15.85 The Archives Act establishes the National Archives of Australia (National Archives) and provides for the preservation of the archival resources of the Commonwealth. It also creates an access regime whereby the public generally has a right of access to Commonwealth records that are more than 30 years old (the open access period). The Archives Act provides some protection for information relating to the personal affairs of any person (including a deceased person).
15.86 The Privacy Act provides that records containing personal information in the custody of the National Archives are subject to the operation of the Privacy Act. Two exceptions apply: when the records are in the open access period; or where records are subject to arrangements with a person other than a Commonwealth institution providing for the extent to which the National Archives or other persons are to have access to them. The Archives Act controls access to these categories of records.
15.87 While NPP 4 provides that an organisation must take reasonable steps to destroy or permanently de-identify personal information after a certain amount of time, there is no equivalent IPP to govern the retention of records by agencies. Instead, the Archives Act regulates the retention of records. It prohibits the destruction of Commonwealth records without the permission of National Archives, subject to some exceptions. The interaction between the Archives Act and the ‘Data Security’ principle is considered in Chapter 28.
The open access period
15.88 In DP 72, the ALRC considered whether the Privacy Act should apply to certain classes of records in the open access period for the purposes of the Archives Act. The OPC suggested that one option would be to subject Commonwealth records in the open access period to coverage by IPP 11.
15.89 This view was opposed strongly in submissions from federal and state public records authorities. National Archives argued that the exclusion of records in the open access period from the coverage of the Privacy Act is a recognition that the sensitivity of much personal information diminishes after 30 years. National Archives noted that extending the coverage of the Privacy Act to Commonwealth records in the open access period would limit public access to records, and would impose an unworkable burden on the administration of access by National Archives.
15.90 The ALRC considered this issue in the Report, Australia’s Federal Record: A Review of Archives Act 1983 (ALRC 85) and concluded that the application of the IPPs to records more than 30 years old would be needlessly restrictive. The ALRC stated that the exemption categories within archives legislation continue to provide appropriate protection for personal information.
15.91 The ALRC affirms that view. The access regime in the open access period must take into consideration the fact that sensitivities attaching to information may diminish after 30 years. Prohibiting the disclosure of all personal information, including names of individuals, would greatly restrict access to archival records.
15.92 The open access period in each state and territory varies. For example, under the Territory Records Act 2002 (ACT) a record of an agency is open to public access if 20 years has elapsed since the record came into existence. Under the federal Archives Act, State Records Act 1998 (NSW) and the Public Records Act 1973 (Vic), the open access period is 30 years, and under the Archives Act 1983 (Tas) it is 25 years. In the interest of national consistency, the Australian Government and state and territory governments, in consultation with the Council of Australasian Archives and Records Authorities, should consider reviewing the Archives Act and equivalent state and territory public records legislation to ensure that the ‘open access period’ under each Act is consistent.
The ‘personal affairs’ exemption
15.93 Section 33(1)(g) of the Archives Act provides an exception to public access to records if the access would involve the unreasonable disclosure of information relating to the ‘personal affairs of any person (including a deceased person)’. Section 41 of the FOI Act provides a similar exemption, although it applies to ‘personal information’ rather than ‘personal affairs’.
15.94 ‘Personal affairs’ is generally considered to be a narrower concept than ‘personal information’. For example, in Young v Wicks, ‘personal affairs’ was interpreted as ‘matters of private concern to a person’. What is critical to the definition of ‘personal information’ under the Privacy Act, however, is that information is capable of identifying an individual rather than its specific nature. Under the current definition of ‘personal information’, if a person’s identity is clear, or reasonably capable of being ascertained, then any information about them is covered, whether or not it is of private concern.
15.95 In DP 72, the ALRC considered whether s 33(1)(g) of the Archives Act should be amended to provide an exemption to the unreasonable disclosure of ‘personal information’ as defined in the Privacy Act. The ALRC received only a few submissions on this issue. The OPC submitted that amending the ‘personal affairs’ exemption to apply to ‘personal information’ would protect privacy better, and harmonise the Archives Act with both the Privacy Act and the FOI Act.
15.96 There was strong opposition to such an amendment from other stakeholders. The National Archives submitted that such a proposal would, in practice, unnecessarily restrict access to records, undermining the intent of the Archives Act. In addition it would vastly increase the workload of decision makers under the Archives Act. National Archives argued that to date the lack of uniformity with the FOI Act terminology has not caused any difficulty in the application of the Archives Act or FOI Act. It is appropriate in the context of the different age of the information that it be covered by the two pieces of legislation.
15.97 The ALRC does not make any recommendation in relation to the ‘personal affairs’ exemption under the Archives Act. This position contrasts with that taken by the ALRC in ALRC 85. In that report the ALRC recommended that federal archives legislation should include an exemption category relating to ‘personal information’, the disclosure of which would, or could reasonably be expected to, have an adverse effect on any person.
15.98 Strong arguments were put forward in submissions against any change to the exemption. The ALRC is concerned that changing the exemption to refer to ‘personal information’ may needlessly restrict access to records, and undermine the intent of the Archives Act. The ALRC is also conscious that such a change would increase the workload of decision makers under the Archives Act. The lack of uniformity with the FOI Act terminology has not caused any difficulty in the application of the Archives Act and FOI Act, and is an appropriate recognition of the different age and sensitivity of the information covered by the Acts. In the absence of any identifiable problem in this area, the benefits in changing the exemption to refer to ‘personal information’ do not outweigh the disadvantages of such an amendment.
 Archives Act 1983 (Cth) s 31.
 Ibid s 33. See discussion below.
 See the definition of ‘record’ in Privacy Act 1988 (Cth) s 6. The second exception would relate to, eg, arrangements between individuals to have their personal collections held by National Archives, eg, the ‘Whitlam collection’ or the ‘Fraser collection’.
 See Archives Act 1983 (Cth) ss 24–29.
Office of the Privacy Commissioner, Submission PR 215, 28 February 2007.
 Queensland Government, Submission PR 242, 15 March 2007; National Archives of Australia, Submission PR 199, 20 February 2007; Public Record Office Victoria, Submission PR 72, 3 January 2007.
 National Archives of Australia, Submission PR 199, 20 February 2007.
 Australian Law Reform Commission, Australia’s Federal Record: A Review of Archives Act 1983, ALRC 85 (1998), [15.56].
Territory Records Act 2002 (ACT) s 26 provides for this (but is to come into affect on 1 July 2008, according to s 2 of that Act).
 See, eg, Archives Act 1983 (Cth) s 31; State Records Act 1989 (NSW) s 26; Public Records Act 1973 (Vic) s 10; Archives Act 1983 (Tas) s 15.
 See above discussion of Freedom of Information Act 1982 (Cth) s 41.
 Young v Wicks (1986) 13 FCR 85, 89. See also Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606, 625; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429, 436; Re F and Health Department (1988) 2 VAR 458, 461.
Privacy Act 1988 (Cth) s 6(1).
M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005).
 Office of the Privacy Commissioner, Submission PR 215, 28 February 2007. See also Confidential, Submission PR 143, 24 January 2007.
 Queensland Government, Submission PR 242, 15 March 2007; National Archives of Australia, Submission PR 199, 20 February 2007; Australian Privacy Foundation, Submission PR 167, 2 February 2007.
 National Archives of Australia, Submission PR 199, 20 February 2007.
Australian Law Reform Commission, Australia’s Federal Record: A Review of Archives Act 1983, ALRC 85 (1998), Rec 162.