State Records Act 1998 (NSW)

State Records Act 1998 No 17 An Act to make provision for the creation, management and protection of the records of public offices of the State and to provide for public access to those records, to establish the State Archives and Records Authority; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the State Records Act 1998. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— access direction means a CPA direction or OPA direction. access provider—see section 60(1). Authority means the State Records Authority NSW constituted by this Act. Board means the Board of the Authority established by this Act. control has its meaning affected by section 6. CPA direction means a direction that a record is closed to public access under this Act. Director means the person employed in the Public Service as the Executive Director of the Authority. dispose of means dispose of by destruction or by any other means. exercise a function includes perform a duty. function includes a power, authority and duty. OPA direction means a direction that a record is open to public access under this Act. open access period (see section 50). person includes a public office and a body (whether or not incorporated). public office— (a) means each of the following— (i) a department, office, commission, board, corporation, agency, service or instrumentality exercising a function of a branch of the Government of the State, (ii) a body, whether incorporated or not, established for a public purpose, (iii) a council, county council or joint organisation under the Local Government Act 1993, (iv) the Cabinet and the Executive Council, (v) the office and official establishment of the Governor, (vi) a House of Parliament, (vii) a court or tribunal, (viii) a State collecting institution, (ix) a Royal Commission or Commission of Inquiry, (x) a State owned corporation, (xi) the holder of an office under the Crown, (xii) 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, (xiii) a body, office or institution, whether or not it is a public office under another subparagraph of this paragraph, that exercises a public function and is declared by the regulations to be a public office for the purposes of this Act, (b) but does not include— (i) the Workers Compensation Nominal Insurer established under the Workers Compensation Act 1987, or (ii) a justice of the peace within the meaning of the Justices of the Peace Act 2002, or (iii) another individual or a private sector entity, except to the extent that section 8 applies. record means 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 archive means a State record that Museums of History NSW has control of under this Act. State collecting institution means each of the following— (a) Art Gallery of New South Wales Trust, (b) Australian Museum Trust, (c) Museums of History NSW, (d) Trustees of the Museum of Applied Arts and Sciences, (e) National Parks and Wildlife Service, (f) Royal Botanic Gardens and Domain Trust, (g) Library Council of New South Wales (in respect of the State Library of New South Wales), (h) Sydney Opera House Trust, (i) Zoological Parks Board, (j) any public office that is prescribed by the regulations as a State collecting institution (a prescribed State collecting institution). Note— See section 5 for how this Act applies to State collecting institutions. State record means a record made or received by a person, whether before or after the commencement of this section— (a) in the course of exercising official functions in a public office, or (b) for a purpose of a public office, or (c) for the use of a public office. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Aboriginal objects excluded from operation of Act (1) This Act does not apply to an Aboriginal object and an Aboriginal object is not a record for the purposes of this Act. (2) In this section, Aboriginal object has the same meaning as in the National Parks and Wildlife Act 1974. 5 Application of Act to State collecting institutions (1) This Act does not apply to a State record that is a private record in the collection of a State collecting institution. (2) A State record that is a private record in the collection of a State collecting institution ceases to be a State record if the institution ceases to exist. (3) Subject to subsections (4) and (5), Parts 2, 4 and 6 do not apply to a State record taken into the collection of a State collecting institution, other than a prescribed State collecting institution, before 1 January 1999. (4) The Authority may enter into an agreement with a State collecting institution that provides that 1 or more provisions of Part 2 that relate to functions conferred on the Authority apply, with or without modification, to records taken into the institution's collection before 1 January 1999. (5) Museums of History NSW may enter into an agreement with a State collecting institution that provides that 1 or more provisions of Part 2, 4 or 6 that relate to functions conferred on Museums of History NSW apply, with or without modification, to records taken into the institution's collection before 1 January 1999. (6) If a provision of this Act would otherwise require Museums of History NSW to enter into an agreement with, or obtain the consent of, Museums of History NSW, the agreement is taken to have been entered into, or the consent obtained, without further steps needing to be taken. (7) In this section— private record means a record that is only a State record because it was taken into the collection of a State collecting institution in the circumstances set out in section 3(1), definition of State record. 6 Meaning of "control" of a record (1) For the purposes of this Act, a person is taken to have control of a record if the person has possession or custody of the record or has the record in the possession or custody of some other person. (2) For the purposes of this Act, an entitlement to control of a record is an entitlement to possession and custody of the record (including by having it in the possession or custody of some other person). Note— For example, a public office is taken to have control of records that are held by the public office in storage with a commercial storage provider. 7 Meaning of public office "responsible" for a record (1) The public office responsible for a State record for the purposes of this Act is the public office that is entitled to control of the record or (in the case of a record that Museums of History NSW is entitled to control of under this Act) the public office that would be entitled to control of the record if Museums of History NSW were not entitled to control of it. (2) In the absence of evidence to the contrary, the public office in which a record was made or received as a State record is the public office that is entitled to control of the record. (3) If that public office has ceased to exist, the public office entitled to control of the record is— (a) the public office on which the functions of the defunct office have devolved, or (b) if the defunct office's functions have devolved on more than one public office—the public office on which have devolved the functions to which the record most closely relates. (3A) Subsection (3) does not apply in relation to a political office holder within the meaning of the Members of Parliament Staff Act 2013 to the extent that provision is otherwise made under that Act for the transfer of records relating to the political office holder to another public office. (4) If the defunct office's functions have not devolved on another public office, the public office entitled to control of the record is such public office as the Minister may designate after consulting with the person in charge of the public office proposed to be designated. (4A) However, if the defunct office whose functions have not devolved on another public office is a Royal Commission or Special Commission of Inquiry, the public office entitled to control of the record is the Cabinet Office. (5) If there is a dispute or uncertainty as to which public office is entitled to control of a record, the Minister can resolve the dispute or uncertainty by designating a particular public office as the public office entitled to control of the record. The public office so designated is conclusively presumed to be the public office entitled to control of the record. 8 State records transferred to private successor of public office A person who is not a public office but who has State records under the person's control as a result of the transfer to the person of the functions or undertaking of the public office previously responsible for the records is for the purposes of this Act taken to be a public office in respect of those records. Part 2 Records management responsibilities of public offices 9 Application of Part to Governor, Parliament and courts (1) This Part does not apply to the following persons, or to the State records for which they are responsible, except as may be provided by agreement between the person and the Authority— (a) the Governor acting in the Governor's vice-regal capacity, (b) the Houses of Parliament, (c) a court or tribunal, in respect of the court's or tribunal's judicial functions. (2) The Authority may enter into agreements for the purposes of this section providing for the application (with or without specified modifications) of any of the provisions of this Part to those persons and their records. Note— Section 5 should be referred to to understand how this Part applies to State collecting institutions. 10 Chief executives to ensure compliance with Act The chief executive of each public office has a duty to ensure that the public office complies with the requirements of this Act and the regulations and that the requirements of this Act and the regulations with respect to State records that the public office is responsible for are complied with. 11 Obligation to protect records (1) Each public office must ensure the safe custody and proper preservation of the State records that it has control of. (2) A public office must ensure that arrangements under which a State record that it has control of but that is in the possession or custody of some other person include arrangements for the safe keeping, proper preservation and due return of the record. (3) A public office must take all reasonable steps to recover a State record for which the public office is responsible and that the public office does not have control of, unless the record is under the control of the Authority or of some other person with lawful authority. 12 Records management obligations (1) Each public office must make and keep full and accurate records of the activities of the office. (2) Each public office must establish and maintain a records management program for the public office in conformity with standards and codes of best practice from time to time approved under section 13. (3) The Authority may permit such departures from the requirements of the standards and codes as it considers necessary or desirable to accommodate the particular needs of a public office or class of public offices. (4) Each public office must make arrangements with the Authority for the monitoring by the Authority of the public office's records management program and must report to the Authority, in accordance with arrangements made with the Authority, on the implementation of the public office's records management program. (5) The Authority may issue a notice to a public office requiring the public office to, as directed by the notice— (a) conduct an assessment of its record-keeping processes and records management program, and (b) provide the Authority with a report on the findings arising from the assessment. (6) If the Authority is not satisfied with a report, or the findings of a report, referred to in subsection (5), the Authority may include information about this in the Authority's annual reporting information prepared under the Government Sector Finance Act 2018. 13 Standards and codes of best practice for records management (1) The Authority may from time to time approve standards and codes of best practice for records management by public offices. Records management extends to include all aspects of the making, keeping and disposal of records. (2) The Authority is not to approve of a standard or code of best practice unless the Board has approved of the standard or code. (3) The Authority is to consult with public offices on any proposed standards or codes under this section. It is sufficient consultation if the Authority gives notice in the Gazette of the availability of any proposed standards and codes and invites submissions on them. (4) The Authority is to keep under review the standards and codes for the time being approved under this section. (5) The Authority is to notify its approval of a standard or code by notice published in the Gazette. 14 Obligation to maintain accessibility to equipment/technology dependent records (1) If a record is in such a form that information can only be produced or made available from it by means of the use of particular equipment or information technology (such as computer software), the public office responsible for the record must take such action as may be necessary to ensure that the information remains able to be produced or made available. (2) This section applies only while the public office has control of the record or has the record in its custody or possession under an agreement with Museums of History NSW. Note— A public office can comply with this section in a number of ways, such as by "migration" of existing records into new technology, creating records or copies of records using technology that outlasts technological change, or by retaining existing technology. Museums of History NSW can provide guidance on how to comply with this section. 15 Authority entitled to access to records A public office must give the Authority and the Authority's officers such access to State records that the public office has control of as may be reasonably necessary for the purpose of enabling the Authority to monitor compliance by the public office with the requirements of this Act and the regulations. 16 Chief executive in special cases (1) The Secretary of the Cabinet Office is the chief executive of the following public offices for the purposes of this Act— (a) the Cabinet, (b) the Executive Council, (c) a Royal Commission or Special Commission of Inquiry. (2) The regulations may provide that the holder of a specified office is the chief executive of a specified public office for the purposes of this Act. 17 Disputes about operation of Act (1) If there is a dispute between a public office and the Authority or Museums of History NSW about the operation of this Act as it relates to a function conferred on the Authority or Museums of History NSW, either party may request a review of the matter by— (a) the Ministers responsible for each party, or (b) if the same Minister is responsible for both parties—the Minister responsible for both parties. (2) The parties must make a reasonable effort to resolve the dispute before requesting a review. (3) A decision of the Authority to permit or not to permit, or to approve a practice or procedure involving, an act referred to in section 21(1) may not be reviewed. (4) If the dispute is not resolved by the responsible Minister or Ministers, it must be referred to— (a) the Premier, or (b) another Minister designated by the Premier in a particular case. (5) Both parties must comply with a direction given by the Premier or the designated Minister to resolve the dispute. 18 Special agreements with public offices exercising inter-government functions (1) This section applies to public offices that exercise functions (inter-government functions) jointly or in cooperation with a public body of the Commonwealth, another State or a Territory, under a law or an agreement or other arrangement between governments. (2) The Authority or Museums of History NSW may, as it relates to functions conferred on the Authority or Museums of History NSW, respectively, enter into an agreement with the public office that provides for the rights and obligations of the public office in relation to making, keeping, protecting, controlling or providing access to records relating to the exercise of inter-government functions. (3) The agreement may exclude or modify the application of 1 or more provisions of Part 2, 4 or 6 to specified records. (4) A term of the agreement prevails over a provision of this Act to the extent of an inconsistency. 19 Records storage facilities and other services (1) Museums of History NSW can provide services (including assistance, advice and training) in all areas of records management, including creation, scheduling, storage and disposal. (2) In particular, Museums of History NSW can establish and maintain (either alone or jointly with others) repositories and other facilities for the care, management, use and servicing of State archives and other State records. (3) The services provided by Museums of History NSW— (a) can be provided on a commercial basis, and (b) can be provided in respect of records of any kind (whether or not they are State records), and (c) can be provided to any person (whether or not a public office), and (d) can be provided within and outside the State, including outside Australia. (4) Museums of History NSW can accredit repositories and other facilities provided by other persons (including any public office) for the purpose of their use for the care, management and servicing of State archives and other State records. 20 Reports by Authority about compliance (1) The Authority may report to the Minister responsible for a public office any failure by the public office to comply with the requirements of this Act or the regulations or any other matter of concern to the Authority with regard to the public office's obligations under this Act or the regulations. (2) The Authority can include in annual reporting information prepared for it under the Government Sector Finance Act 2018 a report of any incidences of failure by public offices to comply with the requirements of this Act or the regulations. Part 3 Protection of State records 21 Protection measures (1) A person must not— (a) abandon or dispose of a State record, or (b) transfer or offer to transfer, or be a party to arrangements for the transfer of, the possession or ownership of a State record, or (c) take or send a State record out of New South Wales, or (d) damage or alter a State record, or (e) neglect a State record in a way that causes or is likely to cause damage to the State record. Maximum penalty—100 penalty units. (2) None of the following is a contravention of this section— (a) anything done in accordance with normal administrative practice in a public office (as provided by section 22), (b) anything that is authorised or required to be done by or under this Act, or by or under a provision of any other Act that is prescribed by the regulations as being an exception to this Part, (c) anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority either generally or in a particular case or class of cases (including any practice or procedure approved of under any standards and codes of best practice for records management formulated by the Authority), (d) anything done pursuant to an order or determination of a court or tribunal, (e) the disposal, in accordance with a resolution of a House of Parliament, of a State record for which the House is the responsible public office, (f) anything done for the purpose of placing a record under the control of a public office, (g) the transfer or disposal, in accordance with the Members of Parliament Staff Act 2013, of a record of information created or received by a political office holder (within the meaning of that Act) or the staff of such an office holder. (3) The Authority must not do, or give permission or approval for or with respect to the doing of, anything referred to in subsection (1) except with the approval of the Board given either generally or in a particular case or class of cases. (4) Anything done by a person (the employee) at the direction of some other person given in the course of the employee's employment is taken for the purposes of this section not to have been done by the employee and instead to have been done by that other person. (5) It is a defence to a prosecution for an offence under this section for the defendant to establish that he or she did not know and had no reasonable cause to suspect that the record was a State record. (6) This section prevails over a provision of any other Act enacted before the commencement of this section. (7) An Act enacted after the commencement of this section is not to be interpreted as prevailing over or otherwise altering the effect or operation of this section except in so far as that Act provides expressly for that Act to have effect despite this section. 22 Normal administrative practice (1) Something is considered to be done in accordance with normal administrative practice in a public office if it is done in accordance with the normal practices and procedures for the exercise of functions in the public office. (2) However, something is not considered to be done in accordance with normal administrative practice if— (a) it is done corruptly or fraudulently, or is done for the purpose of concealing evidence of wrongdoing, or is done for any other improper purpose, or (b) it is conduct or conduct of a kind declared by the regulations to be unacceptable for the purposes of this Part, or (c) it is done in accordance with a practice or procedure declared by the regulations to be unacceptable for the purposes of this Part, or (d) it is done in accordance with a practice or procedure that the Authority has notified the public office in writing is unacceptable for the purposes of this Part. (3) The regulations may prescribe guidelines on what constitutes normal administrative practice. The guidelines do not limit what constitutes normal administrative practice and do not affect the operation of subsection (2). 23 Permission for sale of privately owned records cannot be refused unless Authority has offered to buy The Authority cannot refuse permission for the sale of a State record that is in private ownership unless the Authority has offered to buy the record at market value and the offer has been refused. The market value of a State record is the amount that would be paid for the record by a willing but not anxious buyer. A State record is taken to be in private ownership if it is not owned by the State or an agency of the State. 24 Consent of public office required before records can be disposed of (1) Museums of History NSW must not dispose, or permit the disposal, of a State record in the possession of Museums of History NSW, unless the public office responsible for the record has consented to its disposal. (2) This section does not apply to a record once it becomes a State archive. 25 Special provision for records concerning Aboriginal heritage (1) The Authority must not dispose of or give permission for the disposal of a State record that contains information with respect to the State's Aboriginal heritage unless the Authority has first consulted with the Chief Executive of the Office of Environment and Heritage on the need to preserve the record. (2) The Authority and the Chief Executive may enter into arrangements for excluding particular records or classes of records from the operation of this section. Part 4 Museums of History NSW entitled to control of State records not currently in use 26 Application of Part to Governor, Parliament and courts (1) This Part does not apply to the following persons, or to the State records for which they are responsible, except as may be provided by agreement between the person and Museums of History NSW— (a) the Governor acting in the Governor's vice-regal capacity, (b) the Houses of Parliament, (c) a court or tribunal, in respect of the court's or tribunal's judicial functions. (2) Museums of History NSW may enter into agreements for the purposes of this section providing for the application (with or without specified modifications) of any of the provisions of this Part to those persons and their records. Note— Section 5 should be referred to to understand how this Part applies to State collecting institutions. 27 Museums of History NSW entitled to State records no longer in use Once a State record is no longer in use for official purposes in the public office responsible for the record, the Museums of History NSW is entitled to control of the record and the public office ceases to be entitled to control of it. 28 Records more than 25 years old presumed not in use (1) A State record is to be regarded as no longer in use for official purposes in a public office if the record is more than 25 years old, unless the public office has made a determination (a still in use determination) that the record is still in use for official purposes in the public office. A record may be no longer in use even if it is less than 25 years old. This section is not intended to create a presumption that a record is in use just because it is less than 25 years old. (2) A still in use determination need not be specific to a particular record and can instead be made so as to relate to a series, group or class of records. A public office must consult with Museums of History NSW before making a still in use determination. A still in use determination is to be in writing and a copy of it is to be given to Museums of History NSW as soon as practicable after it is made. (3) A still in use determination remains in force for the period (up to 5 years) specified in the determination unless it is revoked sooner by the public office responsible for the records concerned. The determination can be revoked by giving notice of revocation in writing to Museums of History NSW and can be remade before it expires, or a new determination can be made. There is no limit on the number of times a still in use determination can be made or remade. (4) Museums of History NSW may in a particular case request a public office to have a still in use determination made by it reviewed and approved by the Minister responsible for the public office. The determination lapses and cannot be remade without the permission of Museums of History NSW if it is not approved by the Minister within 3 months after the request is made. (5) A still in use determination can be made before any record to which it applies is 25 years old. 29 Records required to be made available to Museums of History NSW A public office that has control of a record that Museums of History NSW is entitled to control of under this Act is required to make the record available to Museums of History NSW (to enable Museums of History NSW to take control of the record). Museums of History NSW may issue guidelines to public offices from time to time as to how State records are to be made available to Museums of History NSW and public offices are to comply with those guidelines. 30 How Museums of History NSW takes control of a record (1) Museums of History NSW takes control of a State record by taking the record into its possession or custody or by entering into an agreement, understanding or other arrangement whereby some other person (which can include the public office that is responsible for the record) is to have possession or custody of the record. (2) Any such agreement, understanding or other arrangement must include provision for facilitating the giving of access to records in accordance with this Act. Note— An agreement under this section with a public office could provide for the payment by Museums of History NSW of the reasonable costs to be incurred by the public office in complying with section 14 (Obligation to maintain accessibility to equipment/technology dependent records) in respect of a record to which the agreement applies. 31 Museums of History NSW not required to take control of records (1) Museums of History NSW is not required to take control of a State record just because it is entitled to control of the record. (2) The fact that Museums of History NSW does not take control of a State record when it becomes entitled to do so does not prevent Museums of History NSW from subsequently taking control of the record in exercise of its entitlement to do so. 32 Museums of History NSW can be required to take control of records in some cases (1) If Museums of History NSW is entitled to control of a State record and the record is more than 25 years old, the public office that has control of the record can request Museums of History NSW to take control of the record. (2) Museums of History NSW must comply with the request within a reasonable time after it is made unless— (a) Museums of History NSW and the public office enter into an agreement under which the public office is to keep control of the record, or (b) Museums of History NSW undertakes to pay the reasonable costs to be incurred by the public office in keeping control of the record and of fulfilling its obligations under section 14 (Obligation to maintain accessibility to equipment/technology dependent records) with respect to the record, or (c) the public office is, in respect of the record, in breach of guidelines issued under section 29 as to how State records are to be made available to Museums of History NSW, or (d) Museums of History NSW gives the public office permission to dispose of the record. (3) A request under this section can be made so as to relate to a series, group or class of records instead of being made in relation to an individual record. (4) Each public office must make arrangements with Museums of History NSW for, and provide information to Museums of History NSW in connection with, the transfer of State records under this section as prescribed by the regulations. 33 Entitlement to control does not affect other interests in State records The entitlement that Museums of History NSW has to control a State record under this Part does not extinguish, limit or otherwise affect any right or interest of any other person in th