Lawlink NSW: 2. Guidelines

Attorney General’s Guidelines on making access directions under Part 6 of the State Records Act

2. Guidelines

2.1 Making access directions

A decision to make an access direction should begin with a clear identification of the public interest in access as broadly defined in part 1.8, and with the presumption in favour of access after 30 years. The decision maker should strike an appropriate balance between the interest in making records publicly accessible and any other competing public interests which would support a longer period of closure.

The large majority of records which are in the open access period should be given an OPA direction. However, the relative proportions of OPA to CPA directions made by a public office will depend on the role and functions of the public office and the nature of its relationship with its clients.

The possibility of closing records to public access may need to be considered where records contain:

a) information provided under an expectation of confidentiality, or to which a legal obligation of confidentiality still applies;
b) information which is protected under secrecy or confidentiality provisions in other legislation;
c) information which is specifically covered by a privacy code of practice under the Privacy and Personal Information Act for records over 30 years;
d) sensitive personal information or information which unreasonably discloses personal affairs;
e) information whose disclosure could jeopardise the future provision of information to a public office, particularly a public office performing an investigatory function;
f) information whose disclosure could compromise the security of the public authority, an organisation regulated by the public authority or any other public office, or otherwise threaten the safety of any person.

In addition to the public interest in open access, the following matters should be considered in support of an OPA direction:

a) whether the class of records or similar classes of records are already publicly available;
b) whether similar classes of records held by the public office or other public offices have been made the subject of OPA directions;
c) whether an appropriate period of time has elapsed to allow records to be made publicly available or when an appropriate time is likely to occur;
d) whether information which in itself may be thought of as sensitive is already public knowledge or is readily available from a publicly available source;
e) whether the interest in access can be provided to researchers under specific conditions while maintaining a CPA direction;
f) any submission or representation made by a member of the public in support of a CPA direction or OPA direction;
g) in the case of large aggregated records such as electronic databases whether access can be given in a way which minimises adverse effects of open access;
h) whether the balance of public interest is in favour of open access.

When considering items (a) to (c), decision makers should refer to the Register of Access Directions to be compiled by the State Records Authority under section 61 of the State Records Act.

After considering the matters covered in the guidelines the decision maker may consider any additional grounds under section 52(4) which are specially applicable to the records held by that public office.

There is no automatic exemption from access for Cabinet documents (see Schedule 1 Part 1 of the Freedom of Information Act 1988 for the definition of Cabinet documents and on access to those created since 1 July 1989 and which are more than 10 years old). Cabinet documents which have been marked by Cabinet Office as containing sensitive personal or commercial in confidence information should be referred to Cabinet Office for review prior to including them in a determination (note to section 52).

If a CPA direction is made, the public office should nominate the date when it is intended that an OPA direction can be made. A decision maker should bear in mind the age of relevant people at the time records were created. Records relating to children may require lengthier periods of closure.

The public office should notify the State Records Authority in writing that a direction has been made, the details of the direction and the reasons for making the direction, for inclusion in the Register of Access Directions. It should also diarise the date of review of any CPA direction (5 years from the date the direction is made).

2.2 Examples of application of the Guidelines

The decision maker is required to balance competing public interests in openness and closure in a way which genuinely considers the likely or known contents of a class, series or group, and without assessing individual records except in exceptional cases. This part suggests considerations which may be relevant when dealing with typical series, classes or groups of records, without aiming to prescribe ready-made answers.

2.2.1 Records likely to contain sensitive personal information.

Records may need to be closed for longer than 30 years where open access would involve an unreasonable disclosure of personal affairs (such as that contained in personnel records, client files of welfare agencies or information derived from medical or health records which has been aggregated with other data about identified individuals), or where disclosure is otherwise capable of adversely affecting an identifiable individual.

Sensitive information will not generally include:

basic identifying information such as name and address, date and place of birth, or
publicly available information, ie. information which has been published and still remains accessible.

As access directions are made for series, classes or groups on public interest grounds, it is not generally appropriate to seek the views of concerned individuals before making a direction, except as discussed in parts 1.6 or 1.8 (indigenous records).

As a general rule the interests protected by closing records cease once the person concerned has died. However, a CPA direction covering records about deceased persons may be considered in exceptional circumstances where one or more of the following considerations apply:

the records deal with sensitive matters which may cause embarrassment or distress to close relatives;
the deceased person might reasonably have expected restrictions on future access at the time information was originally compiled, (see confidentiality); and
the information relates so closely to a survivor that it could equally be seen as information about the survivor.

2.2.2 Records containing information which was given in confidence

Records should not be closed simply because they are labelled as ‘confidential or ‘in confidence’. For the disclosure to be a breach of confidence the information should meet all of the following criteria:

the information should have been originally communicated in confidence, and
it should still be confidential (not generally known or publicly available), and
a disclosure would still breach the confidentiality of the original confider.

A specific form of confidential information is that which discloses the existence or identity of people providing information to public offices responsible for investigating criminal offences or collecting intelligence relevant to national security, and where public access would impair the recruitment or maintenance of confidential sources. Such information would normally be subject to a CPA direction. However this category does not extend to people who routinely report or complain about routine infringements of the law, for example to a local council.

2.2.3 Records containing information which could have an adverse effect on the business affairs of an individual or organisation (commercial confidentiality)

A claim of commercial confidentiality arises where there is a need to protect commercial negotiations conducted by public offices, details of internal business operations of state owned corporations and of firms contracting with public offices.

After 30 years there will usually no longer be any competitive advantage from disclosure of business affairs and the public interest in having access to details of Government business operations will outweigh any adverse effects of disclosure. The information or similar information about the business may well be available through other disclosure regimes.

Public authorities also collect information on the financial position of individual clients. As most records containing financial or taxation records are destroyed before the age of 30 years an adverse business effect would rarely be a reason in itself to substantiate a CPA direction. Records that do survive may be more appropriately closed for containing sensitive personal information.

2.2.4 Records containing information which would adversely affect the enforcement and administration of the law

Records which disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law which, if publicly available, would be likely to prejudice the effectiveness of those methods or procedures may require a CPA direction. However, the public office making such a decision should ensure that it is adequately informed that there is still a real concern at the time a CPA direction is made or reviewed and should not rely on broad presumptions which applied when the information was originally recorded.

2.2.5 Records containing information which could endanger life and physical safety

This could include information which is inherently dangerous or information which could render a decision maker, client or informant vulnerable to violent retaliation or retribution. The nature of the information to be withheld under this heading may prevent a detailed explanation of the reasons for closure. A decision maker should also take into account information whose disclosure could compromise the security of a public authority or its clients eg. details about technologies and the location of hazardous materials or devices.

2.2.6 Records which contain information that could affect the financial or property interests of Government

A CPA direction on the grounds that information could affect the financial or property interests of government should only be considered where public access would:

have an adverse affect on the State’s financial or property interests, and
such adverse effect would be substantial, and
release would not be in the public interest.

2.2.7 Records containing information which is culturally sensitive or restricted under indigenous tradition

Records containing information which is regarded as secret or sacred under indigenous tradition or is restricted to particular groups of people should normally be subject to a CPA direction unless accredited representatives give specific consent to it being placed in open access. Information which focuses attention on the social, health or cultural conditions of an indigenous group or community should generally only be released following consultation with members of that group or community.

2.2.8 Records covered by other legislation

Under section 53 of the State Records Act, a provision of any Act that prohibits the disclosure or divulging of information does not apply to disclosures under Part 6, provided that the information is in the open access period and is the subject to an OPA direction. A public office should not therefore rely on the existence of standard secrecy or confidentiality provisions in legislation which it administers or is bound by when it makes a closed access direction unless the provision expressly overrides the State Records Act.

However the decision maker should still consider whether people have legitimate expectations of confidentiality arising out of other legislation which would be nullified by giving public access. Examples might include, the protection for spent convictions under the Criminal Records Act 1991, protection of HIV information under Part 3 Division 4 of the Public Health Act 1991 or protection of the identity of complainants under the Protected Disclosures Act 1994.

Section 62 of the State Records Act indemnifies the State against actions for breach of confidence or defamation as a result of access authorised under the Act. This provision is designed to protect public authorities in relation to actions performed in good faith or in accordance with a risk managed approach. It does not mean that a public office is justified in disregarding the probability that a disclosure would be defamatory or involve a breach of confidence when this would be reasonably obvious from the nature of the series class or group.

2.2.9 De-identifying personal information

Recent guidelines on research ethics emphasise techniques for anonymising or de-identifying personal information as a means of striking an appropriate balance between privacy and confidentiality on the one hand and the interests of researchers on the other. De-identification by masking out identifying data fields will often be a practical and realistic strategy for providing access where concerns to protect the identity of people would otherwise arise (for example where records form part of a series which is still in use or is designed to be searched or sorted by name or address).

De-identification is not an appropriate option where the primary interest of researchers is to establish the identity of individuals, for example, with indexed material which is of interest for local or family history and where the balance of public interests would otherwise favour openness.

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in , or affected by, the laws of New South Wales, Australia only.

most recently updated 8 April 1999