Introduction
I should like to begin by telling you a brief story. The
Commonwealth Archives Act was proclaimed in June 1984. One of the
first public access decisions we had to make under the new Act related
to the records of the Royal Commission on Espionage – the Petrov
Royal Commission – which by coincidence reached the age of 30
years just as the Act came into effect. Among these records was the
notorious Document J, which included some fairly racy reading even
after 30 years. Given that Document J was clearly going to hit the
headlines, whether it was released or not, Cabinet set up a
sub-committee consisting of Gareth Evans, Lionel Bowen and Mick Young
to examine it. The Director-General of Australian Archives and I
appeared before the sub-committee and put to them the pros and cons of
releasing Document J in relation to the ‘unreasonable disclosure
of personal affairs’ exemption provision in the new Act. We then
withdrew and left them to it. Ten minutes later Mick Young put his
head round the door of the Cabinet Room and said "The sex stays
in!". This was the first Cabinet decision made under the
Commonwealth Archives Act.
There are two morals from this story. The first is that whatever
public access legislation you may have the human factor remains
crucial. The second is that if human beings had not discovered sex,
public access legislation would be much easier.
However as we are clearly, for better or for worse, stuck with the
sex we shall have to do the best we can with the legislation.
Public access legislation for government records has developed from
two different directions. Firstly it has grown through the legal
codification of what began as administrative practices laying down
basic rules as to what archival records could be accessed by members
of the public. Generally these archival regimes have been confined to
records which have reached the age of at least 30 years. They vary
widely in approach and in the sorts of rights they confer and some
major jurisdictions still have no effective archival access
legislation at all.
Meanwhile from the front end of the recordkeeping process we have
the Freedom of Information regimes. These have generally applied only
to quite recent records. For example the Commonwealth FOI Act
initially applied only to records created after the legislation came
into effect, although it was later extended to records up to five
years old. The only exception is for records relating to the personal
affairs of the applicant, to which there is an indefinitely
retrospective right of access. The Freedom of Information regimes have
tended to have stronger appeal provisions than the archival regimes.
They have also tended to have more block exemptions from public
access, particularly in relation to Cabinet records and internal
working documents, and to be subject to more formidable charging
regimes.
In order to open up discussion on possible archival access regimes
for the ACT I though it would be helpful if I looked at some of the
existing regimes in Australia. I do realise that there is no more
potent cure for insomnia than a lecture on comparative legislation. I
have therefore done my best to avoid mentioning individual sections of
Acts and tried to concentrate on what the legislation has actually
sought to achieve. In self defence I should also note that any attempt
to summarise legislation involves some degree of over simplification.
The Commonwealth Archives Act 1983
The origins of what is now the National Archives of Australia go
back to the appointment of Ian Maclean as Archives Officer at the
National Library in 1944. The immediate impetus for the appointment
was the need to ensure the survival of valuable records relating to
the War, but the Commonwealth Archives Office developed after the War
into an agency with general management responsibility for the
Commonwealth’s older records. In the 1950s and 1960s this
responsibility was focussed mainly on establishing an accountable and
consistent records disposal regime and in providing repositories in
each State and Territory for the storage of Commonwealth records which
were considered worthy of permanent retention, or which were required
to be retained for some further period of time for administrative
purposes. Public access was at first a fairly minor aspect of the
Commonwealth Archives’ operations because the Commonwealth
Government adhered to the British system under which all records were
withheld from public access until they were 50 years old. This meant
that in theory nearly all Commonwealth records were withheld from
researchers. In practice some departments would permit some
researchers to see some records, if they liked the look of both the
researchers and the records. Like all permissive access systems this
tended towards inequity and confusion.
In 1970 the Commonwealth Government followed the lead of the British
Government and introduced a 30 year public access rule. It also set
out six categories of records which might be withheld from public
access beyond the age of 30 years:
This fairly mixed and unspecific range of sensitivity categories
drew heavily on those used in the United Kingdom. However as there was
no appeal system they could not be put to the test, which from the
Commonwealth’s viewpoint was probably just as well. The lawyers
would have had a field day trying to define ‘exceptionally
sensitive’.
The introduction of the 30 year rule opened up Commonwealth records
to a significant number of researchers for the first time. However the
very general exemption categories and the lack of an appeal system
meant that many records more than 30 years old continued to be
withheld from public access, either because the relevant department
thought they remained sensitive or because it just did not get round
to making a decision about them. If records were not released the only
remedies for members of the public were to write to the papers or
complain to the Minister.
The Government announced in 1974 that there was to be a Commonwealth
Archives Act but it took 10 years for it to be drafted, enacted and
proclaimed. Part of the delay was due to the fact that the drafting of
the Archives Bill became entangled with that of the Freedom of
Information Bill. It was understandable that the public access
provisions of the two Bills should be aligned as far as possible,
especially as they formed part of a comprehensive Commonwealth
administrative law package which included also the Administrative
Appeals Tribunal Act and the Administrative
Decisions (Judicial Review) Act. However the effect of imposing
what is essentially a Freedom of Information access regime on an
archival records management regime had some interesting and unforeseen
consequences, some of which we are still wrestling with to this day.
It is interesting to speculate that if the Commonwealth archives
legislation had been developed even a few years sooner in the pre FOI
era its access provisions might have been considerably simpler. The
exemption categories would have been set out in plainer English and
probably tended more towards specific subjects, while appeals would
have been handled by some group of Eminent Persons who might or might
not have had the power to actually overturn decisions.
However speculation is idle. We got a Freedom of Information regime
with all of the bells and some of the whistles and that is what I am
here to talk about
The core of this regime is the requirement that the Director-General
of Archives shall cause all records more than 30 years old, other than
exempt records, to be made available for public access. The
Archives
Act thus differs from the Freedom of
Information Act in requiring the Archives to proactively bring
about the release of records, rather than merely wait until someone
asks to see them. The Archives Act also differs from FOI in
centralising the access application process on the Archives, rather
than directing applications to whichever government agency has
functional responsibility for the records sought. The logic behind
this provision is that after 30 years the records should be in the
Archives’ custody and identifiable through their finding aids.
However the Archives is required to consult with each Minister as to
how access decisions relating to records created by agencies in their
portfolios are to be made. This has proved to be an administratively
burdensome task for the Archives, particularly because of the
frequency of administrative change in the Commonwealth. In the great
majority of cases agencies have been content to leave access decision
making with the Archives, but Cabinet Office and most of the agencies
in the security, defence and international relations communities have
chosen to make their own access decisions on all or some of their
records.
The simple statement that all Commonwealth records should be
publicly available after 30 years unless there is specific reason to
exempt them is dwarfed by the following sections of the Act which set
out a formidable array of grounds on which records can be exempted and
the mechanisms by which these exemptions can be challenged. A cynic
might suggest that this is what happens when you leave the writing of
archival legislation to lawyers. The lawyers would no doubt respond
that it is necessary to legislate for every eventuality, but the
result is fairly intimidating for the lay person.
Ironically there is in fact a quite simple and logical thread
running through the maze of provisions and this has delivered an
access regime which has worked fairly effectively in the Commonwealth
context. If you start with the basic 30 year public access obligation
in s31, navigate the array of exemption categories in s33, submit a
written application and receive a statement of reasons in support of
any exemptions under s40, seek an internal reconsideration of those
exemptions under s42 and then take the Archives to the Administrative
Appeals Tribunal under s43 you are well on the way to getting a
result. In fact the great majority of users of the National Archives
get a result without ever going beyond s31 because the material they
want has already been released or can be assessed immediately as
suitable for release.
The exemption provisions are the key to any public access regime.
There is no magic age at which government records in any jurisdiction
suddenly become suitable for public release in their entirety. All
jurisdictions have tried to establish some sort of balance between the
desirability of releasing records as soon as possible and the fact
that, in general terms, the sooner you release records the higher the
proportion of records which will raise some sort of sensitivity issue.
Sensitivities are of course fairly subjective things and if you look
at archival jurisdictions around the world you find that different
people focus on different sensitivities and withhold the records in
which those sensitivities occur for varying lengths of time. But there
is an underlying eternal truth that the earlier the general release
date the more resources you are going to have to devote to identifying
potential sensitivities and the more block exemptions from public
access you will include in your archival regime.
The evolution of the access provisions of the Commonwealth Archives
Act illustrates this point. The Commonwealth first attempted a written
codification of exemption categories in 1966 and these were developed
further in the 1970 Cabinet
decision which introduced the 30 year rule. However the parallel
development of the access provisions of the Archives and FOI Acts in
the 1970s resulted in these traditional archival ‘plain English’
categories being replaced by the FOI ‘legal test’ exemption
categories, although if you look hard you can discern some continuity
between the former and the latter.
The first published draft of the Commonwealth Archives Bill, which
was released in 1978, included a formidable array of exemption
categories taken from the FOI Bill. Some of these were clearly
justifiable in the light of experience already gained under the 30
year rule. These included:
Others were longer shots after 30 years, for example:
In addition the 1978 Bill totally excluded the records of the
Governor-General, the Executive Council, the Cabinet, the Parliament
and the Commonwealth Courts from the public access provisions.
The Senate committee which considered the legislation in 1978-79
took the view that there were far too many exemption categories for
legislation which applied only to 30 year old records and waged war
against them with some success. They succeeded in getting rid of the
Commonwealth-State relations exemption, which was downgraded to an
obligation to consult where appropriate. The exemption for records
affected by secrecy provisions in other legislation was confined to
taxation records, which means that in general the archives legislation
overrides secrecy provisions after 30 years unless these are
specifically preserved. The official records of the Governor-General
and the records of the Executive Council and the Cabinet were brought
into the legislation, but the records of the Parliament and the Courts
remained outside it unless they were specifically regulated in. This
was eventually done in modified form for the records of the
Parliament, but not for Court records.
Even with these changes the Archives Act remains fairly generously
provided with exemption categories.
The Senate failed in its attempt to remove the provision whereby
Ministers can effectively short circuit the appeal process in relation
to security, defence, international relations and foreign government
information matters by issuing a certificate confirming that a record
is an exempt record. However it did achieve the addition of a
provision whereby the Administrative
Appeals Tribunal can review and, if it sees fit, oppose the
grounds for the issue of such certificates, although it cannot
overturn them.
The Senate questioned the need for the public access provisions of
the Act to be confined to records more than 30 years old. The
selection of 30 years was based partly on the fact that those
countries with which Australia exchanged most information also
operated some form of 30 year rule and partly on the theory that 30
years gave sinners sufficient time to distance themselves from their
sins. In the end Senators accepted the 30 year rule, partly because
there was no strong opposition to it and partly because they
anticipated that the accelerated release provisions of the Bill would
soon render the 30 year rule obsolete. Their vision was that the FOI
and Archives Acts would combine to form a seamless web of access to
Commonwealth records on a large scale.
How Has the Commonwealth Archives Act Operated
in Practice?
The Commonwealth Archives Act has now been in force for almost 15
years. Judged by the very substantial increase in the public use of
Commonwealth archival records over that period its access provisions
have been successful. However when you look at the way in which some
of its provisions have operated the situation is rather more complex.
In some ways it is surprising that such detailed legislation has
imposed itself relatively lightly on traditional archival methods of
doing business. Despite the array of exemption categories only a very
small proportion of records have been subject to exemption and these
have fallen predominantly into the traditionally sensitive areas of
security, defence and personal affairs. Indeed it is interesting to
see how some of the sensitivity tests applied to these records prior
to the enactment of the legislation have been adapted to serve the FOI
type exemption categories in the Act. It is also worth noting that the
majority of the exemption categories in the legislation have received
little or no use.
This adaptation process has been evident particularly in the
interpretation of the ‘unreasonable disclosure of personal
affairs’ exemption. Personal information of varying degrees of
sensitivity occurs in every archival jurisdiction. Much of it is found
in blocks of individual case files dealing with issues like health,
welfare, employment and housing. Accessibility decisions about such
records – to the extent that they actually survive to the age of
30 years – can often be made in a fairly summary way. But
personal information also turns up widely and unpredictably in general
correspondence and administrative records. The challenge for
archivists has been to establish simple and consistent criteria for
the identification of personal information which even after 30 years
could reasonably be expected to affect the subject adversely if it was
released.
Personal sensitivity is a difficult area in which to make consistent
decisions. It is a subjective concept which can vary substantially
according to context and to the personality and background of the
beholder. The archival decision maker is conscious on one hand of the
strength of community feeling on privacy protection and on the other
hand of the desirability of maximising the release of records. The
more potential sensitivities you seek out the higher the cost of
public accessibility. The archivist is conscious too that even if some
material of possibly marginal sensitivity is released it is very
unlikely to be used in a way that would adversely affect the subject.
I think it is fair to say that the Commonwealth has gradually moved
to greater openness on personal information issues during the 15 years
that the Act has been in force, but a substantial number of personal
affairs exemptions are still applied.
Another area in which there has had to be a measure of practical
reconciliation between FOI principles and archival realities is the
access appeal process. The appeal provisions of the Archives act are
essentially those of the FOI Act. They operate not just at the level
of the individual document, but in some cases at the level of
individual words or sentences. I am not stating this as a criticism.
If appeal provisions are to be effective they must give the applicant
an opportunity to fight all the way. But the appeal provisions do
raise some practical issues in the archival context where records are
measured in shelf kilometres.
One example of this is the requirement to provide written statements
of reasons in support of any exemptions. Such statements are essential
to the appeal process because they assist the applicant to decide
whether or not to challenge the exemptions claimed. But they do raise
practical problems for the archivist. One problem is the sheer number
of statements which have to be produced. In 1997-98 National Archives
made access decisions on nearly 138,000 records. Only about 1,600 of
these were wholly or partially affected by exemptions, but even this
number represents a lot of statements.
A second problem is that it is often difficult to explain an
exemption without revealing what is being exempted. There is little
point in giving an applicant a statement that a record has been
withheld because it reveals his father was a spy. The solution adopted
has been to use fairly brief and standardised statements of reasons
for decisions on original applications and internal reconsiderations
and to then go into more detail if the issue goes to the AAT.
AAT hearings have themselves required a measure of mediation between
FOI principles and archival realities. Only a very small proportion of
exemption decisions under the Archives Act have ever come before the
AAT. This suggests that in most areas, and in particular personal
sensitivity, the need for certain exemptions has come to be accepted
by users of Commonwealth records. The downside to this is that most of
the exemption categories in the Act still have little or no AAT case
law to assist the Archives’ interpretation of their use.
Appeals to the AAT under the Archives Act have been concerned
predominantly with security and intelligence records, reflecting both
the substantial public interest in these records and the unusually
large number of exemptions claimed for them. Some of these appeals
have involved several thousand documents each and at times the sheer
volume of material to be assessed in detail has proved to be a
substantial resource burden. However it has also had the positive
effect of encouraging all parties to try to streamline the process, in
particular by the greater use of mediation.
Archival Access Provisions in Other Australian
Jurisdictions
Archival access regimes in the State and Territory jurisdictions
vary substantially in approach. Two States have recently enacted new
archival legislation. The NSW NSW State Records Act 1998 requires State
records to be made available for public access at the age of 30 years,
but State government agencies can issue directions for the closure of
records beyond that age. Such extended closure may be challenged under
the FOI Act. The South Australian State Records Act 1998 provides for
the release of State records, other than those containing medical
information, at the age of 25 years. However the State Records
Commission may declare a record a Restricted Access Archive, which
means that it can be withheld from public access until the age of 75
years. If the record is still being withheld at the age of 75 years
the Commission must either release it or declare it to be an
Exceptionally Sensitive Archive. The withholding of Restricted Access
Archives can be challenged under the FOI Act.
Queensland and Western Australia have been considering new archival
legislation from some years, but this has yet to be enacted. At
present the general public access rule is 30 years after ‘last
dealing with the record’ in Queensland and 30 years after
creation in Western Australia. In Victoria records must be transferred
to the Public Record Office for public access at the age of 25 year.
However they may be withheld from public access for further 30 years
by ministerial decision. The Victorian FOI Act applies only to records
created from 1977.
In Tasmania records are publicly available from the age of 25 years
unless they fall into a series of exemption categories similar to
those in the Commonwealth Act. As the Tasmanian FOI Act applies only
to records created from 1987 such exemptions cannot be challenged.
The Northern Territory has no archival legislation.
The ALRC Review of the Commonwealth Archives
Act
Having outlined the present access regimes in the various Australian
jurisdictions I should now like to look at some of the access issues
in the review of the Commonwealth Archives Act undertaken by the
Australian Law Reform Commission between 1996 and 1998. The full text
of the Commission’s report is available both in printed form and
on the Commission’s web
site. Presumably on the principle that poachers make the best
gamekeepers I was seconded to the ALRC review as Team Leader, so that
I had the privilege of seeing the process from the inside.
In all the Commission’s deliberations first prize for sheer
intensity of debate would have to go to the recordkeeping issues which
flowed from the fact that over the years Commonwealth agencies had
twice lost the President of the Commission’s personnel file.
Unfortunately that is a story for another day. However debate on
access issues would certainly rate an honourable mention.
There are several reasons for this. Clearly an honest and effective
public access regime is central to any worthwhile archives
legislation. I use the word ‘honest’ advisedly because it is
all too easy to devise access regimes which look good from a distance
but which fail when the going gets tough. Fundamental to an honest
scheme is an honest decision by the jurisdiction concerned as to just
how much accessibility it is prepared to have. This is a decision that
relates to resources as well as to philosophy. An access regime should
not sink to the lowest common denominator of penny-pinching and
secrecy amongst agencies in its jurisdiction, but equally there is a
limit to how far the access regime can drive key decision makers
beyond where they want to be.
Having decided in principle the parameters of your access regime it
should be framed in as transparent a way as possible. There is no
place for regimes which appear to promise the Earth until you read the
fine print and realise that the combination of exemptions and user
charges will leave you with not much more than the newspaper
clippings. Such a caveat may seem self evident, but you can get into a
position in which the archivists suspect the lawyers are intoxicated
with their own vision and the lawyers are convinced the archivists are
conservative and pedestrian.
In all our deliberations on access we were very conscious that our
task was not merely to do a cosmetic job on a dinosaur. Because of the
30 year time warp nearly all the practical experience of the present
access regime comes from dealings with paper records created between
the 1940s and the 1960s. These records are a long way away from the
electronic recordkeeping systems which will replace paper systems with
increasing rapidity over the next decade. While records of all formats
have certain basic characteristics of structure and purpose electronic
records raise a range of specific access issues. They offer the
possibility of building an effective access regime into the system at
design stage, but if this opportunity is neglected we are storing up
trouble for the future. It is true that we have generally dealt with
access issues relating to paper records retrospectively, but in some
ways paper records are more tolerant of retrospective remedial action
than electronic records.
It is likely that the dramatic improvement in recordkeeping
technology will force us to rethink the way in which we manage access.
Hitherto public access demands have focussed on only a small
proportion of the equally small proportion of paper records which
survive to the age of 30 years. This is because the paper records are
voluminous, difficult to find your away around in and often a long
distance away from where you live. The combination of electronic
recordkeeping systems and the Internet will radically change this
situation. Firstly it will be technically feasible – though not
necessarily administratively desirable – to retain every
Commonwealth record created, instead of merely the 2% or 5% or
whatever % that we currently retain. Secondly the Internet offers the
technology for everyone in the world to browse through the
recordkeeping systems of Commonwealth agencies from the comfort of
their living rooms. Not every Commonwealth agency would be prepared to
let this happen – the Defence Intelligence Organisation might be
one example – but the very fact that the potential is there is
going to affect the way we do things. In particular access decisions
will have to be made for a far larger range of records.
To recognise that for electronic records accessibility should be
addressed as part of system design rather than as retrospective spring
cleaning does not mean that we are going to be able to largely
automate the access process in the near future. We are going to have
to go on living with paper records for a long time and the access
regime will need to cope with all record formats. We therefore tried
to articulate the basic objectives and principles which should
underlie any access regime.
The Commission began by stating two principles. Firstly:
‘The fundamental premise from which any consideration of
access rights should flow is that the records of government are
created and held in trust for the people. It necessarily follows
that any limitation or qualification that the legislation places on
the right of access by individuals to the records of their
government must be justified on carefully and narrowly defined
grounds that serve the interests of the nation as a whole.’
Secondly:
‘An access regime must be able to deliver an effective right
of access to all records, regardless of the medium in which they are
contained. In some cases there will be practical differences in the
way access is delivered to the public, with technology providing
more effective systems to assist the open access objective. These
systems may also enable access decisions to be made much earlier in
the life of a record. However, the basic right to apply for and gain
access should be common to all records, regardless of age or medium.’
Having articulated these lofty principles we looked for a framework
in which to enshrine them. The first issue was whether the
Commonwealth would be served best by a single Access to Information
Act which merged the FOI Act and the access provisions of the Archives
Act and closed the present quite illogical gap between where the
Archives Act’s coverage ends in 1968 and the FOI Act’s
coverage begins in 1977. There are clearly attractions to such an
approach, in particular the creation of a more streamlined and visible
piece of legislation that might give information access a higher place
on the political and public agenda. However there are also downsides.
The most significant of these is that the FOI Act is a more
restrictive piece of legislation. Major groups of records are either
excluded from it altogether or subject to absolute exemption. It has
more exemption categories than the Archives Act, such as that relating
to internal working documents. It is also subject to user charges
which in some cases can be substantial. Clearly a regime applying to
current records must be somewhat more restrictive than one applying to
30 year old records, but if the two regimes are merged there is a
danger that the lowest common denominator of accessibility will come
to prevail.
We looked at the possibility of overcoming this problem by
introducing a tiered access regime, whereby exclusions and exemptions
gradually ceased to have effect as records reached particular age
cutoffs. This was an improvement on a single system, but trying to
devise cutoffs for each class of exemption threatened to produce a
system more complex than we already had. There was also an
administrative problem with a single act in that the access provisions
of the Archives Act are administered centrally by the National
Archives, while FOI is the responsibility of individual agencies.
Submissions to the Review generally opposed the devolution of the
administration of the Archives Act.
We therefore recommended that the two Acts remain separate but that
the FOI Act be extended backwards to meet the Archives Act at the
start of the open access period.
This led to the question of what the open access period should be.
As I mentioned earlier the 30 year was devised originally more as a
broad consensus on a number of issues rather than because there was
anything particularly magic about the number 30 and we rather ended up
in the same place this time around. Other countries still tend to
hover about the 30 mark and although some of the submissions suggested
20 or 25 years there was not a strong public push for a significant
reduction. Other factors included a concern that a reduced closed
period would increase administrative costs and some apprehension that
it might lead to a split in the ranks, with the more sensitive records
getting a longer closed period as a tradeoff for less sensitive
records getting a shorter one.
The Commission placed two significant conditions on its endorsement
of a continuation of the 30 year rule. Firstly it emphasised that the
30 year rule was a minimum standard only, stating that:
‘The Commission cannot overemphasise the importance to its
thinking of the relationship between its recommendations for the
retention of the 30 year rule and … the discretionary early
release of records in advance of that age. While the maintenance of
the 30 year rule is justified … a situation in which the vast
majority of records were not released before that age could neither
be justified not tolerated. Discretionary early release must become
a normal and central part of recordkeeping in the future, not an
island of exception.’
The only problem with discretionary release is that by definition
you can’t enforce it. At one stage we were designing something
that would have probably justified the description of ‘mandatory
discretionary release’. In the end we recommended that the Act
require agencies to make records available to the public at the
earliest practicable time and that it require the Archives to issue
guidelines for the creation and implementation of discretionary
release schemes.
Secondly the Commission sought to emphasise that release at 30 years
meant release at 30 years, and not merely that at some time after 30
years you would consider releasing a record if anyone actually asked
to see it. Accordingly it recommended that:
(1) All records of archival value [which is not a definition I
propose to grapple with here] which enter the open access period
after the new legislation commences must have had their public
access status determined prior to reaching the age of 30 years.
(2) National Archives should be required, over a 10 year period, to
assess the public access status of all records of archival value
more than 30 year old which were in its custody at the time the new
legislation commences.
The existing exemption categories survived the Commission’s
scrutiny fairly well. The only categories recommended to be wholly
deleted were legal professional privilege and the exemption relating
specifically to taxation records, although any information exempted
under the latter might also be picked up under the personal or
business affairs exemptions. The Commission recommended the addition
of an exemption category covering material that under Indigenous
tradition would be regarded as confidential or subject to disclosure
restrictions.
In its Draft Recommendations
Paper the Commission stirred up something of a hornet’s
nest by recommending that every exemption be subject to a public
interest test and also a requirement to demonstrate that actual harm,
rather than merely apprehended harm, would result from the release of
the material concerned. In view of concerns that this would place the
barrier for exemptions unrealistically high the Commission recommended
instead that the legislation include two specific directions for those
assessing exemption claims:
(1) Due regard must be had to the legislative objective that
records are to be made available unless there are compelling reasons
for withholding them.
(2) Decisions to exempt records must be made on contemporary
evidence and that this evidence must be expressly identified in the
statement of reasons.
The Commission endorsed the present access review regime based on
internal reconsideration of the exemptions as the first stage and
review by the Administrative Appeals Tribunal as the second stage.
Submissions predominantly endorsed the need for an effective review
mechanism and the AAT system has worked well in the archival context.
It is any case central to the whole Commonwealth administrative law
structure and there would have needed to be very strong reasons to
recommend taking archives out of it.
The Commission did recommend one significant change to the access
review regime. At present National Archives is responsible for all
internal reconsideration and AAT activity under the Archives Act, even
if the original decision to exempt the record was made by an agency
other than the Archives. This means that the Archives might be called
upon to defend a decision in which it had had not made and might in
fact disagree with. The Commission therefore recommended that the
agency which made the original decision to exempt records should be
required to retain responsibility for it through the appeal process.
Finally we looked at the difficult question of public user charges.
At present there are no access charges under the Archives Act other
than those for copying records and the fees which apply to any
application to the AAT. The Commission considered the introduction of
charges for applications for access to records but decided that this
would be unjust given that many researchers are forced to formally
apply for access to records more than 30 years old because the
Commonwealth has not proactively determined the access status of the
records. However the Commission did recommend the introduction of a
public user charge of $5 per day or $100 per year for access to the
Archives’ services.
Possible Access Strategies for the Act
From what I have said over the last half hour you will have probably
concluded that there is no single magic solution to issues of
accessing government records. Nobody has yet invented a system that
combines maximum accessibility with minimum administrative cost.
Nevertheless I think the various Australian jurisdictions have
between them built up a substantial body of experience about accessing
records over the past two decades and provided a range of both shining
examples and awful warnings. In the hope of encouraging you all to
design an access regime for the ACT before you qualify for lunch I am
going to stick my neck out and suggest some of the directions which
you might take.
My starting point is that you need some sort of public access
legislation which deals appropriately with archival records. Some
State and Territory jurisdictions have operated or still operate
without legislation or with legislation that is virtually toothless.
Many records still become available to researchers in those
jurisdictions around the age of 30 years, but many do not. Any access
regime which has to depend on the voluntary provision of resources and
goodwill by governments and bureaucracies is built on shaky ground,
particularly in an age when budgets are tight and staff and
administrative structures change rapidly.
Nor would I recommend the United Kingdom system where instead of
general access to information legislation specific access rights are
written into legislation dealing with the administration of specific
government functions. This has the potential to surround you with bits
of legislation without giving you access to any of the records you
actually want to see.
Next I repeat the point I made earlier about the need to first of
all decide how much accessibility you want and then to legislate for
it honestly. If you want a state of the art access regime opening up
almost all ACT government records the day after they are created that
is fine. But you will have to wear the resource costs and public
washing of dirty linen that will go with it. If you are not prepared
to go so far then decide before you legislate, otherwise you will face
a humiliating public retreat as you tinker with the legislation and
rack up the user charges to discourage the eager customers.
Your starting point should probably be to analyse who is likely to
use ACT Government records and how their needs can be met most
effectively. I have always suspected that one of the weaknesses of the
Commonwealth FOI Act is that, while it was driven by lofty ideals, not
enough thought was given to how it would operate in practice. It has
certainly enabled many people to access records about their own
affairs. But it is less use to people who would like to undertake
extensive research on contentious recent issues, particularly because
of the level of user charges. You might argue that busybodies like
these do not deserve records, but they are the people who are the
spearhead of democracy, which is what information access is supposed
to be about.
You thus need to identify potential user groups for ACT government
records to see whether a division between current and archival users
is valid and if not to determine how each group can be given effective
access to the records they want as quickly as possible.
You also face the complexity of running what is both a State and a
municipal government. Municipal governments have traditionally made a
range of transaction records such as building files available to the
public, often subject to a standard fee. Such fees are reasonable
enough for an individual who wants to access one file every 10 years,
but they would put someone undertaking substantial historical research
on housing right out of business. Do you waive the fee for researchers
and risk all the householders pretending to be researchers in order to
dodge the fee or do you quote bulk rates for researchers?
Having attempted to identify your potential user base you must make
the fundamental decision as to whether you build your archival system
into the existing ACT Freedom of Information Act or enact separate
archival legislation. As I mentioned earlier we decided that in the
Commonwealth context, and in view of the fact that we were maintaining
the 30 year rule, it was simpler to retain separate legislation. In
the ACT you have a much smaller and simpler structure of government
and you have an FOI Act already in place. The arguments for dealing
with access to all records in the same legislation regardless of age
are therefore stronger, although your decision will be determined by
where you are going on archives legislation generally. If you are
looking at a comprehensive records management act and you envisage
your archival access regime as being clearly distinct from that
applied to current records you may be better off including the
archival access provisions in the records management legislation.
In the ACT context you might well consider a tiered access regime.
Outside areas such as personal case files and commercial in confidence
records you might be able to make many records available for public
access when they are only a few years old. Each of your exemption
categories – and I am leaving it to you to decide what those
categories might be – might be linked to a specific age of
release.
However you legislate for archival access you need an effective
appeal mechanism. As in the Commonwealth you have an Administrative
Appeals Tribunal ready made and this is presumably the way to go.
You will also need to address decision making issues. Should
decisions about the release of records be made by whatever agency has
responsibility for the relevant function, or should they be
centralised, for example, on the Attorney-General’s Department or
Chief Minister’s Department? However you do it you are going to
need to provide training and guidance so that decisions are as open
and consistent as possible. Otherwise you will waste a lot of time and
money fighting unwinnable appeal cases.
Finally a brief homily on records management. Your access regime is
going to operate much more smoothly if you create and manage records
in an orderly and accountable way and as far as possible build access
decisions into them as you go along. In particular you need to get rid
of valueless records before they get caught up in the access process.