Release of records containing personal information – Fact sheet 15
The National Archives holds approximately 40 million records, dating mainly from 1901, created or received by the Commonwealth government. Many of these records contain information about identified individuals, including members of the Australian Defence Force, migrants, and subjects of investigation by the security services.
The Archives Act 1983 provides a right of public access to records of the Commonwealth government in the open access period held by the Archives or in the custody of agencies. Section 31 of the Act requires the National Archives of Australia to release open access period records for public access unless they contain information that falls into one of the exemption categories defined at section 33 of the Act.
Following amendments to the Archives Act approved by Parliament in May 2010, the open access period will begin after 20 years instead of the previous 30 years. This change will be phased in over a 10-year period from 1 January 2011.
What records are available for release?
The Archives Act applies to all Commonwealth government records except those of the Courts, some records of the Parliament and governors-general, and material held by other national collecting institutions, such as the National Library of Australia. There is a right of access to all other Commonwealth records in the open access period, including those held by government agencies.
Before the National Archives releases records for public access they are examined by specialist Archives staff to ensure they do not contain information requiring exemption. In making decisions about access, the National Archives is guided by relevant case law, legal opinion, the views of the agency controlling the records, and community attitudes. When the National Archives examines records containing information about identified individuals, we carefully balance the right of public access with the responsibility to protect personal information where its disclosure would involve an unreasonable invasion of a person’s privacy.
Who can obtain open access period records?
The public have a general right of access to open period Commonwealth records under the Archives Act.
The identity of the applicant, relationship to the person documented in the record, or reasons for requesting access are not relevant to the decision to release or withhold a record from public access. Once the record has been examined and any exemptions have been applied, the record is available to any person who wishes to view it.
Are subjects of records consulted before release?
While the Freedom of Information Act requires agencies to consult individuals named in records before release, the Archives Act contains no such provision. This recognises the difference in age of records each Act deals with and the very considerable practical difficulties that such a provision would entail. After more than 20 years it is unlikely that the Archives would be able to contact the large numbers of individuals about whom information is released each year, so in the interests of consistency and equity, the Archives does not seek individual views.
How does the National Archives provide access to records?
The National Archives provides access to records through its reading rooms, copying service or via its website. Because the Act does not prescribe delivery channels, the National Archives is able to exercise some discretion about what it makes available online. In certain circumstances online access will be withdrawn if the subject of a record, or an immediate relative, objects to the record being online. Where online access is withdrawn, records continue to be available through the National Archives’ reading rooms and copying service in accordance with the Archives Act 1983.
Relationship of the Privacy Act 1988 to the Archives Act 1983
The National Archives has a key interest and major role in the area of information privacy. The Archives Act contains provisions which safeguard the privacy of individuals. The exemption of open period Commonwealth records from the coverage of the Privacy Act recognises that the Archives Act provides adequate safeguards to protect the privacy of individuals.
What if the subject of a record objects to the release of information?
The Archives Act does not provide a formal avenue of appeal against the release of information. However, the Archives invites people who are concerned about the release of records to email us at publicrelease@naa.gov.au.
The National Archives will consider these concerns and may review the decision to release a record and where the original decision is inconsistent with the Act, modify it. Where a digital copy of the record is available on the Archives’ website, that digital copy may be removed if the subject of the record advises the Archives that its availability online causes distress. However, any publicly released record would continue to be available through the Archives’ reading rooms and copying service.
Can the National Archives control the use of records it releases for public access?
The Archives has no authority to control the use of records it releases and does not seek to assess the motives or integrity of individuals who request access to records. The Act grants a general right of public access to open access period Commonwealth records.
Most users of the Archives records are the subject of the record or family members and can be relied upon to handle the information they obtain with sensitivity. But it is possible that information may be used in a way that is misleading or even malicious. The Archives Act does not provide a remedy for such an occurrence beyond leaving the individual who published the information (but not the Archives) open to an action for defamation.
