twomey’s view, federal archivists “clearly do not have enough funding to actually fulfil their function, and that is a serious, serious problem.”

“But it’s a bad combination of lack of funding plus extreme paranoia in relation to secrecy and not letting things out, and I think both of those are relatively recent developments, over the last 10-15 years,” she said.

Struggling but standing by the statistics: Fricker’s view

The director-general said he understood the professor’s frustration and accepted some decisions took far too long. But he does not agree there is a culture of secrecy.

“We are a pro-disclosure organisation,” he told The Mandarin. While the Archives Act charges him with maintaining confidentiality over certain kinds of information, he said the organisation was focused on the public value of the material it released, not what it held back. “That’s our philosophy right through the work that we do.”

“What is a trend, though, is just the volume of requests that we have to access records, in … an environment where our staff numbers are declining and our budgets are reducing,” he added.

“And I think that’s what’s creating the backlogs and unfortunately giving long lead times for these more complex cases.”

“Examination progress for applications submitted each financial year, as at 31 December 2018” from the National Archives of Australia.

Fricker said scholars like Twomey were great supporters of the agency and its purpose, as they did the hard work of sifting through the material, analysing, explaining and enlivening it in works of history and scholarship.

They also make a lot of requests – there are between 40,000 and 50,000 requests to deal with each year and in recent times about half have come from just four individuals.

Fricker said these high-volume applicants were typically “reputable historians, and people with absolutely meritorious requests” and they had every right to request as much as they wanted, but noted their huge wish-lists illustrated the open, unrestricted nature of the system.

As of February this year, the Archives was assessing 24,570 requests from 1489 people, a spokesperson said. Of those, about 12,900 or 52% came from the top four Archives enthusiasts. A chart of the figures from December shows a similar breakdown.

“Breakdown of number of applications – by high volume applicant group – as at 31 December 2018” from the National Archives of Australia.

“The backlogs, really, are a product of demand exceeding the capacity of our resources to meet that demand,” the director-general said.

Fricker says the statistics support his claim that the Archives is “not trending towards refusing access” in general, but notes that “not all sensitivities perish in 20 years” and there are genuine reasons for the exemptions in the law.

“We’re required by law to give due consideration to those and exempt them, and that’s not done on a whim, in my office. It’s not me being particularly secretive, it’s faithfully applying those very specific exemptions in the law.”

He does accept there are significant backlogs and finds bittersweet irony in the growing demand. The chief record-keeper is delighted to see amateur geneology becoming a popular hobby and an increasing number of people asking to look at old documents – he says this generates a “fair portion” of requests – but admits he is struggling to keep up.

“The demand for records … I think is great, because these are public records and the function of the Archives is to make records available for the public, so I applaud the growth in public demand, but it is very difficult for us to keep pace with that demand.”

The agency makes this budget issue plain to whichever party forms the next government in the first lines of a statement on the upcoming efficiency review:

“For some years now, the National Archives has been facing many challenges as a result of the tightening fiscal environment and growing public demand for our services. Budget and staffing reductions are affecting our capacity to perform our fundamental role of securing, preserving, maintaining and making accessible the authentic and essential records of the decisions and actions of government, while providing high standards of service delivery that all Australians should expect from their National Archives.”

The agency has taken administrative steps to try to get through the backlog including a special taskforce established in 2013, funding for which ceased at the end of 2015.

It has also been asking for legislative changes to help cope with demand. Its statistic page details some that come into effect next Thursday, which involve placing new limits on applicants and lowering the expectations of the Archives. It has also been trying to use technological advances to do more with less, but it’s clear that funding and staffing are pretty close to their limits.

According to Fricker, “there’s no growing bias here to become more secretive” and this is demonstrated by the number of old ASIO records that are released.

He also points out that while he has authority over the records, the agency does not make decisions in a vacuum.

“To properly inform ourselves about sensitivities I do consult, because I’m not the expert on every legal issue or international relations issue or whatever, so we do sort of reach back across the public service to consult and to make sure that I’ve fully understood the potential harm that may come from releasing the records,” Fricker explained.

“That consultation also adds time to the processing pipeline… when something’s been hanging around for seven years, I confess it’s probably because we’ve referred it somewhere outside the Archives to get some advice on it and, because of our staffing restrictions or whatever, we lose sight of the case.

“So I don’t want to deny any of that happened; I really am quite determined to address those processing issues that we do have, but there is absolutely no underlying intent to become more secretive or withhold more information.”

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