Exemption of certain records
29 Exemption of certain records
A Commonwealth institution, or a person having authority to act on behalf of a Commonwealth institution, may, with the concurrence of the Director‑General, determine that a Commonwealth record, or each record in a class of Commonwealth records, being a record or class of records in the possession of the Commonwealth institution or relating to the functions of the Commonwealth institution, is:
a record that is not required to be transferred to the care of the Archives under section 27; or
a record to which the Archives is not to be entitled to have access under section 28 or is not to be entitled to have access under that section otherwise than on specified conditions to be observed by the Archives;
and such a determination has effect for such period as is specified in the determination but may at any time be revoked by the Commonwealth institution or a person having authority to act on behalf of the Commonwealth institution.
Notwithstanding subsection (1), the responsible Minister may determine that a Commonwealth record, or each record in a class of Commonwealth records, is:
a record that is not required to be transferred to the care of the Archives under section 27; or
a record to which the Archives is not to be entitled to have access under section 28 or is not to be entitled to have access under that section otherwise than on specified conditions to be observed by the Archives;
and such a determination takes effect upon its being notified to the Archives and has effect for such period as is specified in the determination but may at any time be revoked by the responsible Minister.
The Archives may agree with a Commonwealth institution that records accepted into the care of the Archives from that institution are to be held on certain conditions to be observed by the Archives, not being conditions inconsistent with this Part.
Arrangements under section 64 for a person (other than the Archives) to have custody of a Commonwealth record must enable the Archives to meet its obligations under this subsection.
Where:
the Archives seeks access to a Commonwealth record that is not in the care of the Archives; and
a person responsible for the custody of the record considers that it might be appropriate for a determination to be made under subsection (2) applying paragraph (2)(b) to the record;
the person so responsible may forthwith notify the Archives that he or she so considers and take appropriate action for enabling consideration to be given by the responsible Minister to the making of such a determination.
Where a notification under subsection (4) has been given in respect of a record, the Archives is not entitled to access to the record for a period of one month from the date on which the notification was given, but, if the notification is withdrawn by the person responsible for the custody of the record before the expiration of that period, this subsection ceases to have effect in relation to the record.
A record that is in the open access period is not, by virtue of a determination under subsection (1), a record to which paragraph (1)(b) applies unless:
the record is an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C); and
a security classification applies to the record such that access by the Archives would not be appropriate.
A record that is in the open access period is not, by virtue of a determination under subsection (2), a record to which paragraph (2)(b) applies unless:
the record is an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C); and
a security classification applies to the record such that access by the Archives would not be appropriate.
The concurrence of the Director‑General is not required for the making of a determination under subsection (1) by, or by a person having authority to act on behalf of, any of the following Commonwealth institutions, namely:
the Australian Security Intelligence Organisation;
the Australian Secret Intelligence Service;
the Australian Geospatial‑Intelligence Organisation;
the Australian Signals Directorate;
the Defence Intelligence Organisation;
the Office of National Intelligence;
the Inspector‑General of Intelligence and Security.
The concurrence of the Director‑General is not required for the making of a determination under subsection (1) by the Commissioner of the Australian Federal Police in relation to any record that contains information the release of which would endanger the safety of a person:
who is, or has been, assessed for inclusion in the National Witness Protection Program; or
who is, or has been, a witness within the meaning of the Witness Protection Act 1994 under that Program.
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