Archives In Brief 9 - Your rights of access
- What records are covered by the State Records Act?
- Which State records are available for public access?
- What is an access direction?
- Why close some records to public access?
- Who makes access directions?
- How are these directions made?
- How long do access directions remain in force?
- Can access to records be withheld for other reasons?
- How can I find out about particular access directions?
- Can I apply to have an access direction made for records not already covered?
- Can I appeal against a CPA direction?
- Is it possible to access records closed to public access?
- Is it possible to obtain access to records still held in public offices?
- Is it possible to access records less than 30 years old?
- Where can I get more information?
Public access to the records of the Government is a fundamental right in a democratic society. The State Records Act promotes the principles of accountability and access by requiring public offices to create records of their business and administrative transactions and ensuring that records of significant value are preserved. The underlying priniciple is that all relevant records of enduring value will be publicly available in due course.
The State Records Act governs public access to State records that are at least 30 years old. It applies to the records generated by 'public offices', including all New South Wales Government departments, authorities, universities, local government bodies and the public hospital system. Its application may be extended to the Governor, Parliament and the courts by agreement. The Act does not apply to the records of private individuals or organisations, nor does it apply to private records held by State collecting institutions.
The State Records Act establishes a general entitlement to access to State records that are in the 'open access period', that is records that are at least 30 years old. There is presumption that records in the 'open access period' should be open to public access.
The fact that a record is in the open access period, however, does not automatically mean that it is available for public access. For a record to be available under the Act it must be the subject of an 'open to public access' direction.
An access direction is a direction that a series, group or class of records is open to public access (an 'OPA direction') or closed to public access (a 'CPA direction').
Although there is presumption that records in the open access period should be open to public access, some contain information, such as sensitive personal information, requiring a longer period of closure.
Public offices are required to ensure that records in the open access period for which they are responsible are covered by an access direction. This applies regardless of whether the records are State archives or are still held under the control of the public office.
Access directions are based on the likely or known contents of a series, group or class of records. They are not usually made on a record-by-record basis. Public offices are assisted in making access directions by the Attorney General's Guidelines to Making access directions under the State Records Act 1998. The guidelines address such issues as security, privacy and confidentiality. The guidelines, and procedures for making access directions, are available in our reading room and on our website.
A CPA direction remains in force for up to 5 years unless it is revoked or renewed sooner. There is a difference between the period the CPA direction is in force and the period of closure. For example, a CPA direction may remain in force for up to 5 years but it could close records for 50 years. The review of a CPA at five yearly intervals allows for an evaluation of the decreasing sensitivity in records with the passage of time. An OPA direction remains in force unless it is revoked by the public office. Public offices can review or revoke access directions at any time.
Records may be withheld from public access to ensure their safe custody and proper preservation. This could also involve providing access in a different format from that requested, such as a copy.
State Records maintains a Register of Access Directions.
The register contains details of all access directions made since the implementation of the State Records Act.
If a record is not the subject of an access direction you can apply to the responsible public office for an OPA direction to be made. There is no application fee and the public office must deal with your application within 14 days. If no direction is made within this time, the records are considered to be subject to an OPA direction.
An application to have a direction made is available on our website and in our reading room. See Archives in Brief No. 96: Applying for an access direction for more details.
The State Records Act does not provide a specific mechanism for an individual to appeal against a CPA direction. The Act does provide for the State Records Authority to request a review of an access direction by the Minister responsible for the public office that made the direction.
In circumstances where you disagree with a decision made by a public office to restrict access, it is appropriate to write to State Records and the responsible office or its Minister seeking reconsideration of the decision. See Archives in Brief 97: Reviews of access directions for more details on the review process.
A public office can also give access to State records independently of the Act on an individual basis even though the record may be closed to general public access. The Act does not affect entitlements to access information under the Government Information (Public Access) Act, 2009 or the Privacy and Personal Information Protection Act 1998. The Act also provides for special access to records closed to public access.
A public office is required to provide access to State records in its custody that are in the open access period and subject to an OPA direction.
Public offices can choose to authorise public access to records before they enter the open access period. Such a direction is known as an 'early access' authorisation.
Our staff can advise you about your rights of access to State records and on access directions to particular records.
© State of New South Wales through the State Records Authority, 2003.
This work may be freely reproduced and distributed for most purposes, however some restrictions apply. See our copyright notice or contact us.