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Attorney General’s Guidelines on making access directions under Part 6 of the State Records Act
1. Introduction
1. INTRODUCTION
1.1 Purpose
The purpose of these Guidelines is to assist public offices in meeting their responsibilities to make access directions for records under Section 51 of the State Records Act 1998.
1.2 Statutory provisions
Subsection 52(3) provides for the Attorney General to issue guidelines to public offices with respect to the matters to be taken into account when considering whether records should be open or closed to public access. These guidelines, and Part 6 generally, apply both to records in the custody of a public office and of the State Records Authority. Subsection 52(4) provides that agencies must consider the guidelines but the guidelines do not limit the grounds on which a public office can open or close records to public access under the Act.
1.3 Principles
These Guidelines indicate the kind of matters which should be taken into account when making an access direction. It is up to the decision maker to determine how much weight should be given to specific matters in accordance with his or her knowledge of the class of records under consideration and the operations of the public office.
Public access to the records of Government is a fundamental right in a democratic society. The State Records Act 1998 promotes the principles of accountability and access by requiring public sector offices to create records of their business and administrative transactions and ensuring that records of significant value are preserved. The underlying principle is that all relevant records of continuing value will be publicly available in due course.
Part 6 of the Act creates a framework for public access to all records of public authorities which have been in existence for 30 years (the open access period). The Act formalises existing Government policy on access to public records and should not involve any further restrictions on access other than those which already apply. The 30 year open access period reflects a view that most records no longer affect significant interests or are considered sensitive after this time has passed.
1.4 Background
Section 50 of the Act deems a State Record to be in the open access period once it is at least 30 years old. The fact that the record is in the open access period does not automatically mean that it is open to public access. Section 51 requires a public authority to make either an open to public access (OPA) direction or a closed to public access (CPA) direction covering records for which it is responsible and which are in the open access period. Access directions are to be made at the level of the series, class or group of records and only in exceptional circumstances in relation to individual records. Assessment of series, classes or groups for the purpose of making a direction should follow the principles of risk management (see part 1.8 definitions).
Under section 54 of the Act a member of the public can apply to the relevant public office for access to any record in the open access period which is not covered by an access direction. The public office must make an appropriate access direction covering the records within one month of the application being made and must then notify the applicant of its decision. If it fails to make a direction an OPA direction is presumed to have been made. It is in the interest of all parties that directions covering records in the open access period are made expeditiously to ensure all relevant matters are properly considered.
A CPA direction must be renewed every five years (section 55(3)). It can be revoked at any time by making an OPA direction. While a public authority can make repeated CPA directions it should only do so having regard to a future date at which eventual access would be appropriate.
Under section 61 State Records will maintain a register of access directions. Public offices must notify State Records of access directions in writing. The guidelines recommend that, when a public office notifies the State Record Office of directions it has made, it will also notify the reasons for making any CPA direction. The register will be open to public inspection so that members of the public will be able to refer to the register to establish whether a particular class of records is open or closed and the reasons for continued closure.
The fact that a record is not open to public access under this Act does not affect any entitlement to access the record under the Freedom of Information Act (section 56). The State Records Act does not provide the same formal entitlements for applicants as those in the Freedom of Information Act, however the State Records Act encourages people seeking access to records in the open access period and where there is no access direction, to make an application for an OPA direction before applying under the FOI Act (Note to section 56).
1.5 Responsibilities of public offices
The guidelines assume that each public authority will authorise a responsible officer to act as the decision maker and to formally make OPA or CPA directions after an assessment of the records has been made. Decision makers must consider the matters addressed in these guidelines before making an OPA or CPA direction.
The guidelines are intended to promote consistent standards across the public sector when access directions are made. A public office which makes a CPA direction should be able to demonstrate that it has considered the matters referred to in these guidelines and any other matters which are specially relevant to the functions or records of the office.
Under Section 57 of the Act a public office can permit public access to a record which is not in the open access period by authorising the State Records Authority to make the record available for public access. Once made, the authorisation is considered to be an OPA direction. For further details refer to the section. Under section 51(4) access to records which are less than 30 years old or which are subject to a CPA direction can be given independently of the Act.
Section 58 empowers the Premier to approve special access arrangements which limit access to a particular person, persons or class of persons. Circumstances and conditions applicable to special access may be specified by the regulations. The Minister of the relevant public authority or his delegate can then authorise access under the special access arrangements.
1.6 Notification and Review of Closed Access Directions
There are no formal procedures under the Act for members of the public to have an access direction reviewed or to require a public office to seek advice from interested parties before making a direction. However, it is suggested that public authorities should ensure that access directions are determined in a way which is flexible and responsive to changing community standards and interests.
If a public office proposes to make or review an access direction covering a series or class of records and there is an expectation that a large number of people will wish to access these records, or where public access could have adverse effects on a significant class of people or organisations, the public office should consider whether it is appropriate to advertise for public comments on the proposal.
1.7 Conditions of access
Where public offices have concerns over the safe custody or proper preservation of a record, they should consider using section 59, which allows the State Records Authority to make a direction to restrict access to a State archive where such concerns are held, or section 60 of the Act for further guidance on dealing with requests for access once an OPA direction has been made.
1.8 Definitions
The following definitions aim to clarify the process whereby records are assessed for the purpose of making access directions and to assist responsible officers in giving reasons for their decisions.
Adverse effect
An adverse effect is one which could reasonably be expected to disadvantage the person or organisation concerned by either causing them material loss, loss of reputation, shame, humiliation, serious embarrassment or other significant inconvenience.
Confidentiality
The legal or ethical obligation arising from the circumstances in which a person or organisation discloses information to another person or organisation under an express or implied expectation that the information will not be used to adversely affect the discloser’s interests. The obligation is primarily owed to the person who provided the information in the first place. It covers:
- information which the confider has a legitimate interest in keeping confidential, is not in the public domain or able to be found out by anyone without substantial effort;
- personal or non-personal information; and
- a contractual agreement or circumstances surrounding the provision of information which give rise to reliance or trust.
Freedom of Information (FOI)
The Freedom of Information Act 1988 gives individuals a right to access any documents held by a public authority which is not subject to a specific exemption under the Act. The FOI Act primarily applies to records less than 30 years of age. Its exemptions will only continue to apply to records whose sensitivity has not diminished over time. Although a public office may have regard to FOI exemptions when making an access direction it should not rely on them.
Indigenous Records
There are two categories of records relating to Aboriginal and Torres Strait Island people which may call for special consideration. Records containing information about the beliefs or ritual practices of particular traditional communities or groups (sacred/secret matters) should generally remain closed unless the community or group concerned has agreed to their being open.
Records which document the activities or social conditions of indigenous people can also be regarded as sensitive if they contain derogatory or uncomplimentary judgements or otherwise single out Aboriginal people for adverse comment either as individuals or groups. The precise balance between closure, openness and special access in relation to these records is best developed in consultation with representatives of relevant communities and in accordance with established protocols.
Public offices are referred to the Aboriginal and Torres Strait Islander Protocols for Libraries, Archives and Information Services for general guidance on the treatment of indigenous records.
Legal Professional Privilege
Legal professional privilege or client solicitor privilege is intended to protect information or advice which has been prepared for the purpose of litigation. The privilege is exercised by a legal practitioner on behalf of their client and is intended to protect the client.
Privacy
Privacy is the right of individuals to exercise control over the circulation or availability of personal information about themselves. The Privacy and Personal Information Protection Act 1998 gives legal recognition to the public interest in the protection of privacy.
Most of the personal information which is held in archival form after 30 years does not require the same level of protection as personal information which is still being used to make operational or commercial decisions about people.
Privacy is not an appropriate ground for protecting the interests or activities of a public office or its business clients but may apply to individual clients, employees, or other members of the public who are recorded by the public office.
Public Interest in Access
This covers the interests which members of the public have in open access to records of public authorities, either individually or collectively, including:
- the interest in public authorities operating in a transparent and accountable manner;
- the interest in ensuring public officers are accountable for the performance of public duties;
- the interest in promoting research into the political, social and economic affairs of the State;
- the interest of individuals in being able to access information relating to themselves and their immediate families held in records created by public authorities;
- the interest in the widest possible public access to the heritage of the State.
Risk management
Section 52 of the Act recognises the need for risk management in making access directions. Risk management assesses the probability and impact of adverse effects, rather than seeking to eliminate risk altogether.
The Act describes a risk management approach as an assessment which is cautious but not overly cautious and makes it clear that it is appropriately performed on series, classes or groups of records, rather than by looking at the contents of individual records. In general, access decisions should be based on the series, class or group of records as a whole and not on the contents of individual records.
Sensitive Personal Information
Sensitive personal information is information which is still capable of being used or disclosed in ways which adversely affect the individual concerned or whose disclosure amounts to an unreasonable disclosure of personal affairs. It usually relates to the content of the information but may also arise from the context in which the information occurs. For example the fact that a person’s name is listed in a criminal investigation file may be as sensitive as the detailed contents of that file.
In most contexts, basic personal indicators such as name, address date or place of birth cease to be sensitive when they are no longer capable of being used to make decisions about individuals or where their publication would not adversely affect them.
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