Access Examination Policy – personal, business and professional affairs of a person

Executive Summary

The intent of the Archives Act 1983 (Cth) (the Archives Act) is that all records subject to the Archives Act are to be publicly released unless they contain information that falls within one of the exemption categories in section 33 of the Archives Act.

This is expressed in section 31(1A)(1) which provides that the National Archives, 'must cause' Commonwealth records in the open access period that are in the custody of the Archives or of a Commonwealth institution, other than exempt records, to be made available for public access.

The Archives Act requires the Archives to publicly release Commonwealth records in the open access period. At the same time the National Archives has the obligation to ensure that information that needs continuing protection is not released. It is a matter of balance for staff who hold the appropriate delegation to make decisions on access. The need for balance was clearly articulated by the then Attorney-General the Honourable Gareth Evans in the Archives Bill 1983 (Cth) Second Reading Speech to the Senate, for and on behalf of the Minister for Home Affairs and Environment the Honourable Barry Cohen MP:

"It is expected that under these arrangements the great majority of Commonwealth records more than thirty years old will become available …Inevitably, however, in the interests of personal privacy, good government and security, some exemptions will have to be applied and these will be very similar to those provided under the Freedom of Information legislation. However, it is expected that relatively fewer records will be withheld under Archives legislation because this deals, in the main, with older records."1

With the phased transition from 30 to 20 years for the release of Commonwealth records initiated under amendments to the Archives Act in 20102, the reduction in the open access period places an even greater onus on the National Archives to balance public access rights, openness of Government, privacy, security and national interest.

Purpose

The objective of this Policy is:

  1. to set out the Archives' policy for applying exemptions pursuant to sub-section 33(1)(g) for information relating to the personal affairs of any person;
  2. to set out the Archives' policy for applying exemptions pursuant to sub-section 33(1)(j) for information relating to the business or professional affairs of any person; and
  3. to promote the management and release of Commonwealth records in an efficient, effective, economical and ethical way.3

This Policy represents the culmination of several years of research, consultation, revision and trial in changing the way access examiners deal with the release of information about individuals in accordance with the provisions of the Archives Act.

Scope

This Policy applies to decision makers that have a delegation pursuant to section 8 of the Archives Act to make decisions on section 33 exemptions ('Decision Makers').

It is the Archives’ policy that Decision Makers may apply more than one section 33 exemption to material being examined.

Policy for Section 33(1)(g) Exemptions

Section 33(1)(g) protects personal privacy by providing that a record is exempt if it contains information or material that would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

Decision Makers may exempt information or material pursuant to section 33(1)(g) where:

  1. it includes information or material relating to the personal affairs of any person; and
  2. the Decision Maker determines that the disclosure of the information or material would involve an unreasonable disclosure.

Policy for Section 33(1)(j) Exemptions

Section 33(1)(j) provides that a record is exempt from public access if it contains:

information or matter (other than information or matter referred to in section 33(1)(h)) concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, being information or matter the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs.

Section 33(1)(j) can apply either to people or to organisations and undertakings. This Policy is limited to the application of section 33(1)(j) to the business and professional affairs of individuals.

Section 33(1)(j) protects information relating to the business or professional affairs of a person being information the disclosure of which would or could reasonably be expected to unreasonably affect that person adversely in respect of his or her lawful business or professional affairs.

The National Archives applies a four limb test for the exemption of information or material pursuant to section 33(1)(j):

  1. the information or matter must concern a person in respect of his or her business or professional affairs;
  2. the disclosure of the information or matter would or could be expected to be unreasonable;
  3. the disclosure of the information or matter would or could reasonably be expectedto affect the person in respect of its lawful business or professional affairs; and
  4. that effect on the person would be an adverse affect.

Related Information

Authorisation

This Policy has been approved by:

Lennard Marsden signature

Lennard Marsden
Assistant Director-General
Executive and Information Services
National Archives of Australia

14 July 2014

Footnotes

1 Commonwealth, Parliamentary Debates, Senate, 2 June 1983, 1182-84 (Gareth Evans).

2 The amendments were introduced under the Freedom of Information Amendment (Reform) Act 2010.

3 Public Governance Performance Accountability Act 2013 (Cth) s 8. See definition: proper, when used in relation to the use or management of public resources, means efficient, effective, economical and ethical.

4 This position is supported by the court's consideration in News Corporation Ltd v National Companies and Securities Commission (1984) 51 ALR 277 at 293.

5 Commissioner of Police v District Court of New South Wales and Another (1993) 31 NSWLR 606 at 625.

6 Chemical Trustee Ltd v Federal Commissioner of Taxation [2013] AATA 623.

Was this page helpful?
Please tell us why you selected 'Yes'
Please tell us why you selected 'No'