Recordkeeping, Document Destruction, and the Law
(Heiner,
Enron, and McCabe)
Chris
Hurley28
This is a revised version of an article that originally
appeared in Archives & Manuscripts, the journal of the Australian Society of
Archivists, in the November 2002 (Vol. 30, No. 2) issue, pp. 6 -
25. Chris Hurley was awarded the
Michael Standish Prize by the Archives & Records Association of New Zealand
(ARANZ) for this paper.
Précis: Documents are routinely destroyed for legitimate purposes
as part of routine housekeeping. In
several notable cases, it has been found that the step from document
destruction to obstruction of justice may be all too brief. This article
explains the distinction between archival law on disposal and the requirements
of the law in relation to document retention and destruction in cases where
legal action/ investigations might be pending, and explores the implications
for the role of the recordkeeper of the findings of the recent cases. It
concludes by addressing the question “What should the recordkeeper do?” in
light of these findings. |
“Surprisingly, wrongdoing in high places sometimes generates
a considerable amount of documentation …. One of the ways of exposing corruption
…. is to obtain such documents.
Unfortunately many records are short-lived …”[1]
In June, 2002, an American court found the accounting firm,
Arthur Andersen, guilty on charges of unlawfully destroying documents relating
to the firm’s relationship with the collapsed energy giant, Enron. Charges of document destruction by Enron had
yet to be heard. On television, an
Andersen training video was played many times.
In it, Andersen employees were instructed on what they were told was the
“law” regarding shredding. Anything,
they were advised, could be lawfully destroyed up to the point when proceedings
are “filed”.
More than a decade earlier, the newly elected Queensland
Government of Wayne Goss was anxious to shred all of the records accumulated by
retired magistrate, Noel Heiner, who had been appointed by the outgoing Cooper
Government to investigate alleged inmate abuse at the John Oxley Youth Centre
(JOYC). We now know that Noel Heiner
was beginning to uncover testimony concerning serious abuses and inappropriate
responses by staff of the JOYC. Several
years later, the Forde Royal Commission revealed such abuses to have been
endemic in the Queensland system, but this was not publicly known when the Goss
Government closed the Heiner Inquiry down.
One case, which is only now coming to light, involved the pack rape of
an Aboriginal girl. The Heiner Inquiry
was set up before the election, following allegations by then Labor candidate,
Ann Warner. Now Minister responsible
for John Oxley, in early 1990 Warner was a member of the Cabinet trying to
destroy the evidence gathered by Heiner when investigating her own allegations.
The problem for Warner, Goss and
their colleagues was that the manager of JOYC, Peter Coyne, was taking
legal action for defamation and lack of process. His lawyers said he was being denied natural justice (Coyne was
not told what allegations were being made or who his accusers were). Coyne’s lawyers had written requesting
access to the records and saying they would be taking action. Knowing this, the Goss Cabinet ordered the
destruction of the records. They acted
on the advice of the Crown Solicitor that they could lawfully do so because
Coyne had yet to formally institute proceedings in a court. On the later evidence of a spokesman for the
Queensland Criminal Justice Commission (QCJC) which looked the matter, the Goss
Cabinet was motivated, at least in part, by a desire to deny Coyne and his
lawyers access to the documents they wanted to make their case.
On 22 March, 2002, Judge Geoffrey Eames ruled in the
Victorian State Supreme Court in favour of a lung cancer victim (Rolah Ann
McCabe) against British American Tobacco (BAT) on the grounds that the
plaintiff had been denied a fair trial as a result of “document retention”
practices undertaken by BAT in consultation with their legal firm, Clayton
Utz. These practices involved shredding
material the plaintiff needed to make her case. In the Weekend Australian
for 13 April, 2002, a spokesman for BAT, Scott Hailstone, confirmed that
documents had been destroyed, but said this was in line with the company policy
of document retention. It had occurred before litigation was filed by Mrs
McCabe: "We didn't know anything was going to be filed against us so we've
acted perfectly within the law," he said.
The Judge’s response was that the plaintiff could not obtain justice
because the defendant had, through their disposal procedures, deprived her of
the evidence she needed to make her case, that her need for them was reasonably
foreseeable, and that defendant’s action was undertaken not for innocent
housekeeping purposes but with the intention of preventing litigants from
obtaining justice.
Judgements against tobacco in Australian courts were not
unheard of, but they were rare. The
case was unusual because of the directed verdict and because it went against
tobacco. Coming within months of
similar behaviour in the Enron collapse, this made the judgement big news in
the Australian media. Coming more than
a decade after Heiner, the defence in all three was uncannily similar:
documents can be lawfully destroyed right up to the moment proceedings are
formally commenced.
Is this true? The principle
involved is of some significance to recordkeepers. When does it become unlawful to shred documents which might be
relevant to legal or quasi-legal proceedings?
This is different from the issue which arises under archives laws. Under archives laws, there is a general
prohibition on destruction unless approval is given by the archives authority
whereas under laws dealing with obstruction of justice, destruction is
generally allowed unless legal proceedings are “pending”. The three cases in point are not about the
principle that destruction of evidence is unlawful, but rather about when legal
proceedings are pending.
A connection exists, however, between these two
approaches. Specifically, it relates to
the role of the archives authority, when deciding whether or not to approve a
destruction, in ensuring that permission is not given for actions which result
in destruction of documents required in pending legal proceedings.
In the Heiner Case, the Queensland Crown Solicitor (Kenneth
O’Shea) advised the Goss Government that the records could be destroyed because
proceedings were not pending, and would not be pending until Coyne’s solicitors
“filed”. Whether O’Shea’s view was
correct in law was the subject of subsequent debate. In a recent radio interview, Alastair McAdam, Senior Law Lecturer at the Queensland
University of Technology, described this view as one which “if it had been
written … in a first year law assignment … would have resulted in a clear
failing grade”[2]. O’Shea went on to advise that, since
Heiner's records were subject to public archives law, the records could not be
destroyed without the permission of the State Archivist. Lee McGregor. This was sought and promptly given.
The point here is that the two regimes (the law on obstruction
and the law on archives) operate (as indicated above) in a separate, but
inter-related fashion. The State
Archivist’s permission to destroy the Heiner documents would not have relieved
the Queensland Government of accusations of obstruction of justice unless it
was also lawful to destroy them, on the argument provided by O’Shea, that
proceedings were not yet pending. The
Archivist’s permission did not void any prohibition on document destruction in
legal proceedings. The further question
that arose in the Heiner case is whether, that being so, the Archivist should
make decisions without any regard whatsoever for contemporary uses to which
records may be put and consider only their value for historical research. If
the Archivist should make decisions with regard to potential contemporary uses
outside of the archives, more questions arise relating to the implications of
recent interpretations of the law relating to obstruction of justice.
The Queensland Criminal Justice Commission (QCJC) thought that
the Archivist had no role beyond assessing historical value. The Heiner Affair became the subject of
inquiry by successive Select Committees of the Australian Senate, largely
because of the determination of Kevin Lindeberg (a union official who was sacked
for not going along with the shredding). The Queensland Government supplied documents
to the Senate Inquiries, but refused otherwise to take part. The QCJC, which had investigated Heiner Case
and found no wrong-doing on the Government’s part, testified before these
Committees in defence of its own findings.
In doing so, its spokesman, Michael Robert Barnes, made a now infamous assertion :
... we have to look at the
archivist, because Mr Lindeberg is concerned that her actions in authorising
the destruction were inappropriate ... The Archivist's duty is to preserve
public records which may be of historical public interest; her duty is not to
preserve documents which other people may want to access for some personal or
private reason. She has a duty to protect documents that will reflect the
history of the State.
...
In my submission, the fact that people may have been wanting to see these
documents - and there is no doubt the Government knew that Coyne wanted to see
the documents - does not bear on the Archivist's decision about whether these
are documents that the public should have a right to access forevermore ...
That is the nature of the discretion she exercises. The question about whether
people have a right to access these documents is properly to be determined
between the department, the owner of the document and the people who say they
have got that right. That is nothing to do with the Archivist, so I suggest to
you that the fact that was not conveyed to the Archivist is neither here nor there.
That has no bearing on the exercise of her discretion.[3]
At one level, this statement is correct. It is clearly not the role of the archives
authority to enforce the law against obstruction of justice. This is the work of investigators, police,
courts, and other enforcement agencies.
The Archivist’s opinion was not sought on whether the documents could be
destroyed in view of pending legal proceedings. The Government, quite properly, sought the opinion of its law
officer on that issue. In that sense,
it was no business of the archivist to advise Government on its legal
obligations.
The Queensland Government’s obligation to obtain the State
Archivist’s permission before destroying any records and its obligation to
comply with the law preventing obstruction of justice in relation to these
records are different, but not unrelated.
The Goss Government had obtained legal advice that proceedings were not
pending in the Heiner case, so they (apparently) did not inform the State
Archivist of the fact that Coyne’s lawyers had indicated that proceedings were
being contemplated and that Coyne wished to see the records as part of that
process. That was “none of her
business”. The Archivist proceeded, so
far as we know, in ignorance of the true purpose for which the records were
being destroyed. The procedures
established under Queensland archives law were regarded as a thing apart from
the Government’s concern with destroying documents before an intending litigant
could get hold of them.
This separation of disposal practices from
obstruction of justice issues lay at the heart of the BAT and
Andersen judgements. In both these
later cases, courts have ruled (and both rulings may still be appealed) that a
separation of the kind argued by Queensland and Barnes in the Heiner Case
cannot be made.
Interestingly, the retention of documents also bears on the
ability of those enforcing the law to be able to do their job. The 1998/99
Report of the Commonwealth Director of Public Prosecutions illustrates
the significance courts give to documentary evidence :
The defendant in this matter was charged with offences under the Social Security Act of knowingly obtaining a benefit that was not payable. It was alleged that he obtained $17 000 in excess of entitlements over a two year period by working part-time and not declaring his income. Over that period the defendant filed 70 income statement forms. It was alleged that, on each occasion, the form contained a false statement about income earned.
The prosecution was not able to produce the original forms. They had been destroyed under normal document destruction arrangements. The case relied on secondary evidence to show that benefits were paid to the defendant over the relevant period and that they would not have been paid if the forms had told the truth. When the matter came on for hearing the defence applied for a stay of the prosecution on the basis that it would be an abuse of process to proceed in the absence of the forms. The magistrate upheld the application.
The DPP appealed. The DPP
argued that, in all the circumstances of this case, the secondary evidence of
what was on the forms was reliable and that there was nothing unjust or
oppressive with prosecuting on the basis of that evidence. The SA Supreme Court
dismissed the appeal. The court found that Bourke was entitled to run a defence
to the effect that he had filled in his forms correctly and that the Department
may have made a mistake, or 70 separate mistakes, in paying money to him that
he was not entitled to receive. The court found that the forms were the only
evidence which had the potential to support that defence and that it would be
abuse of process for the case to proceed without them.
The
decision turned on the facts of the case. Nonetheless, the case shows the value
to the prosecution of being able to produce original documentary evidence and
signposts the problems the DPP may run into as agencies move away from paper
records to electronic recording systems.[4]
The DPP is obviously chagrined. The case illustrates, however, another application of a principle
referred to by Judge Eames :
If
anyone by a deliberate act destroys a document which, according to what its
contents may have been, would have told strongly either for him or against him,
the strongest possible presumption arises that if it had been produced it would
have told against him; and even if the document is destroyed by his own act,
but under circumstances in which the intention to destroy evidence may be fairly considered rebutted, still he has to
suffer. [5]
The consequences of illegal document destruction may not
only be criminal. It may also lead to an adverse inference against the
interests of the destroyer in civil proceedings. In the BAT Case, lack of evidence to support the plaintiff’s
claim was the result of the destruction, but judgement was awarded against
them, partly on the doctrine of adverse inference.
The Judge’s ruling in McCabe (which may or may not survive
appeal) was based on the fact that an absence of records held by BAT made it
impossible for the plaintiff to make her case using documents which supported
her claims disclosed in pre-trial discovery.
Discovery is the process whereby a litigant may require the other party
to hand over documents which may assist the litigant to make his or her case.
Obviously, only documents still in existence can be
discovered. If the respondent has
already lawfully disposed of a document then the plaintiff cannot discover or
use it. The process of discovery is
itself surrounded by complex rules of law and procedure. One aspect of discovery is the rule against
destruction of documents relating to current legal proceedings. The question is : when are legal proceedings
current?
Every jurisdiction in Australia makes it a crime to destroy
evidence needed in legal proceedings.
In Queensland, the relevant statutory provision at the time of the
Heiner shredding was section 129 of the Queensland Criminal Code –
129. Any person who, knowing that any book,
document, or other thing of any kind, is or may be required in evidence in a
judicial proceeding, wilfully destroys it or renders it illegible or
undecipherable or incapable of identification, with the intent thereby to
prevent it from being used in evidence, is guilty of a misdemeanour, and is
liable to imprisonment with hard labour for three years.
Even in civil proceedings, destruction of evidence is still
criminal. In the BAT Case, the
judgement was delivered in the civil issue under consideration. This points to an important distinction
between civil and criminal liability.
The burden of proof in a criminal case is on the prosecutor and the test
of guilt is “beyond reasonable doubt”.
Civil cases are determined on the balance of probabilities. The consequences of document destruction may
be criminal or civil. Generally, it
opens up the possibility of criminal prosecution (of an individual or a
corporation as in the Andersen Case).
This is, however, difficult to prove and does not necessarily benefit an
intending litigant.
The penalty in the BAT Case lay in the directed verdict
against the wrong-doer. This was not a
criminal finding – only a separate trial would have established that. This was a court which concluded that deliberate
wrong-doing had been done with the intention of obstructing justice in the
civil case under consideration and which had accordingly made a judgement in
the plaintiffs favour and, in effect, punished the wrong-doer by finding
against BAT and awarding damages to their opponent.
The BAT finding was punitive. The judge did not rule for the plaintiff on the grounds that she
had made her case. The ruling in her
favour was because she had been denied the opportunity to make her case by the
actions of the defendant. The defendant
was, in effect, punished for the consequences of their “document retention”
practices which had, in the court’s view,
denied justice to the plaintiff.
In American law, this doctrine takes the even more explicit form of
raising the possibility that a negative inference may be drawn by the court
where document destruction results in evidence being unavailable – no matter
what the destroyed document may or may not have said, the court will assume it
said something to the detriment of the entity shown to have unlawfully
destroyed it. Judge Eames drew on
Australian and British precedent to canvass a similar principle in the McCabe
Case (see below).
The law applies only to documents which exist. Reviewing the BAT Record Managers’ Training
and Education Workbook, Judge Eames noted that there “is nothing improper in
advising a client against creating new documents which would be embarrassing to
disclose in proceedings”[6]. The mere fact that documents are
subsequently sought does not make their destruction unlawful. It is the state or likelihood of impending
legal proceedings which is at issue.
About this, there remains some uncertainty. The significance of these and other cases is that they assist in
clarifying the issue.
Lawyers for the Queensland Government, the QCJC, BAT, and
Andersen all argued that their actions were not prohibited by the law relating
to obstruction of justice. Both the
Queensland Crown Solicitor and the Andersen staff training video argued that
documents can be destroyed right up to the moment when papers are filed in
court.
These arguments deal with the rule against document
destruction in court actions. The Andersen/Enron
Case, however, involved investigations (which might have led to court action)
not pending court action per se. In
America, an investigation in which court action is merely a possible result
invokes the rule against document destruction.
The law in Australia is not altogether clear, but in America, the role
of Congress and government investigative bodies generally is much more likely
to be deemed to be on a par with court proceedings. Even in Australia, it is likely that document destruction for the
purpose of denying a Parliamentary Committee access to evidence would come
within some kind of prohibition, though it might have to do with contempt of
Parliament rather than the Criminal Code.
Recently, the Australian ACCC mounted highly publicised
raids on petrol companies to seize documents in its investigation of possible
price collusion. Whether the law
effectively prevents document destruction for the purpose of thwarting the
investigations of such governmental watch-dogs in Australia remains
unclear. In America, the law treats
investigations as coming within the ambit of “proceedings”. This is an area of the law in which those
interested in corporate regulation (both public and private) need to keep
vigilant.
However proceedings are viewed, there is good authority that
they can be viewed as pending before the formal “filing” of documents in court
or the formal commencement of investigative hearings. That was certainly the view of Judge Eames in the McCabe
Case. He found that BAT and its lawyers
sought to take advantage of a window of opportunity between the termination of
one case and the commencement of another to destroy documents which had been
found detrimental in the first case, so that
they could not be used in another.
BAT argued that so long as no case was pending, they were
entitled to destroy documents. Eames
replied that, in the case of the tobacco industry, the likelihood of other
cases coming along which would need to discover and use the same documents was
so great that it was unreasonable for the company to argue that it could not
foresee that the documents would be needed for litigation. Accordingly, he ruled against BAT because
they had deliberately deprived future litigants of a fair hearing.
Once proceedings have commenced, it is a serious matter for one litigant to
destroy documents which have been subpoenaed by the other party. When Crown
Solicitor O'Shea advised the Goss Government in January 1990 on the status of
the Heiner Inquiry, he recommended (January 23) that the documents gathered by
Heiner should be destroyed if it was decided to terminate the process, possibly
believing them at that stage to be Heiner's private property. He noted,
however, that :
This advice is predicated on
the fact that no legal action has been commenced which requires the production
of those files.[7]
When the
Archivist's approval for destruction was subsequently sought, proceedings had
not yet commenced in the very narrow sense meant by O’Shea and no proceedings (in
that sense) were begun before the records were eventually destroyed. It is also
apparent that Coyne's wish to see the records and his intention to take legal
action was known. In evidence before a
Senate Committee, QCJC spokesman, Michael Robert Barnes confirmed that this was
the QCJC’s finding of fact (and QCJC was an investigative body, established by
statute, and competent to make such a finding) :
Mr Barnes: "There is no doubt that the documents were destroyed at a time
when cabinet well knew that Coyne wanted access to them. There is no doubt
about that at all."
Senator Abetz: "Is there no doubt in your mind that cabinet
knew that Coyne wanted the documents?"
Mr Barnes: "I am confident that is the case."[8]
The
Queensland Government's defence (based on the Crown Solicitor’s advice) was
that there was no legal obstacle to destruction and that the Queensland
Government was within its rights in proceeding with the destruction. In a
Ministerial Statement to Parliament, the Queensland Attorney-General objected
to criticism that the records were subject to "pending" legal
proceedings - arguing (rightly) that, since proceedings had not yet commenced,
a distinction could be drawn between legal proceedings which had been commenced
or instituted and could thus be described as pending and those which were
"intended", "foreshadowed" or "threatened"[9].
In the words of Crown Solicitor O'Shea:
There is an abundance of
authority to show that a civil action or proceeding is not pending until the
originating proceeding (Writ, Summons or Motion) has been filed in the Court
... All the threats in the world to commence a Civil proceeding (or a Criminal
one) do not make it pending, for the purposes of Section 129 of the Criminal
Code.[10]
Counsel
acting for Kevin Lindeberg, the union official sacked for trying to uphold
Coyne’s rights, I. D. F. Callinan, Q.C., and R. D. Peterson, argued that
O’Shea’s interpretation was too narrow. They drew attention to a High Court
decision in R. v Rogerson and Ors (1992) 66 ALJR 500:
... it is enough that an act
has a tendency to deflect or frustrate a prosecution or disciplinary
proceedings before a judicial tribunal which the accused contemplates may
possibly be implemented ... Mason CJ at p.502.
A conspiracy to pervert the course of justice may be
entered into though no proceedings before a court or before any other competent
judicial authority are pending ... Brennan and Toohey JJ at p.503.
The U.S.
courts have taken an equally strong line in condemning the destruction of
records as an "obstruction of justice" and the whole issue appears to
have received greater consideration there than in Australian courts. The
question was reviewed at some length in The Notre Dame Lawyer in 1980:
Whether a company has an ad
hoc search and destroy operation or a regular records retention program,
management and counsel must consider a federal criminal statutory scheme which
renders the destruction of documents illegal if it interferes with judicial,
administrative or legislative investigations or proceedings ... If a party to a
civil proceeding has destroyed records, a negative inference may be drawn from
that fact and exploited for its prejudicial value at trial.[11]
Federal
statutes in the U.S. restrain destruction of documents (or any evidence) in
judicial proceedings and American courts also have had to consider at what
stage in proceedings a criminal liability arises:
... the courts ... have
concluded that only ongoing or pending judicial proceedings ... fall within the
section's ... language ... The courts reason that a person unaware of the
pendency of a proceeding could not have the requisite intent to obstruct
justice ... The courts justify their literal interpretation ... with the maxim
that criminal statutes should be strictly construed.
Although the substantive
offense of obstruction of justice requires a pending proceeding, otherwise
punishable conduct which precedes pendency is not immune from prosecution. In
United States v. Perlstein the Third Circuit affirmed convictions for
conspiracy to obstruct justice even though the conspirators were not found
guilty of the substantive crime ... The court stated : "... there is
nothing to prevent a conspiracy to obstruct the due administration of justice
in a proceeding which becomes pending in the future from being cognizable under
section 37 [antecedent of present conspiracy statute, 18 USC #371].[12]
The same
principle is applied even more widely to obstruction of proceedings undertaken
by departments, agencies, and committees:
Courts have expressed various
views as to the time at which an agency's activity first qualifies as a
"proceeding" ... when the agency is notified of potential violations;
when pre-investigation begins; when an informal inquiry begins; or when a
formal order is issued directing investigation to begin ... As one court
explained : "[T]he growth and expansion of agency activities have resulted
in a meaning being given to "proceeding" which is much more inclusive
and which no longer limits itself to formal activities in a court of law.
Rather, the investigation or search for the true facts ... is not ruled as a
non-proceeding simply because it is preliminary to indictment and trial".[13]
Similar
issues lie at the heart of the BAT case, where Judge Eames concluded :
289. … The 1985 Document Retention Policy was
created … in anticipation that there would be litigation … with respect to
smoking and health issues. The primary
purpose of the policy … was to ensure the destruction of material which would
be harmful to the defence of any such litigation … words were inserted into the
written policy document to which reference could be made in order to assert
innocent intention and to disguise the true purpose of the policy … At all
times since 1985 … litigation was either on foot or the defendant considered
that future litigation was inevitable … The defendant intended that by the
destruction of documents any plaintiff in the position of the present plaintiff
would be prejudiced in the conduct of their action, both generally and, in
particular, in the ability to lead relevant evidence or to cross examine
witnesses. It was intended by the
defendant that any such plaintiff would be denied a fair trial.
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
362. The extension of the court’s
regulatory power to contemplated litigation is well recognised in the United
States of America, and pre-dates the tort of spoliation which has applied in
many States since 1984. That tort is
said to impose a duty of care not to intentionally and in bad faith thwart a
person’s right of access to the court … Although that tort does not exist in
this country the underlying rationale for the principle applied by the American
courts could as readily be applied with respect to the rules relating to
discovery in this country, in my opinion.
Counsel for the defendant reject that suggestion and submit that if
there is to be such a remedy then it must be brought about by legislative
reform.[14]
Counsel
for BAT argued, in a manner similar to the Queensland Government, that the
present law in Australia cannot operate to penalise a litigant who destroys
documents before proceedings have formally commenced. This contention was rejected by Judge Eames in words which have
yet to withstand the test of appeal but which (whatever their fate) can only be
admired :
367. As I have said, counsel for the defendant
contend, in effect, that only legislative reform will deny a company in the
position of the defendant the right to engage in what Wigmore might have
deprecated as being “the sport of high quality” of the destruction of documents
in anticipation of litigation. In my
opinion, the rules relating to discovery which I have cited, above, are not so
inadequate, and the inherent powers of the Court are not so deficient, that, in
the event that no alternative course is reasonably open to remove the
unfairness, the court must require a plaintiff to participate in an unfair
trial and seek to obtain a verdict, in those circumstances, against a defendant
whose actions rendered the trial unfair.[15]
It is the intention of the document destroyer
which is material. This issue was at
the heart also of the Heiner Case. The
QCJC, again as a finding on a matter of fact which it was entitled to make,
gave evidence to the Senate Committee that the Goss Government’s intention was
to prevent Coyne getting access to the Heiner records :
Senator Abetz: "I am trying to get a handle on this. What
seems to have occurred is that, with the potential threat of a defamation suit,
Cabinet decided to shred the documents because they were of no historical
value, knowing full well that it may be the material evidence on which a
potential litigant would rely to pursue or prosecute his case."
Mr Barnes: "I think that probably is a fair summary. As a result of the
actions, the correspondence and the communications, I think they believed that
Coyne was considering suing the people who gave evidence before Heiner for
defamation. As you say, the Crown Solicitor's advice seems quite clear that
that was a potential and, consistent with that advice, cabinet decided that
they would prevent that from happening."[16]
It has
been argued that the Queensland Government should have behaved as a "model
litigant" and, knowing that proceedings were contemplated (or
"threatened"), it should have held its hand. In the words of one submission
to a Senate Committee :
The simple fact is that, by
seeking to destroy these documents, the Crown has removed a prospective
litigant of his rights. This cannot in any true sense of the word be in
accordance with our democratic principles.[17]
One of
the Senators also found the difference between destroying documents after legal
proceedings are under way and destroying them in order to prevent proceedings
from commencing hard to fathom :
Senator Charmarette: "I am then saying that to me, from a lay point
of view, to actually destroy the documents to prevent litigation being on foot
seems very similar. Are you now saying that to actually use as your rationale
for the destruction to prevent litigation being on foot is somehow different
from litigation being on foot?"
Mr Barnes: "Yes. With respect, I say it is a lot different. What you do
with your own property before litigation is commenced, I suggest, is quite
different from what you do with it after it is commenced."[18]
If Crown
Solicitor O’Shea was wrong in law and the motives of the Queensland Government
were darker than a desire to protect employees of JOYC from prosecution, then
the necessary ingredients of criminal intent may be present – though the likely
defence of Crown Privilege might well succeed.
At the
time, and subsequently, the possibility has been canvassed that the Goss
Government had other motives for destroying the Heiner records beyond what was
always claimed. The Government, and its
present-day successor, have always tried to make out that Cabinet wished to
destroy the records out of consideration for the interests of JOYC staff who
had spoken to Heiner. The Government
wished to prevent successful action for defamation being taken against them –
presumably by Coyne. So, the Government
destroyed the evidence Coyne might use to take action against their
employees. This defence does not
withstand scrutiny because of the defence of privilege that was available and
because the Government had, in any case, accepted liability on behalf of those
employees who had spoken with Heiner.
If any pecuniary interest was being protected by the shredding,
therefore, it was the pecuniary interest of the Crown in preventing Coyne from
successfully suing employees of the Crown and obtaining damages which the Crown
was now pledged to pay.
An even
darker view may be taken (though not proven).
The subsequent revelations of the Forde Royal Commission demonstrated
that inmate abuse was widespread in
Queensland institutions. Even
though knowledge of these abuses came to light in the years following the
Heiner shredding, successive Queensland Governments have been especially
careful to prevent any effective investigation of particular allegations or
into the responsibility of politicians and officials for these abuses[19].
The suggestion is that staff revelations made to Labor candidate Warner were
used in the lead up to an election to cause trouble for the outgoing Cooper
Government. The consequent Inquiry,
having done its work in getting good publicity for the Opposition during the
campaign, then became an embarrassment for the incoming Labor Government. Inheriting a policy of cover-up, it is
suggested, the new government, like its predecessors, decided to protect JOYC
staff represented by their union allies and their departmental officials from
the fallout when Heiner began to uncover instances of inmate abuse.
The question is whether the Queensland Government wanted to protect staff who
had given Warner her tip-off from legal action by Coyne or from disclosures of
inmate abuse being uncovered by Heiner.
We now know that very serious matters indeed, including pack-rape of an
Aboriginal girl, had been raised with Heiner.
Before the Forde Royal Commission uncovered the extent of the corruption
some five years later, it appears that governments, bureaucrats, and unions may
all have been involved in covering it up.
Even when the abuses were exposed in later years, no attempt was made to
have individuals involved take responsibility.
Was the
Goss Government, now that the allegations had served their political purpose,
in pursuit of this policy, conspiring with the unions, anxious that their
members should not be accused, and the culpable bureaucracy they had inherited
from their predecessors, to bury what Heiner was uncovering?
It is reasonably clear, that whatever the precise nature of
the law, and that may change from time to time, questions of discovery and
obstruction of justice can arise whenever document destruction is undertaken
within the prospect of impending, likely, or possible legal action. The motives and purposes of those
undertaking it can then come into question
All these cases revolve around the issue of whether routine
document disposal procedures were but a disguise for more sinister
intentions. At the very least,
therefore, recordkeepers need to be aware that ordinary disposal (whether under
a government archives law or in respect of non-statutory housekeeping in a
private corporation) can give rise to these issues.
One way or another, the lawyers, the businessmen, and the
accountants have had to confront the flaws in their own behaviour highlighted
by recent cases and start to work out ways of preventing such things happening
again. In respect of Heiner, archivists
have never done this adequately. For
years, archivists have denied or obfuscated over whether the State Archivist
should bear any of the blame.
Admittedly, the Heiner story emerged much more slowly than Enron or
McCabe. At no time, however, has the
profession as a whole faced up to the implications of Heiner and years were
wasted in futile argument over whether or not there was any fault to be found
in us. Admitting that fault is the
first step towards learning the lessons and figuring out how to prevent a
repetition.
Eventually, after refusing to comment or act at all for several years, the Australian Society of Archivists (ASA) spoke out in 1997[20]. They blamed the Queensland Government for deceiving the State Archivist and they blamed the QCJC for misrepresenting her role before the Senate. In short, they blamed a bad appraisal on everyone except the person who carried it out.
Far from holding the archivist accountable for her actions, the profession praised and exonerated her. Following the Morris/Howard Report (1996)[21], the Council of Federal, State, and Territory Archives (COFSTA) "passed a unanimous motion of support for the actions of the Queensland State Archivist in the matter of the Heiner Inquiry records" and "expressed its support for the State Archivist and for the findings of the Morris Report that the State Archivist acted in accordance with the Libraries and Archives Act 1988"[22]. COFSTA equated legal liability with professional accountability.
Then, in 1999, the Council of the ASA finally acknowledged that “the appraisal of the documents [in Heiner] did not conform to … standards of best practice and, hence, was not conducive to a more satisfactory outcome”[23] and drew two lessons from the Affair, that :
1. Government archivists are key agents of accountability, and
2. appraisal must be conducted according to professional standards.
Incredibly, COFSTA then publicly repudiated “crucial parts” of the 1999 Statement “despite your most recent revisions”[24]. As recently as 2002, the ASA Council has declared that it will “take no further action on Heiner” unless further evidence comes to light or in the (very unlikely) event that a Royal Commission is established[25].
To some extent, therefore, we have, in denying the evil, denied ourselves the opportunity to learn from it. Outlined below are some of the issues which might have been considered in the context of a more professionally mature response to the Heiner Case.
In
the discussion which follows, it may seem that government recordkeeping alone
is involved. This view would assume
that government is regulated but the private sector is self-regulating. So far as the law of destroying evidence is
concerned, this is clearly not so. Even
in the arena of recordkeeping practice, however, it is a misconception.
Government
recordkeeping is self-regulating too.
The fact that intra-governmental recordkeeping is subject to regulation
by law-makers makes it appear to be different.
But this is done simply because Governments are in the habit of
regulating themselves using legislation.
Archives laws belong to a special sub-species of statute – applying not
to society at large but primarily to agencies of government. The financial affairs of government,
administrative appeals, and ombudsmen’s powers of investigation are similarly
provided for – through Acts of Parliament which regulate the affairs of
government agencies rather than the citizenry at large. An archives law, regulating the internal
activities of Government is no different, conceptually, from a directive of the
Board or the CEO of a private sector organisation.
Conceptually,
the business units of the private corporation stand in exactly the same
relationship to such directives as government departments and agencies do to
archives laws. The State may, indeed,
interfere and control the standards of corporate behaviour. The catastrophic results in world financial
markets of the Enron collapse and the subsequent rush to re-regulate corporate
activity is an indication that private sector self-regulation may (for the
immediate future, at any rate) need to be as rigorous as public sector
self-regulation is, at least on paper, under the archives laws.
The
converse is also true. Post-Enron, the
private sector has become vociferously self-conscious of corporate governance
as an issue. Business has been reminded
that integrity is as important to consumer and investor confidence as it is
alleged to be to voter confidence. For
some time prior to this, the public sector has been held up to be more
accountable under its archives regimes than a “self-regulating” private
sector. The standards to which business
now aspires – if achieved - may soon call into question the efficacy of the results
governmental archives regimes, good on paper but bad in practice, are in fact
delivering by way of corporate governance outcomes in the public sector.
Here, then, are some suggestions about what the recordkeeper can do :
a. Know the Law
It
is not within the competence of the average recordkeeper to come to a view the
technicalities of the law on these matters.
The kind of familiarity with the issues outlined in this article can be
expected and taking care not to aid and abet others in breaking the law would
be both professionally ethical and prudent. But there are clearly limits upon
how far a professional recordkeeper (whether government archives authority or
corporate employee) can inquire into the circumstances of every document
destruction or be expected to enforce the laws on discovery within the
organisation for which he works.
It is outside the archivist’s competence to establish the
likelihood of legal proceedings case by case.
General schedules do not provide an answer either. Knowing the law, what the recordkeeper can
do is to require information be disclosed before granting authority to destroy
or make continuing disposal approval subject to a caveat which voids the authority until such likelihood
ceases. In short, the archivist can
warn, demand to be informed, and qualify approvals.
b. Ask Questions
To begin with, the recordkeeper can ask questions. A proposal to destroy records can be met by
a question : are you aware of possible legal proceedings in which these might
be relevant? So far as we know, the
Queensland Archivist was not told and Barnes’ outburst about the role of the
Archivist before the Senate Committee may have been prompted by the need to
defend the Queensland Government for not telling her. We just do not know.
If the Archivist
asks for relevant information and it is not provided, she can refuse to agree
to destruction. If false information is provided, then the responsibility for
thwarting her attempt to inform herself of relevant considerations is placed
clearly where it belongs - on the agency which trades in untruth - and the
propriety of the agency's action can be judged by appropriate authority (e.g.
the CJC or the Ombudsman). If the Archivist doesn't even try to find out what
needs the records may serve before she agrees to their destruction, the
question becomes whether this manner of exercising the discretion is proper -
regardless of any strict obligations which may or may not be imposed by
legal/legislative provisions.
c. Impose
Conditions on Disposal
Government
archivists can go further and enter a caveat on all disposal authorities making
the statutory authority to destroy records under the authority void if they are
likely to be wanted in legal proceedings.
The caveat could state what kind of circumstances these are, based on
the increasing body of judgements in this area. This would deprive a corporation of the defence that discoverable
documents were destroyed lawfully according to routine procedures. Routine procedures would have already
contemplated the possibility of legal proceedings and provided for that
eventuality by voiding the authority in those circumstances.
d. Establish
Recordkeeping Rules & Procedures
Above all, the Heiner Case is a warning against what is sometimes
called “ad hoc” disposal. The
Queensland Government came to the Archivist and requested authority to destroy
the Heiner records. They were destroyed
in a decision which applied only to the Heiner records. This kind of ad hoc decision is very
dangerous. What is needed is routine
procedures and rules which determine in advance of any particular case the
outcome for the type of records under consideration.
In the Heiner Case, the Queensland State Archivist had to deal with
a request to dispose of records of a lapsed inquiry. If, instead of dealing with that request as it was received, the
Archives had a policy on all such records, it could have replied by telling the
Goss Government that it was customary to retain such records in accordance with
that policy before destroying them. It
would have been much harder for the Goss Government to have insisted on
destruction in contravention of a procedure applying to all records of similar
type. In the BAT case, a document disposal
policy seems, according to the judgement, to have been manufactured for the
purpose of getting rid of dangerous documents under the guise of a routine
procedure.
e. Ensure That Records of Disposal Are Kept
Archives legislation in this part of the world is increasingly adopting the
lead of the 1973 Public Records Act (Victoria) and including a provision
requiring that full and accurate records are made and kept of the business of
an agency or department. This principle
must also apply to appraisal and disposal.
Appraisal and disposal are themselves the business of the organisations
concerned and full and accurate records of that should also be made and kept.
The existence of such records would make it harder, in review, to disguise
actions which are undertaken in extraordinary ways (rather than in routine
manner) and for dishonourable reasons which go beyond the legitimate desire for
good housekeeping.
f. Monitor Compliance Through Reporting and Audit
Standards,
procedures, and requirements under the archives law can be specified for
general application. Some compliance
regimes stop short at demonstrating that compliant units are aware of external
standards, have implemented required methodologies, and incorporated them into
policies and procedures. This gives no
guarantee that requirements have been implemented. Examination of full and accurate records of disposal is one way
of determining whether requirements are being complied with and routinely
applied. In addition to modifying
policies and procedures, departments and agencies should report back –
responding to specific demands from the monitoring authority for information
using templates developed by the monitoring organisation for that purpose.
The
monitor and the setter of standards and requirements cannot be the
auditor. Audit must be undertaken by a
third party. An effective audit
requires that performance be measured against generic standards and procedures
in two ways – by examining an auditable record of implementation and by testing
the veracity of that record. It is
necessary, therefore, that the reporting system creates a record of
recordkeeping and that the system documents implementation, not simply a
modification of policies and procedures.
The specific requirements of the reporting system and the documented responses
of the units who comply achieve two things : an account of performance on which
conclusions can be reached by the auditor as to the extent of compliance
against specific bench-marks and a record which the auditor can check against
the actual situation (to discover whether the return accurately reflects the
situation). This is the reason why
generic standards, procedures and methodologies cannot, of themselves, provide
an effective basis for auditing recordkeeping.
An audit which discloses no more than the extent to which procedures and
methodologies have been modified is of little practical use. The question is whether the modification has
achieved measurable results against a bench-mark upon which the unit was
required to report ahead of the audit being undertaken. An effective audit will measure compliance
with precise requirements laid down in a monitoring or reporting system and be
based on an examination of the veracity of what is being reported on.
These
cases illustrate recordkeeping practices violating the principle that records
should be kept for as long as they are needed.
The remedies suggested in the final part illustrate how an organisation
which desires to conform to that principle can do so more effectively. Those remedies are useless, however, if the
organisation is determined to violate that principle in any case. Moreover, this analysis does not canvass the
position of the recordkeeping professional who finds himself in the position of
having to conform to such a corporate policy or else behave in a manner
contrary to his employer’s wishes.
Two kinds of dilemma can arise : when an organisation’s behaviour contravenes
the law and when it is lawful but ethically wrong. In the first instance, cases such as the ones under discussion
here can provide elucidation and guidance as to the true state of the law. The legal position is then reasonably
clear. A person cannot be legally
obliged by contract of employment to break the law.
In case of unethical behaviour, it becomes a question of both personal values
and professional values to what extent the recordkeeper can (or should) operate
in defiance of organisational preferences.
Some professions indicate areas of professional activity in which
professionals may, and even must, disobey and violate their obligations under
contracts of employment when professional standards would otherwise be
breached. Since no one can be
contracted to commit an illegal act, it becomes relevant to ask when
professional codes of ethics may be held to have the force of law.
Could
such a conflict prevent an employer (regardless of any term of the contract of
employment) from contracting a professional to undertake an action which would
violate the professional’s code of ethics?
It could be argued that when an employer contracts with a professional,
knowing him to be bound by such a code, the contract of employment must be read
as being subject to the code’s provisions – i.e. that the employer cannot contractually
oblige a professional to break the code of ethics by which he is bound and that
any term of a contract of employment which purports to do so is consequently
void. The legal position of
professionals who conduct themselves accordingly is, however, far from clear.
One answer to this dilemma may lie in strengthening the
independence of the recordkeeper in controlling disposal, setting standards,
and monitoring performance. This can be
done, both in the public and private sectors, by according the recordkeeper
customary, legal, or even constitutional protections of the kind given to
auditors, ombudsmen, and the like. This
is a large question. It will first be
necessary to decide whether the whole role of the recordkeeper needs such
protection. Do preservation and access
require it, or only disposal, bench-marking, and monitoring? Does this mean that recordkeeping
authorities should be split into two regimes?
We have seen how the traditionally respected and independent role
of the auditor has been devalued in cases such as Enron with the erosion of
accounting standards. We have seen how,
more recently, new rules have been made in an attempt to re-establish that
independence. Has there developed
within the recordkeeping community a sufficiently robust, well articulated, and
agreed upon set of standards against which to measure the performance of a
constitutionally protected recordkeeping authority? It is not enough to put recordkeeping forward as a candidate for
such protection on the basis that our professional judgement can be
trusted. It must be possible to tell,
as recent history has shown in the case of auditors, whether or not we have
betrayed the trust reposed in us. It is
far from clear, in those terms, that we are yet worthy of protection.
The account given above of the professional response to the Heiner
Affair reveals a profession in Australia which was not itself accountable for
its own actions. This judgement is
possible regardless of the stand one takes on what ASA and COFSTA have actually
said and done. There has been much
dispute over this and no clear outcome.
The point is that for the profession to be trusted with the kind of
constitutional “independence” that auditors, courts, and ombudsmen claim, its
behaviour would have to be made subject to bench-marking in the same way – not
simply to processes of self congratulation and recrimination. In the debate over Heiner, there were no
bench-marks to which anyone could appeal as an independent point of reference
to determine whether or not, in the case of the Heiner appraisal, the
Queensland Archivist got it right or got it wrong.
The Australian archival community still needs such a point of
reference by which to measure, evaluate, bench-mark and criticise (in the intellectual
sense) the actions of the next Australian archivist who botches an
appraisal. The Code of Ethics adopted
by the Australian Society of Archivists, including a flawed provision
apparently excusing archivists from conducting themselves ethically if this
would place them in conflict with their employers :
As
employees archivists are bound to conform to employer expectations of,
standards for or directions about, matters like demeanour and obedience,
handling of confidentiality or privacy issues, resourcing levels, and these may
conflict with professional standards[26]
provides scant assistance in this matter.
The
Eames judgement in McCabe was subsequently overturned on appeal to the
Victorian Supreme Court. It is
currently (September, 2003) on its way to the High Court of Australia. In brief, the Supreme Court decided that a
judge was limited to determining whether or not a perversion of the course of
justice had occurred, that the standard of proof was civil (on the balance of
probabilities), that the plaintiff (McCabe) had to prove that, and that Judge
Eames had therefore decided the issue on the wrong point of law.
Regardless
of the final outcome, after the Eames decision was handed down, Commonwealth
and State Attorneys-General soon met and issued new, stricter guidelines for
lawyers advising clients on document “retention” practices[27].
28 Chris Hurley is an internationally known practitioner, theorist and author in the field of archives and records management in the public and private sectors, including as Keeper of Records of Victoria State, Australia, and General Manager and Acting Archivist of the New Zealand National Archives.
[1] Phil Dickie, The Road to Fitzgerald (Brisbane, University of Queensland Press, 1988), p. 1.
[2] Transcript of Interview, ABC Brisbane, 20 May 2002, between Steve Austin and Alastair McAdam.
[3] Australia, Senate Select Committee on Unresolved Whistleblower Cases, Transcript of Evidence, Brisbane, 23 February 1995, p. 108.
[4] Australia. Commonwealth Director of Public Prosecutions. Annual Report 1998-1999. Ch. 7 Significant Cases – Bourke.
[5] Judicial Committee of the Privy Council. The Ophelia, 54
[6] McCabe vs British Tobacco [2002] VSC 73, par.80
[7] Australia, Senate Select Committee on Unresolved Whistleblower Cases, Submissions …. Vol. 1 (Queensland Government), Attachment : copy of letter from K M O’Shea to Acting Director-General, Department of Family Services and Aboriginal and Islander Affairs dated 23 January 1990.
[8] Australia, Senate Select Committee on Unresolved Whistleblower Cases, Transcript of Evidence, Canberra, 29 May 1995, p. 682.
[9] Australia, Senate Select Committee on Unresolved Whistleblower Cases, Submissions … Vol. 1 (Queensland Government), Attachment : copy of letter from Premier of Queensland dated 21 February 1995 – being a copy of a Ministerial Statement by the Queensland Attorney-General, p.7.
[10] Ibid., Attachment : copy of letter to the Committee from the Premer of Queensland dated 31 March 1995 – being a Memorandum dated 21 March 1995 from Crown Solicitor K M O’Shea to the Attorney-General, p. 2.
[11] John M Fedders and Lauryn H Guttenplan, “Document retention and destruction : practical, legal and ethical considerations” The Notre Dame Lawyer Vol. 56, No. 1 (October 1980), pp 7-8.
[12] Ibid., pp. 23-24.
[13] Ibid., p. 24.
[14] McCabe vs British American Tobacco [2002] VSC 73
[15] Ibid.
[16] Australia, Senate Select Committee on Unresolved Whistleblower Cases, Transcript of Evidence, Canberra, 29 May 1995, p. 696.
[17] Australia, Senate Select Committee on Unresolved Whistleblower Cases, Submissions … Vol. 3 (Shredding of the Heiner Documents), R D Peterson, p. 2.
[18] Australia, Senate Select Committee on Unresolved Whistleblower Cases, Transcript of Evidence, Brisbane, 23 February 1995, p. 103.
[19] Bob Bottom, “Something Rotten in the State of Queensland” The Bulletin (23 September, 2003), pp. 20-22.
[20] Australian Society of Archivists Inc, “The ‘Heiner Affair’ – A Position Statement, 18 March 1999”, ASA Bulletin (April, 1999), pp. 49-51.
[21] Anthony J H Morris Q.C. and Edward J C Howard, Report to the Honourable the Premier of Queensland … An Investigation into Allegations by Mr Kevin Lindeberg … (1996). These two lawyers were appointed to investigate the Heiner Affair. Their report recommended further action and the conduct of further investigations on possible unlawful behaviour. They did not recommend further investigation of that kind into the role of the State Archivist.
[22] Australian Society of Archivists, Bulletin (April, 1997), p. 36.
[23] Australian Society of Archivists Inc, “The ‘Heiner Affair’ – A Position Statement, 18 March 1999”, ASA Bulletin (April, 1999), pp. 43-49.
[24] Letter from COFSTA to ASA dated 18 March 1999 published in Australian Society of Archivists Inc, ASA Bulletin (April, 1999), pp. 52-53. What revisions had already been made before the statement was issued remains unclear. COFSTA took issue with the idea that appraisal should be based on precedent rules rather than on particular cases. Their letter suggested (in my view, wrongly) that this was an issue about whether or not all appraisal should be done using disposal schedules. They also took issue with criticism of the speed at which the Queensland Archivist appraised the Heiner records.
[25] Stephen Yorke, "The Heiner Affair" on archive of the aus-archivists Listserv, 13 December 2001.
[26] The full text of the Code of Ethics may be found at the ASA website
[27] “Crackdown on document shredding” Australian Financial Review (2 August, 2002).