Retaining records for legal proceedings

Agencies are advised to retain and maintain records in an accessible form if the agency knows it is reasonably likely that they may be needed as evidence in a:

• current judicial proceeding (this includes a legal proceeding or inquiry); or
• a future judicial proceeding that will be commenced or will likely be commenced.

The statutory and common law requirement to suspend destruction, disposal and alteration of records (or 'legal hold') overrides any records authorities issued by the Archives and normal administrative practices, until the proceedings (including any appeals) are completed, or it is confirmed that the records are not required.

Our advice is general in nature. The issues surrounding legal proceedings are complex and your agency must seek legal advice for its specific circumstances and responsibilities, including if it is reasonably likely that your agency’s records may be needed as evidence in a current or future judicial proceeding in another jurisdiction.

Compliance

Under the Crimes Act 1914, it is an offence for a person to intentionally destroy or render illegible or undecipherable or incapable of identification a book, document or thing that they know is, or may be, required in evidence in a federal judicial proceeding in order to prevent it from being used as evidence.

Failure to comply with an order for discovery may be prejudicial to the public interest, the interests of the Commonwealth and/or other parties and may result in the agency being found in contempt of court.

Additionally, the Australian government requires that agencies act honestly and fairly as model litigants under the Legal Services Directions 2005, with possible sanctions for non-compliance.

Records management implications

The Archives recommends that your agency:

• consider its litigation risk profile and culture and develop processes for monitoring and identifying current and likely future judicial proceedings that may involve records controlled by your agency.

If proceedings go ahead we advise you to:

• scope and plan an agreed search strategy with your legal advisors. You may also be asked to provide a cost estimate for the discovery process
• identify where potentially relevant information is likely to be held and who the custodians are - including any records held by the Archives, by a third party (e.g. contractor, offsite service provider), in a database or business system, a legacy system, personal drives, email accounts, or on portable devices
• take action to suspend the destruction of any records that may relate to the proceedings until the proceedings (including any appeals) are completed, or it is confirmed that the records are not required
• document any notifications to suspend destruction, disposal and alteration of relevant records and any steps that your agency has implemented
• undertake and document agreed searches to identify all relevant records and associated metadata
• assemble details of any relevant records that have already been destroyed. Include details of the records, destruction and records authority that authorised the destruction
• provide access to relevant records in the agreed way and considering the format and significance of the records – for example:
  • records of long term value, including national archives – copies should be provided if copying will not damage the records
  • fragility – if copying will damage the records they can be made available by inspection
  • age – if records are in the open access period copies should be provided so that the public access obligations can be met
  • information privilege, confidentiality and/or security – records containing certain information (eg. relating to national security) can be redacted or masked to prevent this information being accessed
• put systems in place to track the movement of agency records required for judicial proceedings and ensure that all records can be located at the conclusion of the proceedings and any appeals
• review records that have been used as evidence in a judicial proceeding to see if they need to be re-sentenced under a different records authority class. Such records may need to be kept for a longer period.

There are additional records management requirements that your agency needs to implement to help ensure that its records are admissible as evidence.

Disposal freezes

Occasionally judicial proceedings with implications for records held by many agencies are identified. In such cases, the Archives may support compliance requirements by issuing a formal 'disposal freeze' to suspend the destruction of relevant records.

There are currently four disposal freezes in place covering records relating to:

• selected personnel and superannuation records concerning eligibility to join a Commonwealth superannuation scheme
• the Vietnam War
• atomic testing
• the rights and entitlements of Aboriginal and Torres Strait Islander people.

Agencies must monitor the Archives website for updates on disposal freezes.