Public records required for legal proceedings and Right to Information requests

Information privacy

You need to consider information privacy when managing your public records, especially those that contain information about people.

You can get advice from the Office of the Information Commissioner Queensland and the Office of the Australian Information Commissioner.

You will need to make sure that appropriate access restrictions and permissions are applied to public records that contain sensitive or personal information.

Right to information requests

Any public records subject to an application for access under the Right to Information Act 2009, the Information Privacy Act 2009 or any other relevant Act must not be disposed until the action, and any applicable appeal period, has been completed.

See also the Office of the Information Commissioner's advice on Documents of a public authority and documents of a Minister.

Legal proceedings

A duty of care exists for public authorities to ensure public records that may foreseeably be needed as evidence in a judicial proceeding, including any legal action or a Commission of Inquiry, are not disposed.

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 public records. This will help to prevent them from accidentally being disposed. 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 public authority 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 public records (e.g. for an appeal).

Public 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 public records (if it has changed).

Public records will need to be kept for longer than the current minimum retention period if there is a likelihood they will be required again.

Before disposing public records, ensure that there are no further business or legal requirements for retaining them.