Submission from the Australian Press Council to the NSW Attorney General's Department on possible guidelines for access to state records under part 6 of the State Records Act 1998.

1. Executive Summary

The Press Council endorses full access to state records after thirty years, except in limited cases where the records expose personal, private information of individuals, who are not, or were not, public figures; or the records disclose customary law and traditions of Indigenous communities against their will. Even in such cases the Council proposes a very strict assessment process and an immediate appeals procedure.

2. Submission

The Act creates a presumption in favour of public access to records which are more than 30 years old.

Generally the Council would endorse full access to such records after such an elapse of time. Such records will not normally be of great moment to the press which is generally concerned with more immediate events than those of 30 years previously, but such access will enable historians, genealogists and others reasonable access to public records to enable the proper understanding of the times from which they arise.

Issues such as commercial and client confidentiality, security and continuing political or administrative sensitivity should not have a great impact on the access to such records after 30 years. After all, most of the principals will have left office (or, indeed, this veil of tears) and the statute of limitations will have passed for any actions. Changes in circumstances will make any advice from 30 years previous either uninteresting or, if of interest, may point to problems that now need to be addressed. (On these matters and other relevant issues, the Council draws attention to the Australian Law Reform Commission's Report #85, Australia's Federal Record [Canberra, 1998], particularly Chapter 20, "Exemption Issues". Sections 20.74 and 20.75, which deal with the question of legal professional privilege, and 20.99 et seq, dealing with Cabinet notebooks, are among parts of this report with direct relevance to the putative guidelines.)

The Council submits that, if there were to be limits on access to public records in the open period, such limits should be restricted to two classes of material

• those records which expose personal, private information of individuals, who are not, or were not, public figures; and
  
  
• material which discloses customary law and traditions of Indigenous communities against their will.

In such cases, the Council would support a process of assessment based on the ALRC recommendations for federal legislation:

• decision makers should take due and proper account of the legislative objective that records in the open period are to be made available unless there are compelling grounds justifying their non-disclosure;
  
  
• decisions to deny access must be based on contemporary evidence and information, and that evidence and information is to be expressly identified in reasons for decisions; and
  
  
• such decisions must be based on real and substantial specifics that demonstrate that access to the records would lead to damage, prejudice or adverse effect.

As an additional point, the Council would also suggest that, when a decision to deny access is made, adequate immediate appeal provisions need to be in place to enable those who want access to the records to lodge their objection to the Administrative Decisions Review Tribunal or a similar tribunal.

3. Supplementary submission

The Council has also suggested that, in each calendar or reporting year, the Attorney-General's Department compile a list of those records to which access under the Act has been denied, together with the reasons for that denial. That compilation could then be published and made available to the public.

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