and other access law
This page examines Archives and other 'access law' .
It covers -
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
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
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
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.
is another view in Helen Wood's 'The fetish of the document:
an exploration of attitudes towards archives' in New
Archival Research (Liverpool: Liverpool Uni Centre
for Archive Studies 2000) edited by Margaret Procter.
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:
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
Public Record Office Victoria (PRO)
with the Public Records Act 1973
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)
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
that relates to policy formulation and investigations
regarding "the effective conduct of public affairs"
There is provision for exemption of
data and other factual information and its analysis,
on overseas practice
cost data and consultants’ studies
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.
'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
Freedominfo provides a case study
on access to official documentation in the European Union,
dating from the landmark 1993 Code of Access to EU
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).
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
Nine categories of exemptions under the Act encompass
information protected by other statutes
and intra agency memos"
2000, there were 2.235 million FOI requests to federal
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.
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
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
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
All the Canadian provinces have an FOI enactment. Many
have a statutory FOI/Information commissioner concerned
with oversight and provide enforcement.
Archives New Zealand (ANZ)
administers the Archives Act 1957 here.
It centres on the declaration that
has the right to freedom of expression, including the
freedom to seek, receive, and impart information and
opinions of any kind in any form.
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 -
harm national security and international relations (eg
that provided in confidence by other governments or
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
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.
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.
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)
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 -
World Bank | policy here
World Trade Organization | policy here
International Monetary Fund | briefing here
Asian Development Bank | policy here