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Custody, ownership and responsibility for records during a MOG or administrative change

1. Ownership and responsibility for records under the Public Records Act 2002

Public records are owned by the State of Queensland or the relevant local government. This does not change when custody and responsibility for the records is transferred to another agency or when a function is transferred or outsourced to a private entity after a machinery-of-government (MOG) or administrative change.

Public records may become private records if legislation or sale agreement includes the records of the function(s) involved. Contact Queensland State Archives if the ownership of public records is to be permanently transferred to a private entity.

Responsibility for records

There are 2 types of responsibility for records:

  • Legal responsibility–the agency legally responsible for the records as defined by legislation or legal instrument, and for complying with the obligations under the Public Records Act 2002.
  • Custody-based responsibility–the agency or organisation responsible for the day to day managing and preserving records in their custody (e.g. outsourcing, off-site storage), usually as specified in an agreement with the legally responsible agency.

Custody, ownership, and responsibility for public records is covered by sections 8, 9 and 15 of the Public Records Act 2002.

An agency legally responsible for records may also be a relevant or responsible public authority under the Act in certain circumstances.

2. Records in the custody of Queensland State Archives

When records are transferred to QSA, we become the records' custodians. We are responsible for the day-to-day care, storage, and preservation of the records. QSA does not become legally responsible for the records.

Under the Act, the agency legally responsible for records in QSA’s custody is a responsible public authority.

This agency remains responsible for setting restricted access periods, and granting access to restricted records, including RTI and information privacy requests.

The responsible public authority may change if there is a MOG or administrative change. Read about transferring responsibility for records to another agency below.

If legal responsibility does need to be transferred, you may need to arrange with QSA for the successor public authority to legally become the responsible public authority for the records. This may require a regulation under the Public Records Act 2002.

Note: Physical custody of records held at QSA does not change if legal responsibility for the records is transferred to another agency.

3. Transfer responsibility for records to another agency

Legal responsibility for records will transfer to another agency (the successor public authority) during a MOG or administrative change if:

  • 1 or more functions are transferred to another agency
  • a public authority ceases
  • an entire agency is privatised and the records are not sold as part of the agreement
  • 2 or more agencies are amalgamated or merged.

Note: Some legal responsibilities can be delegated to the organisation with custody of the records.

Responsibility will be transferred in different ways depending on the type of change.

Outsourcing

Your agency remains responsible for the outsourced function and all records documenting that function. That includes all records that you transfer to the service provider and those that they create or receive on your behalf.

You will need to determine the status of public records when outsourcing to find out what public records a service provider creates.

The service provider will be responsible for the day-to-day managing and preserving records in their custody.

Find out how to provide access to records needed by the service provider.

Transfer of function between authorities, or amalgamation or merger of multiple authorities

Under the Public Records Act 2002, responsibility for records must follow the associated function. That includes legacy records that relate to the function.

When functions are transferred or multiple agencies are amalgamated or merged together, responsibility for the associated records is automatically transferred.

This occurs when the legislation that has prompted the MOG or administrative change comes into force and the functions are transferred.

Functions cease or are privatised

If one or more of your functions ceases or is privatised, your agency remains responsible for that function’s records.

Note: This applies to all records created before a privatisation and records temporarily on loan to a private entity. You are not responsible for records created by a private entity after the privatisation.

Find out how to provide access to public records for private organisations.

Closure or privatisation of an entire public authority

If your agency ceases to exist or is privatised, and some or all of its functions are not continued by the government, your agency’s records must be given to another public authority (the successor public authority).

Responsibility may be transferred in the legislation enabling the change or a regulation under the Public Records Act 2002.

4. Regulations under the Public Records Act 2002

A regulation under the Public Records Act 2002 is used to assign an agency as the relevant public authority for the records of an agency that has ceased to exist or is privatised. The records must also relate to a function that is no longer carried out by the government and are not in the custody of Queensland State Archives.

A regulation is not required if the legislation or legal instrument enabling the change assigns responsibility for the records.

A regulation will also be required to assign the successor agency as the responsible public authority for the records in the custody of Queensland State Archives.

Responsibility transfers as soon as the MOG change takes effect even if the regulation hasn’t been enacted yet.

Note: Regulations do not refer to specific agencies by name but instead assign responsibility to the agency that administered the relevant legislation. This allows for the responsibility to remain with the agency or transfer to another agency in future if there is another MOG change.

Contact QSA if you think a regulation under the Public Records Act 2002 is required to assign a relevant or responsible public authority as outlined above.

Responsibility transfers as soon as the MOG or administrative change takes effect even if the regulation hasn’t been enacted yet.

5. Identifying the successor public authority

The successor (or receiving) public authority is the agency:

  • taking on function(s) (excludes outsourcing)
  • defined by legislation as the successor public authority
    or
  • the public authority that has agreed to be responsible for the records.

The successor takes on all the same responsibilities for the inherited records that they have for their own records. This happens as soon as the MOG or administrative change takes effect, even if the legislation or legal instrument (e.g. regulation) has not been enacted or come into force yet.

Find out more about the successor public authority and what they need to do.

If the successor public authority is not identified, the agency best suited to take responsibility for the records will need to be determined based on advice from Queensland Treasury, the Department of Premier and Cabinet, your parent department (if relevant) and/or Queensland State Archives.

The type of change, the records involved, and other factors (e.g. if a separation of powers needs to be maintained) will need to be taken into account when deciding on an appropriate successor.

The successor public authority and the inherited responsibilities are usually assigned through a regulation under the Public Records Act 2002.

6. Determine status of records when outsourcing or using a shared service provider

Service providers in outsourcing arrangements will create and receive public records on your agency’s behalf.

You need to determine:

  • what records are created and/or received on your behalf by the service provider
  • which records are your agency's public records and which belong to the service provider
  • who is responsible for those records
  • how public records should be managed.

This will depend on who created the records and why.

Use the status of records during outsourcing cheat sheet (PDF, 239 KB) to help you.

Note: A Non-Government Organisation (NGO) receiving a grant to perform a public function on your behalf can be treated as a service provider. Find out more about records of grants and grant funding.

7. Sell or give records to a private entity

Public records have value to the state and due consideration should be taken before they are sold or given to the private sector.

Find out when and if you can sell records to a private entity.

Find out how to provide access to public records for private organisations.

8. Custody and responsibility arrangements

You may need to agree on custody, ownership and responsibility for records if:

  • you are outsourcing a function or activity–see status of public records when outsourcing
  • you are involved in a privatisation
  • some or all digital records in business or IT systems need to be transferred to another organisation
  • multiple organisations need access to the same records
  • records cannot be transferred even though legal responsibility for them will be
  • the responsibility for records is unclear (e.g. associated administration records not identifiable as belonging to a particular core function)
  • other factors need to be considered (e.g. where a separation of powers needs to be maintained, access restrictions in place).

Consider including this in your formal agreement. If a function is being transferred to another public authority, legal responsibility for the records will be transferred even if the records are not. This includes responsibility for endorsing the disposal of records, allowing access to records, and setting restricted access periods.