- Open access period for records
- Obligation to make access directions
- The duration of access directions
- Presumption in favour of public access
- Manner of assessment
- Categories of information that favour a CPA direction
- Other matters to consider
- Early access
- Deciding how long records should be closed
- Notification of access directions
- Ministerial review of access directions
- Protection from liability
A State record is in the open access period once it is at least 30 years old (s. 50). The fact that a record is in the open access period, however, does not mean that it is open to public access automatically.
Each public office must ensure that the State records for which it is responsible that are in the open access period are the subject of an access direction (s. 51(1)). This can be either an open to public access (OPA) direction or a closed to public access (CPA) direction.
When to make access directions
The obligation to make access directions applies only to records in the open access period.
A series, group or class of records that have been, or were, created over an extended period of time may include records that are less than 30 years old as well as records that are at least 30 years old. In this case, records will become the subject of an access direction made for that series, group or class as they enter the open access period.
All State records in the open access period must be covered by an access direction. This means that a public office should make a given access direction before any of the records that it is to cover are 30 years old.
It may be desirable to make the access directions well before this time to take advantage of current knowledge of the records. It may, on the other hand, be considered necessary to wait until the records are close to 30 years old, to understand adequately the likely impact of public access once the records are in the open access period.
State Records' Procedures for transferring records as State archives require that all records being transferred to State Records' control as State archives are covered by an access direction or directions, regardless of the age of the records.
If an open period record is not the subject of an access direction, anyone can apply to the relevant public office for an OPA direction for the record (s. 54). The public office must deal with the application expeditiously. If no access direction is made (whether OPA or CPA) within 14 days, an OPA direction is presumed to have been made.
An OPA direction remains in force until it is revoked, while a CPA direction can operate for up to 5 years, unless it is revoked or renewed sooner. A CPA direction can be renewed any number of times.
An access direction can be revoked by giving an OPA direction to revoke a CPA direction, or vice versa. An access direction can be selectively revoked in relation to some records, so that the original direction continues to apply to the remaining records (s. 55).
When making an assessment as to whether records should be open or closed to public access, a public office must have regard to the presumption that State records in the open access period should be open to public access (s. 52(1A)). That is, open period records should be open to public access unless there is a good reason to close them.
While the large majority of records which are in the open access period should be given an OPA direction, the relative proportions of records covered by OPA to CPA directions made by a public office will depend on the role and functions of the public office.
The assessment should be made on the basis of the known or likely contents of series, groups or classes of records. It should not be on the basis of the contents of individual records unless such an assessment is considered warranted (s. 52(1)).
Assessment on an individual (record-by-record) basis is generally unworkable in this context because of the volume of records involved. Assessment by series, group or class provides a workable, risk-based approach.
Risk managed assessment
Risk management involves assessing both the probability and the impact of adverse effects, rather than seeking to eliminate risk altogether.
Decisions should be based on a public office's knowledge and understanding of the nature and content of records as these relate to the functions of their office. Within the constraints of assessment by series, group or class, the assessment should be cautious.
The possibility of closing records in the open access period to public access should be considered where the records contain:
- information provided under an expectation of confidentiality, or to which a legal obligation of confidentiality still applies;
- information which is protected under secrecy or confidentiality provisions in other legislation;
- culturally sensitive Indigenous information or information that would disclose secret or sacred Indigenous tradition;
- personal information which should be protected from disclosure or information which unreasonably discloses personal affairs;
- information whose disclosure could jeopardise the future provision of information to a public office, particularly a public office performing an investigatory function; or
- information whose disclosure could compromise the security of the public office, an organisation or place regulated by the public office or any other public office, or threatens the safety of any person.
More than one category of information can apply to a given series, group or class of records.
Each of these categories is discussed in more detail in the next chapter.
Similar information already publicly available
The risk associated with public access to open period records containing one of the categories of information that may need a CPA direction will be greatly diminished where:
- the class of records or similar classes of records are already publicly available;
- similar classes of records of the public office or other public offices have been made the subject of OPA directions; or
- information which in itself may be thought of as sensitive is already public knowledge or is readily available from a publicly available source.
A useful source for a) and b) is the register of access directions maintained on State Records' website.
NSW Government information classification and labelling for sensitive information
The New South Wales Government has issued guidelines for information classification, labelling and handling, much of which is likely to be contained in State records. There are five security classifications: Unclassified material; Protected; Confidential; Secret and Top Secret.
These classifications generally reflect the level of sensitivity of information at the time it is created or collected, rather than after 30 years. The classification of the information should be downgraded, and labels removed, when the information is no longer sensitive.
Labels identifying classified information should not, by themselves, be taken as grounds for closing State records in the open access period to public access. In some cases, however, such labels will be a useful pointer to categories of information that may favour a CPA direction when assessed on a risk management basis.
Secrecy provisions do not apply when making access directions
A provision of other legislation that prohibits the disclosure or divulging of information does not apply to the disclosure or divulging of that information under the State Records Act, provided that the record containing the information is in the open access period and is subject to an OPA direction; and provided that the provision does not expressly override the State Records Act (s. 53).
Any Cabinet documents are to be examined to determine whether they contain sensitive personal or commercial-in-confidence information. Cabinet documents that may contain such information are to be returned to The Cabinet Office for assessment (Note to s. 52(1)).
Additional matters and representations
After considering the matters covered in the guidelines a public office should consider:
- any additional matters which are specially applicable to the records held by that public office; and
- any submission or representation made by a member of the public in support of a CPA or OPA direction.
In certain limited circumstances, a public office may permit public access to records not yet in the open access period by authorising early access to those records (s. 57). Generally this is used where there is a strong public interest in permitting public access and where the records concerned contain information that is already in the public domain or that is so innocuous that even the normal 30 year closure is unnecessary.
In deciding whether to authorise early access, a public office is to apply the principles of assessment set out in s. 52. The early access provisions do not authorise a public office to breach any duty or obligation, such as a duty of confidentiality, that it may have in respect of the records. This includes a public office's obligations to comply with the information protection principles in the Privacy and Personal Information Protection Act 1998, and the health privacy principles in the Health Records and Information Privacy Act 2002.
When records covered by an early access authorisation enter the open access period, they are taken to be the subject of an OPA direction.
Once a decision is made that the risk associated with public access to a series, group or class of open period records outweighs the presumption and other considerations in favour of public access, it is necessary to determine how long the records should remain closed.
Depending on the age of the records comprising the series, group or class, a decision needs to be made whether an appropriate period of time has already elapsed to allow records to be made publicly available or when an appropriate time is likely to occur.
This is also a risk-based decision. The aim is to identify a period of time beyond which the risk associated with public access will have diminished sufficiently that it no longer outweighs the presumption and other considerations in favour of public access.
How closure periods work
While a CPA direction can only be in force for up to 5 years (subject to renewal), it can operate by reference to a longer period. The State Records Act uses the example of a direction to close adoption records for 100 years and to be in force for the next 5 years. While the direction remains in force it operates to prevent public access to records in that class that are less than 100 years old.
Formulating closure periods
The following are the most suitable ways of formulating closure periods:
|X years||Until a given record covered by the CPA direction is X years old.|
|X years from [specified event]||Until a period of X years has passed since the date of a specified event (such as the birth of the subject of the record or the closure of a facility) that is easily discernible from the record.|
In both of these cases, where the records comprising the series, group or class were created over an extended period of time, records will continually become open to public access as they, or the trigger events, become more than X years old.
The age of relevant people at the time records were created should be taken into account.
The following are generally not suitable ways of formulating closure periods:
|Records created after a specified year||This is not suitable because the length of time the records will have been closed will increase as time passes. This is inconsistent with the principle that the sensitivity justifying closure beyond 30 years diminishes with time. The X years formula should be used instead.|
|Indefinitely or permanently||ClosingState records to public access indefinitely can be justified only in the rarest of cases, such as records containing information that would disclose secret or sacred Indigenous tradition. Otherwise it is inconsistent with the principle that the sensitivity justifying closure beyond 30 years diminishes with time. In the vast majority of cases, such sensitivity eventually diminishes to the point where it no longer outweighs the presumption and other considerations in favour of public access, even if this is after a very long time.Records should not be closed indefinitely to avoid determining a suitable risk-based, finite closure period.|
|Ongoing||Records remain closed while this CPA direction is in force. This may be appropriate if a further passage of time is needed to understand the effects of sensitive information in the records and, therefore, how long they should be closed. It should not be used to avoid determining a suitable risk-based, finite closure period.|
Examples of closure periods for sensitive records can be found in the next chapter and on the register of access directions maintained on State Records' website.
Access directions must be given to State Records in an approved form (s. 55(1)).
A public office must give reasons for a CPA direction if requested by State Records or if requested by a person who made an application for an OPA direction under s. 54 (s. 55(6)).
State Records is required to keep a publicly accessible Register of access directions
State Records can request a public office to have an access direction reviewed by the Minister responsible for the public office (s. 55A). The review has to be finalised within 3 months and the public office must comply with the Minister's direction within 14 days.
The State, agencies of the State and access providers are indemnified against actions for breach of confidence or defamation as a result of access authorised under the Act (s. 62).
This provision is designed to protect public offices and their staff in relation to actions performed in good faith or in accordance with the risk-based approach prescribed by the Act. 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 records in the relevant series, class or group.