Archives and other access law

This page examines Archives and other 'access law' . 

It covers -

• introduction to archives regimes
• Australian Archives legislation
• New Zealand
• UK
• EU
• US
• Canada
• international organisations

     Archives regimes

Archives legislation in many instances predates both FOI legislation and the broader notion of FOI, instead deriving from administrative requirements that government agencies preserve records for evidentiary or policy development purposes.

Establishment of recognisably 'modern' archival legislation after the 1960s reflected recognition of the benefits for government from proper 'whole of life cycle' management of documentation and of the interest of scholars and the wider community in records that were no longer actively used by agencies (and were thus stored by those agencies or transferred to archival repositories).

National and state/provincial legislation in most countries establishes archival institutions with particular responsibilities for administration of archival regimes that embrace the creation, identification, maintenance and disposal (including archiving) of public sector records in paper, electronic and other formats.

That legislation generally provides for access to archived records after a specific period (variously 25, 30, 50, 75 or 100 years, depending on jurisdiction and category of record).

Most legislation (and associated enactments under Privacy, Census & Statistics or other law) provides for short-term or permanent exemptions. Typically those exemptions cover matters such as personal information about individuals, information supplied to government on a commercial in confidence basis, judicial proceedings, relations with other governments and national security.

Eric Ketelaar's 2002 'Archival Temples, Archival Prisons: Modes of Power and Protection' commented that

Public and private organizations depend, for their disciplinary and surveillance power, on the creation and maintenance of records. Entire societies may be emprisoned in Foucauldian panopticism, a system of surveillance and power-knowledge, based on and practised by registration, filing, and records. Archives resemble temples as institutions of surveillance and power architecturally, but they also function as such, because the panoptical archive disciplines and controls through knowledge-power. Inside the archives, the rituals, surveillance, and discipline serve to maintain the power of the archives and the archivist. But the archives' power is (or should be) the citizen's power too. The violation of human rights is documented in the archives and the citizen who defends himself appeals to the archives. People value "storage" as a means to keep account of the present for the future. In order to be useable as instruments of empowerment and liberation, archives have to be secured as storage memory serving society's future functional memories.

There is another view in Helen Wood's 'The fetish of the document: an exploration of attitudes towards archives' in New Directions in
Archival Research (Liverpool: Liverpool Uni Centre for Archive Studies 2000) edited by Margaret Procter.

     Australian legislation

In Australia at the national level the Archives Act 1983 and complementary Freedom of Information Act 1982 cover the retention of information by the national bureaucracy and long term access to that info. The Archives Act is administered by the National Archives of Australia (NAA). Apart from an internal review process, appeals against decisions to restrict access under that Act are handled by the Administrative Appeals Tribunal (AAT) and thereafter on points of law to the Federal Court.

The NAA site is a starting point for understanding how the legislation works and what it covers - especially important since many Commonwealth records are disappearing into the ether as agencies rely on information technology rather than dried tree-flakes embellished with ink. 

The recent Australian Law Reform Commission report on the Archives Act provides insights from the perspective of administrative accountability and a national information policy, one of the more unfashionable concepts in Canberra. It was followed by a discussion paper regarding Review of measures designed to protect classified and security sensitive information in the course of investigations and proceedings and the 2004 report on Keeping Secrets: The Protection of Classified and Security Sensitive Information.

The Commonwealth and state/territory archives are online:

Commonwealth National Archives of Australia (NAA) with Archives Act 1983 here

ACT Government Territory Records Office (ACTRO) with the Territory Records Act 2002 here

New South Wales State Records Authority (SRA) with State Records Act 1998 here

State Records South Australia (SRSA) with the State Records Act 1997 here

Queensland State Archives (SA) with the Public Records Act 2002 PDF

Public Record Office Victoria (PRO) with the Public Records Act 1973 here

State Record Office of WA (SRO) with the State Records Act 2000 here

Archives Office of Tasmania (AOT) with the Archives Act 1983 here

Northern Territory Archives Service (NTAS)

     UK

The UK Freedom of Information Act 2000 (FOI) is being progressively introduced, with transitional legislation in May 2001 renaming the Data Protection Tribunal (established under the Data Protection Act 1998) as the Information Tribunal. The Act is overseen by the statutory Information Commissioner, concerned with both the Freedom of Information regime and the Data Protection.

The 2000 enactment extends the 1985 Local Government (Access to Information) Act concerned with documents about the policies and practices of local authority documentation (and which mandated that meetings of local authorities must be open to the public and media).

The FOI Act provides a general right of access to information held by over 70,000 agencies, with response to requests required within 20 working days. Public authorities are also required to publish a number of categories of information about their structures and activities. Appeals are heard by an Information Tribunal in the first instance and thereafter on points of law to the High Court of Justice.

Exemption agencies and categories of information include -

• intelligence agencies
• ministerial communications
• information that relates to policy formulation and investigations
• information regarding "the effective conduct of public affairs"

There is provision for exemption of

• statistical data and other factual information and its analysis, research findings
• scientific assessments
• reports on overseas practice
• cost data and consultants’ studies

Restricytion under a more limited 'prejudice exemption' requires the agency to demonstrate harm to interests that include the economy, defence and crime prevention, international relations, commercial interests and immigration.

A 'public-interest test' provides for withholding of information only when the public interest in maintaining the class or prejudice exemption outweighs the public interest in disclosure.

     EU

Freedominfo provides a case study on access to official documentation in the European Union, dating from the landmark 1993 Code of Access to EU Documents.

For a perspective on citizen access to EU government information we recommend visiting Statewatch's page tracking implementation of Article 255 of the Amsterdam Treaty to "enshrine" a right of access to documents from the Council of the European Union, the European Commission and the European Parliament.

A broader perspective's provided by Alasdair Davidson's 2001 Supranational Governance & the Right to Information: Experience in the EU (PDF).

     US

The 1966 US federal Freedom of Information Act has been amended several times. It covers executive and military departments, government corporations and other entities which perform government functions except for Congress, the courts or the President’s immediate staff (including the National Security Council). In contrast to most FOI legislation the enactment allows any person or organisation, regardless of citizenship or country of origin, to request records held by federal government agencies, which must respond in 20 working days. Appeals or complaints about delays can be addressed to the specific agency or to the federal courts.

Nine categories of exemptions under the Act encompass -

• information protected by other statutes
• national security activity
• business information
• "inter and intra agency memos"
• personal privacy
• law enforcement records
• financial institutions
• oil wells data
• internal agency rules

During 2000, there were 2.235 million FOI requests to federal agencies.

Associated legislation includes the Sunshine Act requiring disclosure of deliberations of multi-agency bodies such as the Federal Communications Commission and the Federal Advisory Committee Act requiring the openness of committees that advise federal agencies or the President.

All US states have enactments regarding access to government records, underpinned in several instances by Information Commissions that review decisions.

Among the extensive literature on US secrecy legislation and policy we recommend Daniel Moynihan's Secrecy: The American Experience (New Haven, Yale Uni Press 1999) and FOI Advocate, an online newsletter covering federaland state developments.

The Torment of Secrecy: The Background & Consequences Of American Security Policies (Chicago: Dee 1996) by sociologist Edward Shils is a classic. The Federation of American Scientists 1998 project on Government Secrecy, covered the CIA's pre-publication review process, cold war documentation, declassification policy, freedom of information, secret government spending, and international relations. 

A Culture Of Secrecy: The Government Versus The People's Right To Know (Lawrence: Uni of Kansas Press 1998) is a useful collection of essays edited by Athan Theoharis. Charles Davis & Sigman Splichal edited the broader Access Denied: Freedom of Information in the Information Age (Ames: Iowa State Uni Press 00).  

The National FOI Coalition (NFOIC) is an alliance of nonprofit state FOI and First Amendment organizations and academic centers.

     Canada

The National Archives of Canada (to form a single institution with the National Library of Canada) 1982 federal Access to Information Act (PDF) in Canada covers federal agencies. Information encompassed by the Act may be embodied in letters, memoranda, reports, maps, plans, drawings, audio recordings, film and video recordings, photographs, microforms and machine-readable records.

The Act provides for access (with exceptions) by Canadian entities to records held by government agencies. Withholding of records encompasses information obtained on a confidential basis from another government or international organisation, that would undermine constitutionial or international affairs, undermine national defence, the deliberations of Cabinet, that would prejudice the enforcement of justice, that features personal information defined by the Privacy Act or that contains trade secrets and other confidential information of third parties.

The Act is overseen by the federal Information Commissioner (IC). an independent ombudsman appointed by Parliament. The Commissioner has strong investigative powers but may not order specific resolution of disputes, instead mediating between government agencies and dissatisfied applicants for access.

All the Canadian provinces have an FOI enactment. Many have a statutory FOI/Information commissioner concerned with oversight and provide enforcement.

     New Zealand

Archives New Zealand (ANZ) administers the Archives Act 1957 here. It centres on the declaration that

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

It is complemented by the Local Government Official Information and Meetings Act 1987 regarding information held by local government agencies.

Under the 1982 Act any New Zealand entity can demand official information held by public bodies, state-owned enterprises and bodies that carry out public functions. The body has no more than 20 days to respond. Agencies have been required in some cases to take down notes of discussions that contributed to government decision making if no documents are available.

Exemptions include information that -

• would harm national security and international relations (eg that provided in confidence by other governments or international organizations)
• is needed for the maintenance of the law and the protection of any person
• would harm the economy of New Zealand or relates to the entering into of trade agreements
• could intrude into personal privacy, commercial secrets, privileged communication and confidences
• could damage public safety and health, economic interests, constitutional conventions and the effective conduct of public affairs, including "the free and frank expression of opinions" by officials and employees.

The decisions of the Ombudsman have limited many of these categories, requiring agencies to justify their decisions in terms of the possible consequences of disclosure. The focus has shifted from withholding information to setting how and when information, especially politically sensitive information, should be released. As noted by the Secretary of the Cabinet, “virtually all written work in the government these days is prepared on the assumption that it will be made public in time…the focus in the current open style of government is on managing the dissemination of official information.” It is common for Cabinet documents and advice to be released.
reviews denials of access. The Ombudsman’s decisions are binding, but there are no sanctions for noncompliance and some agencies have ignored his rulings.

An Information Authority was created under the Act, but the law put a fixed term on its existence. The body was automatically dissolved in 1988 after Parliament failed to amend the Act. The Information Authority conducted audits, reviewed legislation and proposed changes. Some of its functions were transferred to the Legislative Advisory Committee and the Ombudsman.

For New Zealand see Freedom of Information in New Zealand (Auckland: Oxford Uni Press 1992) by Ian Eagles, Michael Taggart & Grant Liddell.

Trudy Peterson's Final Acts: A Guide to Preserving the Records of Truth Commissions (Baltimore: Johns Hopkins Uni Press 2005)

     international organisations

As the above notes suggest, there is no international convention regarding archival preservation/access of information that is binding on all states or on international institutions such as the World Bank, United Nations General assembly, World Trade Organization, World Intellectual Property Organization or ICANN.

Retention of documentation and its release by those organisations is essentially at their discretion.

Some bodies have moved to articulate objectives for the release of documentation or implemented effective access regimes (eg that embrace statements of principle about transparency that are underpinned by mechanisms such as information access centres, catalogues and an avoidance of unnecessary access charges).

They include -

the World Bank | policy here

World Trade Organization | policy here

International Monetary Fund | briefing here

Asian Development Bank | policy here

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