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23 Dec 2020

Records management obligations for NSW Government entities 01: What you need to know!

By Dr Ashley Tsacalos, Elizabeth Forbes and Ethan Tindall

In the first in a series of articles that explore the obligations of those that fall within the definition of "public office" in relation to "State records", we look at the basic framework which regulates NSW Government departments and agencies, an array of NSW public sector entities and local councils (among others).

COVID-19 has increased our reliance on technology, so it is more important than ever for NSW Government departments and agencies as well as local councils and anyone else captured by the definition of "public office" to be able to identify a "State record" for the purposes of the State Records Act 1998 (NSW) (the Act).

This article introduces the key principles applicable to NSW Government entities in relation to records management including: statutory definitions; the central protection obligations; the authorities on document retention and destruction; and the enforcement powers of the State Archives and Records Authority of New South Wales (Authority).


What are the consequences for non-compliance with the State Records Act?

Section 21(1) of the Act makes it an offence to:

  1. "abandon or dispose of a "State record", or
  2. transfer or offer to transfer, or be a party to arrangements for the transfer of, the possession or ownership of a "State record", or
  3. take or send a "State record" out of New South Wales, or
  4. damage or alter a "State record", or
  5. neglect a "State record" in a way that causes or is likely to cause damage to the "State record"."

Contravention of section 21(1) may incur a penalty of $5,500. The Authority can apply to the Supreme Court for an injunction against a person who has contravened, is contravening or is proposing to contravene the Act (section 72).


What is a "State record" under the State Records Act?

A "record" is defined in section 3 of the Act as: "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". Section 3 defines a "State record" as:

"any record made and kept, or received and kept, by any person in the course of the exercise of an official function in a "public office", or for any purpose of a "public office", or for the use of a "public office", whether before or after the commencement of this section."

This definition includes email correspondence and other forms of electronic communication such as text messages, instant messaging on applications such as WhatsApp and other social media platforms (eg. Skype, Facebook or Instagram).

Who has obligations under the State Records Act?

The term "public office" is defined in section 3 to include:

  1. a department, office, commission, board, agency or service exercising any function of any branch of the Government of NSW;
  2. a body (whether or not incorporated) established for a public purpose;
  3. a council, county council or joint organisation under the Local Government Act 1993 (NSW);
  4. the Cabinet and the Executive Council;
  5. the office and official establishment of the Governor;
  6. a House of Parliament;
  7. a court or tribunal;
  8. a State collecting institution;
  9. a Royal Commission or Commission of Inquiry;
  10. a State owned corporation;
  11. the holder of any office under the Crown;
  12. a political office holder (other than the Leader of the Opposition in the Legislative Assembly) within the meaning of the Members of Parliament Staff Act 2013 (NSW); and
  13. any, body, office or institution that exercises ay public functions and that is declared by the regulations to be a public office.

What are the obligations of a "public office" under the State Records Act?

A "public office" must protect and manage "State records" under its control. The obligation to protect requires that a "public office":

  • ensures the safe custody and proper preservation of the "State records" that are in its control;
  • ensures that arrangements are in place for the safe keeping, proper preservation and return of those "State records" that are in its control, but in the possession or custody of another; and
  • take reasonable steps to recover a "State record" that belongs to it, but that is not in its possession or custody (unless it is lawfully in the possession or custody of that other person) (section 11).

The obligation to manage "State records" requires that a "public office":

  • make and keep full and accurate records of the activities of the "public office";
  • establish and maintain a records management program in accordance with "standards and codes of best practice";
  • make arrangements with the Authority for monitoring of the records management program; and
  • report to the Authority on the implementation of the records management program (section 12).

How are the retention and disposal of documents regulated?

Section 66(1) specifies the functions of the Authority which includes in subsection 1(a), "to develop and promote efficient and effective methods, procedures and systems for the creation, management, storage, disposal, preservation and use of State records". Section 21(2)(c) of the Act states "anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority" will not be a contravention of the offence provision contained in section 21(1). The  requirements for how long records need to be kept, how they can be disposed of and other records management obligations are specified in the "Retention and Disposal Authorities" approved by the Authority. There are two types of "Retention and Disposal Authorities":


What investigative powers does the Authority have?

A "public office" must give the Authority access to "State records" for the purpose of monitoring compliance with the Act (section 15). Additionally, the Authority may report non-compliance with the Act in its annual report or to the relevant Minister (section 20).

Individuals may submit a complaint to the Authority regarding serious instances of poor record-keeping or non-compliance with the Act. If the Authority decides to deal with the complaint, it will assess the relevant record management policies and processes to determine if there has been a breach.

In March 2020, the NSW Parliament Standing Committee on Social Issues commenced an Inquiry into the Act. The Inquiry's report, released on 15 October 2020, calls for increased monitoring powers for the Authority. If adopted, this recommendation amongst others, will impact NSW Government practices. The NSW Government's response is due on 15 April 2021 (and will be discussed in a future article).

Stay tuned for future articles on this topic; our next article on record management obligations for NSW Government entities will explore issues relating to electronic communications via text messaging, encrypted messaging on applications such as WhatsApp and messaging via social media platforms (eg. Skype, Facebook or Instagram).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.