Records required for legal proceedings and RTI requests
You need to consider information privacy when managing your records, especially those that contain information about people.
You will need to make sure that appropriate access restrictions and permissions are applied to records that contain sensitive or personal information.
Any records which are subject to a request for access under the Right to Information Act 2009, the Information Privacy Act 2009 or any other relevant Act must not be destroyed until the action, and any applicable appeal period, has been completed.
See also the Office of the Information Commissioner's advice on Documents of an agency and documents of a Minister.
A duty of care exists for agencies to ensure records that may foreseeably be needed as evidence in a judicial proceeding, including any legal action or a Commission of Inquiry, are not disposed of.
The destruction of evidence is an offence under the Criminal Code Act 1899 (s.129)—'for a person, who knowing something is or may be needed in evidence in a judicial proceeding, damages it with intent to stop it being used in evidence'.
Internal processes should be implemented to meet this obligation. You may need to consult with your legal or Right to Information area.
If it is reasonably expected that a judicial proceeding may occur or if your legal team requests it, an internal disposal freeze can be issued for certain records. This will help to prevent them from accidentally being destroyed. For example, you could expect that you will need to retain property files that refer to the use of asbestos in buildings.
Note: A preference for paper or electronic forms of evidence may apply. This will depend on the rules and procedures under which the relevant judicial or review body operates.
If your agency has operations in other States or overseas, ensure your risk assessment considers the applicable evidence laws in these jurisdictions.
Once legal proceedings have finished, consider the potential future legal need for the records (e.g. for an appeal).
Records do not need to be resentenced once legal proceedings have finished and disposal freezes have lifted; however, they may need to be reassessed and resentenced based on their disposal trigger and the significance of the records (if it has changed).
Records will need to be kept for longer than the current retention period if there is a likelihood they will be required again.
Before destroying records, ensure that there are no further business or legal requirements for retaining them.