If adequate arrangements for records are not made, both the public office's and the community's rights may be placed at risk though loss of records. Public offices must identify records issues early in the planning stage of privatisation. They must be aware of their responsibilities for managing State records and also notifying the private successor of their obligations regarding State records that may be temporarily in their custody.
This advice should be used when a public office or part of a public office is being privatised. It is not appropriate for other administrative changes to public offices:
- If the public office is becoming a State Owned Corporation (SOC), corporatisation is not the same as privatisation. This guidance does not apply to cases of corporatisation. A SOC is still subject to the full requirements of the State Records Act 1998. The advice in this guideline is relevant if the SOC is being transferred from state to private ownership.
- If the public office is outsourcing a function/s*, see Accountable Outsourcing: Managing the Records and Information Management Considerations of Outsourcing NSW Government Business.
- If the public office is moving records between locations, see Records in Transit and Help! We're Moving.
* Outsourcing refers to the delivery of public office functions or services by another body, either public or private, by arrangement. The public body still remains responsible for the function or service.
Contact State Records as soon as possible once privatisation becomes an issue. The scope and mechanisms of the privatisation process will be different in each case.
This section sets out the key recordkeeping issues associated with privatisation.
Transfer of ownership of State records
Records that were created by a NSW public office are State records and subject to the State Records Act 1998. Under s.21 of the Act, the transfer of ownership of State records requires the permission of State Records. Permission is given by approval of a retention and disposal authority. See Disposal of State records below.
If the transfer of ownership is not authorised, the private successor takes on the same responsibilities as a public office in regard to State records in its control. An exception to this can be made by another Act which expressly provides for that Act to override the State Records Act.
Protecting State records
Both the public office being privatised and any public office/s that takes on responsibility for the State records after privatisation have obligations to protect State records in their control.
Access to State records
There are a number of issues relating to access:
- the private successor may require access to records retained by the public office or in the custody of State Records
- the public office may require access to records transferred to the private successor
- if State records over 30 years old are temporarily in the custody of the private successor they may be required to provide public access to the records.
Public offices must dispose of State records only with the permission of State Records. This includes the transfer of ownership to a private successor and destruction of records. Permission is given through a retention and disposal authority prepared by the public office and approved by the Board of State Records.
This section sets out ways to manage the recordkeeping issues identified above.
Public office assigned responsibility for legacy records
When a whole public office is privatised, another public office is usually assigned responsibility for legacy issues relating to the privatised functions (the 'legacy public office'). This should include responsibility for maintaining State records that are not transferred to the private successor or to State Records. Responsibilities will include:
- monitoring the loan of any records to private successors
- advising private successors on record issues (e.g. disposal and access)
- storing and managing State records not transferred to the private successor, including managing public access.
Decisions regarding custody of State records
Decisions regarding the control of State records, particularly disposal and custody, should be documented in a retention and disposal authority. This should be developed and submitted to State Records for approval. When a public office is privatised, there are four main options relating to the ownership and control of State records:
- If records are identified as State archives, do not transfer the records to the private successor. If necessary, make copies available to the private successor.
- If approval is given to transfer State records to the private successor, the State records can be transferred.
- If records are loaned to a private successor, the public office remains responsible for the safekeeping of State records in the custody of another office. The public office must make arrangements with the private successor to ensure that their obligations are met.
- If the records are personnel records, do not transfer to the private successor. The public sector retains liabilities for its former employees. Provide copies of the records to the private successor as they will need these records to carry out their business.
State records may be in the custody of State Records, the public office or the private successor. A number of parties may have the need and the right to access the records. The table below sets out how this should be managed.
|The private successor requires access to State records in the control of the public office||The following arrangements can be made:
|The private successor requires access to State archives||If the records are over 30 years old and open to public access the private successor can access them at the State Records premises. If the records are not open to public access, the legacy public office must arrange and give permission for the private successor to view the records at State Records premises. The records may be transferred to the legacy public office but they should not leave their custody.|
|The public office requires access to records transferred to the private successor||An agreement on access arrangements should be made with the private successor at the time of privatisation. Document the terms of the agreement for future reference. If these arrangements are not made, the private successor may be entitled to refuse access.|
|Public access is requested to a State record temporarily in the custody of a private successor||If the record is
then the private successor is required to provide access under the provisions of the State Records Act. If any of the conditions above are not fulfilled, the private successor is not required to provide access.
If you become aware that your public office is to be privatised, this section sets out steps to follow to ensure that planning is carried out for records:
- Identify the records that will be affected.
- Identify the recordkeeping issues. These may need to be included in any legal agreements. This advice identifies general issues, but there are likely to be further issues specific to your circumstances.
- Notify State Records as soon as possible.
- Check whether all affected records are covered by a retention and disposal authority. This may be either a general or a functional retention and disposal authority.
- Draft a retention and disposal authority that identifies those records that are to be transferred to private ownership. This will be necessary even if there is existing disposal coverage for all affected records.
Note: Contact State Records for guidance.
- Apply retention and disposal authorities to existing records to reduce the volume and complexity of relocation ('sentencing').
- Make arrangements regarding transfer, access, and custody with the 'legacy public office' (if required) and the private successor.
- Arrange for the physical move of the records (if required).
For more information or advice contact State Records. We recommend you contact us as soon as possible once privatisation becomes a possibility.
Published 2003 / Revised February 2016