Privatising Public Offices

1. Privatisation and recordkeeping

If adequate arrangements for records are not made as part of a privatisation transaction, both the NSW Government and the community's rights may be placed at risk though loss of State records.

Records that are created by a NSW public office are State records and subject to the requirements of the State Records Act 1998. Both the public office being privatised, and any private entity that takes on responsibility for the State records after privatisation (section 8 of the Act), have obligations to protect State records in their control.

Public offices must identify records issues early in the planning stage of privatisation. They must be aware of their responsibilities for managing State records, and also notifying the private successor of their obligations regarding State records that may be transferred to their ownership or temporarily transferred to their custody.

This advice should be used when a public office or part of a public office is being privatised. It is not appropriate for other administrative changes to public offices, such as:

If the public office is becoming a State Owned Corporation (SOC), corporatisation is not the same as privatisation. This guidance does not apply to cases of corporatisation. A SOC is still subject to the full requirements of the State Records Act 1998. The advice in this guideline is relevant only if the SOC is being transferred from state to private ownership.
If the public office is outsourcing a function/s*, see Accountable Outsourcing: Managing the Records and Information Management Considerations of Outsourcing NSW Government Business.

* Outsourcing refers to the delivery of public office functions or services by another body, either public or private, by arrangement. The public body still remains responsible for the function or service.

2. When to contact State Records NSW

Public offices should contact State Records NSW as soon as possible in the early planning stages of privatisation.

Contact State Records NSW on email: govrec@staterecords.nsw.gov.au.

Please note that the scope and mechanisms of the privatisation process will be different in each case.

3. What are the recordkeeping issues?

The key recordkeeping issues which will need to be addressed are:

transfer of ownership of State records
protecting State records (Section 8 obligations)
access to State records, and
disposal of State records.

Each of these issues is discussed below.

Transfer of ownership of State records

Records that were created by a NSW public office are State records and subject to the requirements of the State Records Act 1998.

Under section 21 of the Act, the transfer of ownership or possession of State records to another organisation requires the permission of the Board of the State Records Authority NSW. Permission is given by approval of a submission and request for permission to transfer ownership. See Disposal of State records below.

If the privatisation transaction will involve the transfer of ownership of State records to a private sector entity (i.e. private successor), this permission should be obtained prior to the completion of the transaction. An exception to this can be made by another Act which expressly provides for that Act to override the State Records Act.

The transfer of ownership to a private sector entity does not extinguish nor remove the obligations of Section 8 of the State Records Act. The new owners (i.e. private successor) is obliged to ensure that the management, storage, protection and disposal of the records is in accordance with the State Records Act.

Protecting State records

Both the public office being privatised, and any private entity that takes on responsibility for the State records after privatisation (section 8), have obligations to protect State records in their control.

Access to State records

There are a number of issues relating to access to State records:

the private successor may require access to State records retained by the public office or in the custody of Museums of History NSW (i.e. in the State Archives Collection)
the public office, or other entities of NSW Government (e.g. the Auditor-General of NSW) may require access to State records which have been transferred to the private successor, and
if State records over 20 years old are temporarily in the custody of the private successor, then the private successor may be required to provide public access to the State records.

Disposal of State records

Public offices must dispose of State records only with the permission of State Records NSW. This includes the transfer of ownership to a private successor, the destruction of records and the transfer of records identified as State archives to the State Archives Collection.

State Records NSW provides permission for the transfer of ownership to a private successor through an authorised and approved retention and disposal authority based on information submitted by the public office with the request for permission to transfer ownership that outlines:

information concerning the transaction
records affected by the transaction
protection arrangements regarding retention, and
access to records to enable access by the State/former public office if required.

Retention and disposal authorities are approved by the Board of the State Records Authority NSW.

4. Managing the recordkeeping issues

Public office assigned responsibility for legacy records

When a whole public office is privatised, another public office is usually assigned responsibility for legacy issues relating to the privatised functions (the legacy public office, see sections 7(3) - 7(5) of the State Records Act).

Responsibilities for the legacy public office include:

monitoring any arrangements for the temporary custody of the State records with the private successor
ensuring that State records temporarily in the custody of the private successor are returned to the State of NSW
advising the private successor on record issues (e.g. disposal and access)
storing, maintaining, managing and protecting State records not transferred to the private successor (these are records in the control and responsibility of the legacy public office)
notify Museums of History NSW that the agency is the legacy public office for the privatised public office (contact Museums of History NSW on transfer@records.nsw.gov.au)
disposing of time-expired State records not required as State archives, transferring transfer of State records identified as State archives to the State Archives Collection, and enabling public access to State records.

Decisions regarding custody of State records

The public office being privatised will need to:

confirm the privatisation arrangements that will be required
identify what State records are required by the private successor to enable them to continue to carry on business or to undertake the function being privatised
identify what State records are required by the legacy public office to manage liabilities etc.
using retention and disposal authorities, identify all records required as State archives and ensure that they are transferred to the legacy public office, and
consult with State Records NSW to determine how best to manage the provision of State records to the private successor (e.g. provision of copies, transfer of State records etc.).

When making decisions about State records, the public office must take into account the following:

If copies of State records are to be provided to the private successor, then the public office (the legacy public office and the State of NSW) retains the original State records and continues to manage and store the State records. There is no authorisation required for provision of copies of State records to the private successor.
State records identified as State archives are not permitted to be transferred to the private successor of the public office. Copies of State records identified as State archives can be made available to the private successor.
State records required by the State for the management of ongoing liabilities are not permitted to be transferred to the private successor of the public office. Note: Personnel records are not transferred to the private successor. The State of NSW retains liabilities for its former employees. Copies of the State records can be provided to the private successor if required.
State records required by the private successor to enable them to continue to carry on business, undertake the function being privatised, and which are not required as State archives, may be transferred to the private successor following approval from the Board of the State Records Authority NSW.
If State records are in the temporary custody of the private successor, then the public office or the legacy public office that is responsible for the State records, must ensure that the private successor is aware of the responsibilities and obligations for the safekeeping of the State records, monitor the arrangements, and ensure that the State records are returned to the State of NSW (see section 11(2) and 11(3) of the State Records Act).

Please note: State records can only be transferred to the private successor if approval for the transfer of possession and ownership has been approved by the Board of the State Records Authority NSW.

Decisions regarding the control of State records, particularly disposal and custody, should be documented in a submission and formal request for permission to transfer ownership of State records. This submission should be developed in consultation with State Records NSW and then submitted for approval by the Board of the State Records Authority NSW.

Providing access to State records

State records may be in the custody of the legacy public office, the private successor, or the State Archives Collection.

A number of parties may have the need and the right to access the records. The table below sets out how this should be managed.

If..	Then..
The private successor requires access to State records in the control of the legacy public office	The following arrangements can be made: copies of the State records are provided to the private successor temporary custody of the State records is provided to the private successor. The legacy public office should ensure that there is an agreement for the temporary custody arrangement which sets requirements for safekeeping, monitoring of State records in the custody of the private successor, return of the State records to the legacy public office, and the provision of public access. if access is required to records required as State archives, arrangements should be made for the private successor to consult the State records at the office of the legacy public office or for copies to be provided.
The private successor requires access to State archives	If the State records are over 20 years old, open to public access and transferred to the State Archives Collection, the private successor can access them at Museums of History NSW. If the State records are not open to public access, but have been transferred to the State Archives Collection, the legacy public office must arrange and give permission for the private successor to view the State records at Museums of History NSW premises.
The legacy public office requires access to State records transferred to the private successor	An agreement on access arrangements should be made with the private successor at the time of privatisation. Document the terms of the agreement for future reference. If these arrangements are not made, the private successor may be entitled to refuse access.
Public access is requested to a State record temporarily in the custody of a private successor	If the State record is over 20 years old, AND has an 'open to public access' direction, AND ownership has not been transferred then the private successor is required to provide access under the provisions of the State Records Act.

5. In summary

If your public office is to be privatised, here is a summary list of steps for your planning:

Identify all the State records that will be affected, including those records identified as State archives.
Identify the recordkeeping issues. These may need to be included in any legal agreements. This advice identifies general issues, but there are likely to be further issues specific to the privatisation.
Notify State Records NSW (contact govrec@staterecords.nsw.gov.au) as soon as possible.
Check whether all affected State records are covered by a retention and disposal authority. This may be either a general or a functional retention and disposal authority.
Prepare a submission and request for permission to transfer ownership of State records. Contact State Records NSW (contact govrec@staterecords.nsw.gov.au) for guidance.
Apply retention and disposal authorities to existing State records to reduce the volume and complexity of relocation of records to the private successor or legacy public office (see 'sentencing').
Make arrangements regarding transfer, access, and custody of State records with the legacy public office and the private successor. Remember that records that are identified as State archives are not permitted to be transferred to the private successor.
Inform Museums of History NSW of any changes to access directions (contact transfer@records.nsw.gov.au).
Arrange for the physical move of the State records (if required).
Transfer records identified as State archives to the State Archives Collection (contact transfer@records.nsw.gov.au).

For more information

For more information or advice, contact State Records NSW.

Published 2003 / Revised February 2016 / Revised May 2019 / Updated November 2022 / Updated January 2024

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