Shopping cart

Your shopping cart is empty.
  1. Government Recordkeeping
  2. Advice and Resources
  3. FAQ: Can public offices dispose of records received in error and personal records?
FAQ: Can public offices dispose of records received in error and personal records?

TOC

The State Records Act regulates the destruction of State records. A State record is any record made or received in the course of the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office. Permission for destruction is usually given via a records retention and disposal authority or by normal administrative practice. We have received a number of enquiries over the years relating to the disposal of records received in error and personal records. Disposal in this context includes destruction or return of the originals to the sender.

Can public offices dispose of records received in error?

Yes. Examples of records received in error that we have been asked about include:

  • emails or attachments to emails that were sent in error
  • a signed petition sent to the wrong public office
  • private medical records that were not requested by a local health district.

Records received in error by a public office do not usually meet the definition of being a State record as they do not relate to the exercise of official functions. They can be returned or deleted from systems if requested, but a record should be made that the documents were received in error and what action was taken, and procedures should be put in place to deal with these instances. These sorts of scenarios can also be incorporated into the public offices' Normal Administrative Practice guidelines.

Can public offices disposed of personal records?

The answer depends on the context. Examples of personal records include the following:

Personal emails

Personal emails sent to the email system of a public office do not meet the definition of being a State record as they do not relate to official business. Please note that this does not mean that they are not subject to GIPAA (they are), or that they are personal property. If they are received on business systems they are the property of the public office. Guidance should be put in place to manage personal emails on official systems.

Personal records that are with public offices as the owner does not have the means to store them

The personal records of care leavers (birth certificates, greeting cards etc) would fall into this category as their movements within the out of home care system meant that their personal records often ended up on their case files for safe keeping. These records are personal records and can be returned to the owner.

Personal records submitted to an inquiry

​Personal records submitted to an inquiry form part of the records of the inquiry and are State records. However, these items can be scanned and the digital version retained as the official record. The original can then be returned if requested. This is consistent with practices such as those relating to original wills that are submitted to the Supreme Court as part of a probate application. The Court will return the original will (if requested) and retain a copy.

Records created by a public office about a person

Records created by public offices about a person in the course of official business are State records and are subject to the State Records Act, even when they are of a personal nature such as patient records. Although these records are about a person they are not owned by the person and cannot be disposed of before the minimum retention periods have been met in records retention and disposal authorities issued by NSW State Archives and Records. Section 25 of the Privacy and Personal Information Act permits the retention of personal information to comply with the State Records Act.

This is not an exhaustive list – please email govrec@records.nsw.gov.au if you need further advice.

GRK footer