Public access to records

Public access to State records

Public access under the State Records Act

Public access to the records of Government is a fundamental right in a democratic society. The State Records Act provides for the creation, management and protection of State records, and for public access to those records. The underlying presumption is that State records more than 20 years old should be publicly available.

Under Part 6 of the Act:

• Records that are less than 20 years old are closed to the public unless an ‘early access’ direction has been made
• Records that are more than 20 years old are considered to be in the ‘open access period.’ These records are deemed to be subject to an ‘open to public access’ (OPA) direction unless a ‘closed to public access’ (CPA) direction has been made
• Public offices may also apply a ‘closed to public access’ (CPA) direction to close the records for longer than 20 years

Note: A CPA direction operates solely for the purposes of the State Records Act. It does not affect any other entitlement to access that arises outside of this Act (such as under Privacy legislation), nor does it prevent public offices from giving access voluntarily.

What is a State record?

A record is any document or other source of information compiled, recorded or stored in written form or on film, or by electronic process, or in any other manner or by any other means.

State record means a record made or received by a person:

• in the course of exercising official functions in a public office, or
• for the purpose of a public office, or
• for the use of a public office.

Protection from liability

Under s. 62 of the Act, access providers are protected from liability when granting and giving access to records subject to an OPA direction under the State Records Act. They are protected from any subsequent defamation action resulting from how the records are later used, such as publication.

Protection from liability does not extend to the giving of access outside of the Act, such as the giving of access to closed period material.

Access outside the Act

The fact that a record is closed to public access under this Act does not affect a person’s entitlement to obtain access to the record under other legislation, such as the Government Information (Public Access) Act 2009 or the Privacy and Personal Information Protection Act 1998, if it is considered appropriate or required by law.

Note: The giving of access outside the State Records Act removes the protection from liability under s.62 of the Act.

Special access

Under s.58 of the State Records Act, the Premier can approve special access arrangements for records that are not open to public access under the State Records Act (s. 58). Special access arrangements limit access to particular records by a particular person, persons or class of persons.

The Minister responsible for the records, or a person authorised by the Minister, may, in accordance with arrangements, authorise special access.

Access Directions

An access direction determines whether a State record is open to public access or closed for a longer period of time to protect sensitive information. Records that are in the open access period (i.e. when the record is at least 20 years old) are deemed to be subject to an OPA direction unless a CPA direction has been made. This applies whether or not the records are required as State archives, and regardless of whether they are in the custody of the public office or are held in the State Archives Collection.

Public offices may make an access direction for State records that they have created or have control of. A CPA direction may be given before or after the commencement of the record’s open access period.

Public offices may also make an Early Access direction for records that are not yet in the open access period. Those records are then open to public access while the authorisation is in force.

Types of access directions

Public offices can apply the following access directions to State records:

• Closed to public access (CPA)
• Early access (EA)

*Note: The fact that a record is closed to public access under this Act does not affect a person’s entitlement to obtain access to the record under other legislation, such as the Government Information (Public Access) Act 2009 or the Privacy and Personal Information Protection Act 1998, if it is considered appropriate or required by law.

Steps to making access directions 

The high-level steps for making access directions are listed below. Expand each heading for more information.

Reviews of access directions 

Find out more about the review mechanism

Recordkeeping requirements and the Government Information (Public Access) Act 2009

Creating and capturing records to document activities facilitating the Government Information (Public Access) Act 2009 (GIPA Act), including the processing of formal applications, handling of informal requests, conducting of internal reviews and the release of information, enables your organisation to demonstrate that the process was undertaken transparently and accountably.

Records provide an audit trail that can support organisational decision-making and provide transparency. As a number of decisions are reviewable under the GIPA Act, the organisation should build requirements for records creation into procedures for GIPA activities and make sure that all staff are aware of and familiar with the requirements.

• Read more

Public access to information under other NSW legislation

In addition to the State Records Act the Government Information (Public Access) Act 2009 also provides a public entitlement to information. The Privacy and Personal Information Act 1998 and the Health Records and Information Privacy Act 2002 also regulate public access to particular types of information.

Please see the Attorney General’s Guidelines for making Access Directions for more information.

Changes to the State Records Act from 1 January 2024

As a result of changes that took effect from 1 January 2024, any State record that is more than 20 years old is deemed to be subject to an ‘open to public access’ (OPA) direction, unless a 'closed to public access’ (CPA) direction has been made. This means that public offices are no longer required to make OPA directions. Early Access directions may still be made for records less than 20 years old.

CPA directions will expire after 5 years and must be actively renewed by the public office responsible. If they are not renewed, the records covered by the expired access direction will revert to being open once they are more than 20 years old.

From 1 January 2024, the following access directions are available to public offices: