Record-keeping not consistent
Record-keeping is a matter for each agency, so an individual’s records may be scattered among different institutions, agencies and district health boards if a survivor had many placements. Archives New Zealand holds some older files, but the State has no centralised repository of records for those who have been in its care (nor is there any uniform digitising of records). Each government agency has its own file management system. Some health records are held by individual district health boards, and school records, where they exist, are held by individual schools.
No independent service exists to help claimants gain access to, or understand, their records. At present, survivors or their legal representatives must contact relevant agencies individually and directly. Each agency has its own process for dealing with requests for records. The agencies most commonly approached are the Ministry for Social Development (which has a dedicated historic claims unit), Ministry of Education, Oranga Tamariki and Ministry of Health.
Agencies have sometimes moved some of their records to other agencies, – which has made record searches more complex and uncertain. For example, law firm Cooper Legal told us that since some of the Ministry of Social Development’s records were transferred to Oranga Tamariki, it has been difficult to work out who holds particular records:
“When you do an Official Information Act [request] the [the ministry], part of it will get sent to Oranga Tamariki, some might stay with [the ministry]. It’s really unclear who actually has records now, even historic ones. And we’ve been in meetings with both [the ministry] and Oranga Tamariki where they say: ‘Yeah, we’re not really sure who’s got control over things.’ That worries me greatly about who has control of information.”
Survivor James Packer, who is Deaf and has Asperger’s syndrome, said neither the ministry nor Kelston School for the Deaf was able to give him a copy of any relevant records about his time at the school:
“They could not even work out among themselves who held my original personal files … This made the redress process stressful and frustrating, as I could not be precise about when things happened.”
The Confidential Listening and Assistance Service, set up in 2008 to hear from survivors, found that many survivors did not even know that the agencies that had held sway over their lives, kept records of their time in care and they could ask for them. Many survivors were frequently moved between institutions and struggled to accurately remember dates and locations from their childhood.
Lengthy waits for records
Survivors said they had to put up with long delays in obtaining their records. Some claimants waited more than a year. Hone Tipene experienced a two-year period of missing records that have delayed his claim. There is no record of him attending Hato Petera College at all, so he cannot seek redress. David Crichton was frustrated with the time it took to receive information about his own life: “There have been delays and extensions sought by organisations and some places replied that they just hold no information about me. Permission had to be received for some documents to be shown to me. That is unfair. This is my life. Everyone else knows my life except me.”
The Ministry for Social Development was a particular problem because, as Dr Stephen Winter, a senior lecturer at the University of Auckland, noted, its historic claims unit “has never kept pace with incoming claims”. Cooper Legal made repeated complaints to the Ombudsman and the Privacy Commissioner about delays by the ministry, and in March 2015 filed a group claim with the Human Rights Review Tribunal on behalf of 63 clients experiencing lengthy delays. The claim resulted in settlement offers being made to Cooper Legal’s clients. Cooper Legal said the ministry’s performance improved substantially afterwards, but this took several years. Cooper Legal has seen that the time taken to provide records has recently increased once more and the ministry’s Privacy and Official Information team is four months behind schedule.
The ministry told us that finding, collating, checking, copying and forwarding on records was a time-consuming job, many files were large – some more than 1,000 pages – and this made a big job even bigger. Paper-based files could be “old and fragile” and had to be carefully scanned page by page. It said the large number of requests for records had resulted in long delays, but it had since improved its processes.
Records often missing, incomplete or inaccurate
For a variety of reasons, including past record-keeping practices, records sometimes couldn’t be found or contained missing or inaccurate information. One survivor described his difficulty in getting records from a district health board because medical staff had misspelt his name and recorded his date of birth wrongly when he was a child. Before the Public Records Act 2005 came into effect, the public sector was not explicitly required to create and maintain full and accurate records. The survivor “M” found that institutions formerly had a very “casual” approach to record-keeping, never imagining anyone might want to see their own records, and this accounted for a lot of his missing information.
James Packer said he found the lack of records one of the most difficult and stressful parts of the claims process because it complicated the task of bringing together the necessary details to put forward a claim. He said a lack of accurate records undermined the very system of redress.
For Māori survivors, missing, incomplete or inaccurate records has not only delayed or restricted access to redress but for some, where their ethnicity was incorrectly recorded, have felt a complete disconnection from their whakapapa. Doctors and social workers falsely listed Ms AF’s ethnicity as European on her records because Māori babies were less desirable for adoption. “In doing so, they stole my whakapapa and my whenua from me and my descendants.”
We heard that Māori in psychiatric care experienced additional abuse when their records did not reflect their culture: “In the hospital notes they wrote about me: ‘Patient in room staring blankly against wall and was muttering incomprehensible word salad and gibberish, and was asked to keep quiet’. But I was saying a karakia to myself to calm down and seek protection and safety. Their method of asking me to keep quiet was to come into my room, grab me by my long hair, pull my head back and scream in my face, ‘shut up nigger.”
It was not uncommon to find erroneous and hurtful information, including derogatory language about survivors and their whānau, in records. Several survivors described their dismay at the way their behaviour, shaped by an abusive institution, was told. One survivor, Mr X, said he was “disgusted” at reading how he had been labelled a bully:
“They’ve made us do this and now they’re writing saying that I’m a bully, I was never a bully … when I read these files it’s just another path of abuse to us survivors because it’s lies, it’s bullshit.”
A Samoan survivor, Mr CE, had his ethnicity wrongly recorded as part Māori. He described this as “another kick in the face because it shows me that how they did not care about me to get my information right.” Wrongly identifying ethnicity is a widespread issue and can have deep effects on survivor identity.
Whānau of disabled people who died in institutions often want more information about their loved one. Records can assist whānau looking for answers, but records are often unable to be found. One family member of a survivor wanted to know how and when his relative had died, but was unable to obtain his death certificate, meaning he could not find the answers he needed. Another family member felt he was “put through the ringer” when requesting information about his brother who had died in State care, and he hasn’t been able to get answers. He said he needed his brother’s documents “to help me rest”, and to help restore his brother’s mana.
Documentation of incidents of abuse was rare. From the testimony of survivors, we know that children in care often did not report abuse because they soon learned staff would take no action, and indeed might take punish them for speaking up. Institutions themselves had little incentive to keep records of events that reflected badly on them. Information about abuse might have been kept in separate files or put in staff records rather than on survivor files. Staff records were often kept only as long as individuals worked at an institution or were kept for only seven years. The Ministry of Social Development destroyed many staff records in 1999.
Some witnesses and submitters suggested records had been deliberately destroyed or withheld. Cooper Legal, in referring to records of abuse, said “a lot of that material just seems to have disappeared”.
Linda Hrstich-Meyer, general manager of the ministry’s historic claims unit, said the fact records could not be found did not mean they had been destroyed. Other failings can lead to records being unable to be found. Records have been misnamed or mislabelled, leaving them virtually undiscoverable, and lost or damaged records can be incorrectly recorded as destroyed. Ms Hrstich-Meyer told us that “in some rare instances, for some records, unauthorised and unrecorded destruction may have occurred”, but there was nothing to suggest anyone might have deliberately destroyed files for the purpose of defeating a claim.
Files often have blacked-out sections
Agencies sometimes blacked out, or redacted, part or all of hundreds of pages of a survivor’s file, hiding details about family members or photos of school classmates that might have helped the claimant remember and understand their time in institutions.
Māori survivors seeking information about their whānau, hapū and iwi particularly have felt the impact of these redactions, which have prevented them from connecting or reconnecting with their whakapapa, and contributed to their social isolation. The removal of this information has fuelled survivors’ suspicions and distrust about agencies’ motives and sincerity.
However, agencies must comply with the requirements of the Privacy Act 2020. The Act entitles survivors to personal information about themselves, but not information that would lead to “unwarranted disclosure” of information about other individuals. Nonetheless, many survivors expressed concerns about the amount of material redacted in personal files. Survivors and sisters Tanya and Georgina Sammons said their files contained so many blacked-out sections it was difficult to make sense of them:
“For example, in one 90-page file, 45 of the pages were completely blanked out … This made it really hard to go through, and like me, Tanya was left wondering what was on those pages, and how the whole page can need to be redacted.”
One purpose of the Confidential Listening and Assistance Service was to help survivors make corrections to information the State held about them, but this proved impossible. Files arrived with so many redactions that the Service could not begin to correct any errors. Another consequence was that survivors and their advocates struggled to interpret information in their records, which affected their ability to make a claim. Individual government agencies take different approaches to redacting information. The Ministry of Health said it provided records without redactions except where it had health and safety concerns about the contents.
The Ministry of Social Development, on the other hand, heavily redacted files, according to Cooper Legal – which has had considerable experience in trying to obtain files from the ministry. It said the ministry “took a narrow view of what was relevant and removed material which was rightfully accessible by a claimant”. Cooper Legal made a complaint to the Office of the Privacy Commissioner about inconsistent and unnecessary redactions by the Ministry of Social Development in 2012, which was upheld. Cooper Legal also engaged with the Ombudsman’s Office over redactions. While the Ombudsman found that the ministry had unnecessarily redacted some information in one survivor’s case, Cooper Legal gave evidence that there had not been substantial improvements.
Cooper Legal said redactions were “a real impediment to us and survivors understanding what their history is, what the State knew, which at the end of the day is the most important part of this”. It said the back-and-forth process to get unredacted records greatly delayed its work:
“At the moment they are giving us … documents that we say they wrongly redacted back in 2016 and 17, and it will take, you know, three or four years to get those documents sent back to us again.”
Redactions have also been applied inconsistently by the Ministry of Social Development. Frankie Vegas requested her records from different homes over the years and said: “Whenever I received the same set of notes more than once, they were so different. The redactions would vary each time and sometimes pages I had received in response to earlier requests were missing completely.”
Oranga Tamariki has also provided heavily redacted records, taking a similar approach to the Ministry of Social Development. Steven Groom, general manager of public ministerial and executive services at Oranga Tamariki, said making decisions about what material to redact was a challenge, in large measure because of the volume of material. The size of individual files and the cumulative workload of this volume of material (about five million pages a year) added to the agency’s difficulties.
Mr Groom gave evidence that staff found it difficult to ensure that Oranga Tamariki was only releasing information that claimants should have access to under the Privacy Act, when files invariably involve complicated family relationships. It is important that claimants are not given information on other family members without their consent. However, this can lead to survivors struggling to understand records that are heavily redacted.
“I understand that people’s privacy needs respecting. But then also when it’s about you, why can they know and not you?”
Little support for survivors in reading their files
Government agencies’ files can be difficult to interpret at the best of times because of their size, format and bureaucratic language. It is even more difficult for survivors with cognitive problems, learning disability or poor literacy skills.
To compound matters, files often arrive out of chronological order. Survivor Earl White said he found it a distressing and very difficult exercise to spend hours going through his files trying “get them in the right order to make sense of what had happened”. The Ministry of Social Development said it had looked into fixing this problem but maintained that it had to release files in the form in which it held them.
Disabled survivors are more likely to need assistance with interpreting their records. Survivors have told us that reading their files without assistance is very difficult. Contributing to this, some disabled people have been in care settings for the majority of their lives, leading to very long and complicated records.
In addition to help with negotiating their way through the redactions, obscure language and other impediments in their files, survivors also need emotional support and counselling.
Personal files can contain confronting information about survivors, their parents or their abuse. Earl White said he was “shocked to see exactly what [the ministry] had known about the abuse, and the comments they had made”. Maureen Taru said she discovered in her files that she had been given a powerful sedative called paraldehyde without her knowledge:
“I just couldn’t believe it because that’s a nasty drug. As soon as I saw that name, I said to the lady who was with me: ‘I know that drug, it’s a nasty drug. Why would they want to give me that?’”
Survivors told us that support to access and read their records was limited. There are few organisations with specialist expertise in supporting survivors to access their records. The Confidential Listening and Assistance Service arranged counselling and support for survivors in reading their files, but the service was wound up in 2015.
The Ministry of Social Development’s historic claims unit will answer claimants’ questions about the contents of their files and will link them up to a counsellor when they read the files. Oranga Tamariki will also offer to talk through records with survivors and arrange for a social worker or support person to be present if it considers that an individual is likely to find records particularly upsetting. Many survivors, however, are wary of having anything to do with State agencies because of their role in their abuse. The Ministry of Education told us it has offered help to claimants with literacy issues to read through their records. The Ministry of Health does not offer any support to survivors accessing their records.
Finally, some advocates, such as CLAN NZ, found the way agencies handed over records to be “insensitive” and “disrespectful”, in large part because agencies considered the records to be theirs, rather than belonging to survivors.
Complaints processes lengthy
Survivors can take complaints about access to records to the Privacy Commissioner and the Ombudsman. However, Cooper Legal said it had gone to both and experienced lengthy delays because neither had the resources to deal with complaints of the complexity – or volume – generated by survivors of abuse.
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