Thirty-year rule

Last updated

The thirty-year rule (an informal term) is a rule in the laws of the United Kingdom, the Republic of Ireland, and the Commonwealth of Australia that provide that certain government documents will be released publicly thirty years after they were created.

Contents

Some other countries' national archives also adhere to a thirty-year rule for the release of government documents.

United Kingdom

In the United Kingdom, the Public Records Act 1958 stated that:

Public records [...] other than those to which members of the public have had access before their transfer [...] shall not be available for public inspection until they have been in existence for fifty years or such other period [...] as the Lord Chancellor may [...] for the time being prescribe as respects any particular class of public records. [1]

The closure period was reduced from fifty to thirty years by an amending act of 1967, passed during Harold Wilson's government. Among those who had repeatedly urged the scrapping of the fifty-year rule was the historian A. J. P. Taylor.

There were two elements to the rule: the first required that records be transferred from government departments to the Public Record Office (now The National Archives) after thirty years unless specific exemptions were given (by the Lord Chancellor's Advisory Council on Public Records); the second that they would be opened to public access at the same time unless their release was deemed likely to cause "damage to the country's image, national security or foreign relations".

Significant changes were made to the rules as a consequence of the Freedom of Information Act 2000 (FOIA) (which came into full effect on 1 January 2005). FOIA essentially removed the second of the thirty-year rules (the access one), and replaced it with provisions allowing citizens to request a wide range of information before any time limit has expired; and also removed some of the exemptions which had previously applied at the thirty-year point. After thirty years, records are transferred to The National Archives, and are reviewed under FOIA to see if they should be opened. The only rationale for keeping them closed within The National Archives is if a FOIA exemption applies.

As a result of that change, releases now occur monthly, rather than annually, and include more recent events, rather than only those over thirty years old.

An independent inquiry chaired by Paul Dacre, editor of the Daily Mail , recommended in January 2009 that the last restrictions on the release of information, such as Cabinet minutes, should be reduced to a fifteen-year embargo and phased in over a fifteen-year period. [2]

Change to a twenty-year rule

Under the Constitutional Reform and Governance Act 2010, the UK government started moving towards a twenty-year rule.

Files from 1983 were released in August 2013 rather than January 2014, as would previously have been the case, and files from 1984 were released in January 2014.

There will continue to be two releases per year until 2022, when the National Archives will receive the files from 2001 and 2002, having caught up with the transition. [3]

Australia

In Australia, the thirty-year rule applied to Commonwealth (federal) government records, except for Cabinet handbooks (closed for fifty years) and raw census records (closed for 99 years). Those periods were laid down in the Archives Act 1983.

In 2009, the Archives Act was amended to reduce the closed period from thirty to twenty years, with Cabinet notebooks reduced from fifty to thirty years. Census records remain closed for 99 years to protect the privacy of individuals. [4]

Cabinet papers for a full year are released on 1 January each year. To reduce the withholding period from 30 to 20 years, two years of cabinet papers, and three years of cabinet notebooks, have been released simultaneously from 2011 until 2020, when the new 20-year period will be reached.

Ireland

The Government of Ireland declassifies files in a similar fashion according to the thirty-year rule. In recent years, files relating to the state’s role in the conflict in Northern Ireland known as The Troubles are declassified in late December of each year.

Canada

The Supreme Court of Canada has recognized that Cabinet confidentiality is essential to good government. In the decision Babcock v AG Canada [5] the court explained the reason as: [6]

The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.

To preserve this rule of confidentiality, subsection 70(1) of the Privacy Act provides that the Act does not apply to confidences of the Queen's Privy Council for Canada. Other notable cases that expand upon the doctrine of cabinet confidentiality include Canada (Minister of Environment) v. Canada (Information Commissioner), 2003 FCA 68 and Quinn v. Canada (Prime Minister), 2011 FC 379. [6] As of 2013, after a time lag of 20 years Canadians can submit access-to-information requests for cabinet records through the Privy Council Office, but this comes at a cost of $5 per request and can take months to process. [7] In May 2018, it was disclosed that the Supreme Court of Canada under Chief Justice Beverley McLachlin had placed a "50-year from the time they rule on a case" embargo on public access to files related to the deliberations of the judges. [8]

According to Archivist Michael Dufresne, it was not until 1940 and the advent of the Second World War that Cabinet kept an agenda and minutes of its deliberations. [9] From 1867 to 1940, a succession of six men served as Clerk of the Privy Council, and their duties included serving as the only institutional memory bank of the Government of Canada. The appointment in 1940 of Arnold Danforth Patrick Heeney [10] as Clerk and as first Secretary to the Cabinet changed the format of memory bank from biological to scriptural. Heeney was surprised upon arrival by the informal ways in which important business was conducted: [9]

I found it shattering to discover that the highest committee in the land conducted its business in such a disorderly fashion that it employed no agenda and no minutes were taken. The more I learned about Cabinet practices, the more difficult it was for me to understand how such a regime could function at all.

Order-in-Council PC 1940-1121 of March 25, 1940 ushered in a significant change in the documentation of government. The Order-in-Council read, in part: [9]

The great increase in the work of the Cabinet... has rendered it necessary to make provision for the performance of additional duties of a secretarial nature relating principally to the collecting and putting into shape of agenda of Cabinet meetings, providing of information and material necessary for the deliberations of the Cabinet and the drawing up of records of the results, for communication to the departments concerned...

Heeney established procedures and for the first time recorded the minutes and conclusions of a cabinet body – the Cabinet War Committee. [11] In 1942, the Statutory Orders and Regulations Division was set up under PC 7992, 4 September 1942. Also under PC 7992, a registry for maintaining orders and minutes of council, Treasury Board Minutes and other government orders was established. [11] It was not until 1944 that the formal collection of "Cabinet Conclusions" was created. [9]

In the early 1980s, the PCO began a voluntary transfer of cabinet records, which had been declassified after a 30-year holding period, to the National Archives (which became Library and Archives Canada in 2004) where they became publicly available, [7] under the label "Cabinet Conclusions". [12] After an initial document dump that included records dated from 1937 to 1952, the PCO released the records on an annual basis. [7]

In 2008, two years after Prime Minister Stephen Harper was elected, the tradition of annual voluntary releases of Cabinet Conclusions stopped. [7]

In September 2013 while the Harper government was in power, PCO spokesman Raymond Rivet told a news organisation that the office was "committed" to making government documents and information accessible but that "Processing these records requires a significant investment of resources. We will continue to process and release records as resources permit." [7]

In May 2017, it came to light that the Government of Canada was under no obligation to release documentary records after a number of years. NDP Member of Parliament (MP) Murray Rankin, a legal scholar, said at the time: [13]

It's a question of political will. Some countries do this a lot better than Canada. The Americans do. The Swedes do. The British do. We have to catch up.

In June 2017, an agreement between the Supreme Court of Canada and Library and Archives Canada arranged for the transfer of case-files under a 50-year rule. [14]

Israel

Israel adopted the British model of a thirty-year rule as the basis for reviewing and declassifying its foreign policy documents. [15] Israeli declassification policy is based on the Archives law of 1955. The principle of the law is that all material is to be released after thirty years, subject to limitations based on damage to state security, foreign policy or personal privacy. In practice this means that declassification of documents are fixed at different periods based on type of material and date of production. [16]

The original law has been modified and updated a number of times. [16] Following a 2010 update of the legislation, the office of the Prime Minister released as statement explaining that "the new regulations shorten the period after which non-security-related material may be viewed, from 30 to 15 years, while lengthening the confidentiality period of certain defense-related documents to 70 years in cases in which Israel's security conditions require it". [17]

Germany

The German Federal Archives generally makes its holdings available after 30 years. Exceptions are for personnel files, which are opened only 10 years after the death of the individual or 100 years after the person's birth if the date of death is unknown, and records dealing with taxation, credit, and banking, which are sealed for 60 years.

Additionally, Federal Archives holdings originating with the Communist Party and communist organizations of the former German Democratic Republic (East Germany) have been available for decades with almost no limitations. The Federal Archives has also worked to make East German government records available with a minimum of time limitation. In any event, since October 2020, 30 years have passed from the dissolution of the GDR. [18]

See also

Related Research Articles

<span class="mw-page-title-main">National Archives and Records Administration</span> United States government agency

The National Archives and Records Administration (NARA) is an independent agency of the United States government within the executive branch, charged with the preservation and documentation of government and historical records. It is also tasked with increasing public access to those documents that make up the National Archives. NARA is officially responsible for maintaining and publishing the legally authentic and authoritative copies of acts of Congress, presidential directives, and federal regulations. NARA also transmits votes of the Electoral College to Congress. It also examines Electoral College and constitutional amendment ratification documents for prima facie legal sufficiency and an authenticating signature.

Freedom of information laws allow access by the general public to data held by national governments and, where applicable, by state and local governments. The emergence of freedom of information legislation was a response to increasing dissatisfaction with the secrecy surrounding government policy development and decision making. In recent years Access to Information Act has also been used. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions. Also variously referred to as open records, or sunshine laws, governments are typically bound by a duty to publish and promote openness. In many countries there are constitutional guarantees for the right of access to information, but these are usually unused if specific support legislation does not exist. Additionally, the United Nations Sustainable Development Goal 16 has a target to ensure public access to information and the protection of fundamental freedoms as a means to ensure accountable, inclusive and just institutions.

<span class="mw-page-title-main">Classified information</span> Material that government claims requires confidentiality

Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted by law or regulation to particular groups of people with the necessary security clearance and need to know. Mishandling of the material can incur criminal penalties.

<span class="mw-page-title-main">Freedom of Information Act (United States)</span> 1967 US statute regarding access to information held by the US government

The Freedom of Information Act, 5 U.S.C. § 552, is the United States federal freedom of information law that requires the full or partial disclosure of previously unreleased or uncirculated information and documents controlled by the U.S. government, state, or other public authority upon request. The act defines agency records subject to disclosure, outlines mandatory disclosure procedures, and includes nine exemptions that define categories of information not subject to disclosure. The act was intended to make U.S. government agencies' functions more transparent so that the American public could more easily identify problems in government functioning and put pressure on Congress, agency officials, and the president to address them. The FOIA has been changed repeatedly by both the legislative and executive branches.

<span class="mw-page-title-main">Declassification</span> Publication of formerly secret information

Declassification is the process of ceasing a protective classification, often under the principle of freedom of information. Procedures for declassification vary by country. Papers may be withheld without being classified as secret, and eventually made available.

<i>The Puzzle Palace</i> Book by James Bamford

The Puzzle Palace is a book written by James Bamford and published in 1982. It is the first major, popular work devoted entirely to the history and workings of the National Security Agency (NSA), a United States intelligence organization. The title refers to a nickname for the NSA, which is headquartered in Fort Meade, Maryland. In addition to describing the role of the NSA and explaining how it was organized, the book exposed details of a massive eavesdropping operation called Operation Shamrock. According to security expert Bruce Schneier, the book was popular within the NSA itself, as "the agency's secrecy prevents its employees from knowing much about their own history".

<span class="mw-page-title-main">National Security Archive</span> Open government advocacy and investigative journalism nonprofit at George Washington University

The National Security Archive is a 501(c)(3) non-governmental, non-profit research and archival institution located on the campus of the George Washington University in Washington, D.C. Founded in 1985 to check rising government secrecy. The National Security Archive is an investigative journalism center, open government advocate, international affairs research institute, and the largest repository of declassified U.S. documents outside the federal government. The National Security Archive has spurred the declassification of more than 15 million pages of government documents by being the leading non-profit user of the U.S. Freedom of Information Act (FOIA), filing a total of more than 70,000 FOIA and declassification requests in its over 35+ years of history.

<span class="mw-page-title-main">Freedom of Information Act 2000</span> Act of Parliament in the United Kingdom

The Freedom of Information Act 2000 is an Act of the Parliament of the United Kingdom that creates a public "right of access" to information held by public authorities. It is the implementation of freedom of information legislation in the United Kingdom on a national level. Its application is limited in Scotland to UK Government offices located in Scotland. The Act implements a manifesto commitment of the Labour Party in the 1997 general election, developed by David Clark as a 1997 White Paper. The final version of the Act was criticised by freedom of information campaigners as a diluted form of what had been proposed in the White Paper. The full provisions of the act came into force on 1 January 2005.

The Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group is a United States government interagency group, which is tasked with locating, identifying, inventorying, and recommending for declassification classified U.S. records relating to Nazi German and Imperial Japanese war crimes.

The national security and intelligence advisor is a public servant who advises the prime minister of Canada on security and intelligence matters. The position is supported by the Security and Intelligence Secretariat and the Intelligence Assessment Staff and holds the rank of associate secretary in the Privy Council Office (PCO).

Public records are documents or pieces of information that are not considered confidential and generally pertain to the conduct of government.

<i>Edwards v Canada (AG)</i> 1929 Canadian court case about womens eligibility as senators

Edwards v Canada (AG), also known as the Persons Case (French: l'Affaire « personne »), is a Canadian constitutional case that decided in 1929 that women were eligible to sit in the Senate of Canada. The legal case was put forward by the Government of Canada on the lobbying of a group of women known as The Famous Five—Henrietta Edwards, Nellie McClung, Louise McKinney, Emily Murphy and Irene Parlby. The case began as a reference case by the federal Cabinet directly to the Supreme Court of Canada, which ruled that women were not "qualified persons" and thus ineligible to sit in the Senate. The five women then appealed to the Judicial Committee of the Imperial Privy Council in London, at that time the court of last resort for Canada within the British Empire and Commonwealth. The Judicial Committee overturned the Supreme Court's decision. (The case name lists Edwards as the lead appellant, as her name came first alphabetically.)

The United States government classification system is established under Executive Order 13526, the latest in a long series of executive orders on the topic of classified information beginning in 1951. Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the regulations codified to 32 C.F.R. 2001. It lays out the system of classification, declassification, and handling of national security information generated by the U.S. government and its employees and contractors, as well as information received from other governments.

The Reporters Committee for Freedom of the Press(RCFP) is a nonprofit organization based in Washington, D.C., that provides pro bono legal services and resources to and on behalf of journalists. The organization pursues litigation, offers direct representation, submits amicus curiae briefs, and provides other legal assistance on matters involving the First Amendment, press freedom, freedom of information, and court access issues.

The Treasury Boardof Canada is the Cabinet committee of the Privy Council of Canada which oversees the spending and operation of the Government of Canada and is the principal employer of the core public service. The committee is supported by the Treasury Board of Canada Secretariat, its administrative branch and a department within the government itself.

<i>Access to Information Act</i> Canadian freedom of information act

The Access to Information Act or Information Act is a Canadian Act providing the right of access to information under the control of a federal government institution. As of 2020, the Act allowed "people who pay $5 to request an array of federal files". Paragraph 2. (1) of the Act ("Purpose") declares that government information should be available to the public, but with necessary exceptions to the right of access that should be limited and specific, and that decisions on the disclosure of government information should be reviewed independently of government. Later paragraphs assign responsibility for this review to an Information Commissioner, who reports directly to parliament rather than the government in power. However, the Act provides the commissioner the power only to recommend rather than compel the release of requested information that the commissioner judges to be not subject to any exception specified in the Act.

The Joint Staff Information Management Division (IMD) is one of two divisions which make up the Joint Staff Secretariat (SJS) of the United States Joint Chiefs of Staff currently located in the Pentagon in Arlington, Virginia (USA). The other division is called Actions Division (AD) which manages the daily workflow of the staff.

Access to public information and freedom of information (FOI) refer to the right of access to information held by public bodies also known as "right to know". Access to public information is considered of fundamental importance for the effective functioning of democratic systems, as it enhances governments' and public officials' accountability, boosting people participation and allowing their informed participation into public life. The fundamental premise of the right of access to public information is that the information held by governmental institutions is in principle public and may be concealed only on the basis of legitimate reasons which should be detailed in the law.

<span class="mw-page-title-main">Illinois Freedom of Information Act</span> Public records law in Illinois

The Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., is an Illinois statute that grants to all persons the right to copy and inspect public records in the state. The law applies to executive and legislative bodies of state government, units of local government, and other entities defined as "public bodies". All records related to governmental business are presumed to be open for inspection by the public, except for information specifically exempted from disclosure by law. The statute is modeled after the federal Freedom of Information Act and serves a similar purpose as freedom of information legislation in the other U.S. states.

United States Fish and Wildlife Service v. Sierra Club, Inc., 592 U.S. ___ (2021), was a Supreme Court of the United States case involving whether the use of a Freedom of Information Act (FOIA) request can be used to access documents from a U.S. agency that are protected under the deliberative process privilege exemption, in this specific case, draft biological opinions made and reviewed by the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) prior to a final rulemaking decision by the Environmental Protection Agency (EPA) related to impacts on endangered aquatic species, requested by the Sierra Club. The Court ruled in a 7–2 decision in 2021 that the government does not have to disclose "draft biological opinions" involving potential threats to endangered species, even though the drafts reflect an agency's final proposal. The ruling limits environmental groups' ability to obtain government documents using the FOIA.

References

  1. "UK Public Records Act 1958".
  2. Summers, Deborah (29 January 2009). "30-year rule on government disclosure should be halved, Dacre inquiry says". The Guardian .
  3. "20-year rule". The National Archives.
  4. "Explanatory Memorandum to Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008" (PDF). Department of Prime Minister and Cabinet. Archived from the original (PDF) on 14 May 2009.
  5. 2002 SCC 57 at paragraph 18
  6. 1 2 canada.ca: "Confidences of the Queen's Privy Council for Canada (Cabinet confidences)", 2014-04-30
  7. 1 2 3 4 5 canada.com: "Release of government documents backlogged", 2 Sep 2013
  8. theglobeandmail.com: "Supreme Court of Canada to keep records of deliberations secret for at least 50 years", 14 May 2018
  9. 1 2 3 4 Library and Archives Canada Blog: "The beginning of the Conclusions: documenting the exercise of power", 16 Feb 2018
  10. sic?
  11. 1 2 "Archives Search", 2018-05-20
  12. Library and Archives Canada: "Cabinet Conclusions", 2018-02-16
  13. cbc.ca: "Government accused of hoarding Canadian history in 'secret' archives", 25 May 2017
  14. theglobeandmail.com: "Supreme Court of Canada to keep records of deliberations secret for at least 50 years", 14 May 2018
  15. Pappe, Ilan (1999). The Israel/Palestine Question. Routledge. p. 153. ISBN   0415169488.
  16. 1 2 Fischer, Louise (2008). 8e Conference Internationale Des Editeurs de Documents Diplomatiques 8th International Conference of Editors of Diplomatic Documents: Des Etats Et de ... about States and Uno (Diplomatie Et Histoire). European Interuniversity Press. p. 78. ISBN   978-9052013893.
  17. Ravid, Barak (28 July 2010). "State archives to stay classified for 20 more years, PM instructs". Haaretz. Retrieved 18 October 2012.
  18. "Fristen zur Benutzung".