Estrays: recovering State records that have strayed

What are estrays?

Estrays can include:

• records in private ownership or possession
• records held by local history groups or in libraries and museums.

Records transferred to the custody of a third party, such as a storage provider, but which remain under the control of the organisation are not estrays.

Estrays may have different values. Some may be State archives. Others may have legal, business or financial value to the organisation that created them or contain confidential or sensitive information. Electronic records can also be estrays.

The State Records Act 1998 provides for the recovery of estrays back to official control.

Ensuring records don't become estrays

Ideally, no State records should stray from the control of the public office responsible for their protection and safe custody. All employees in public sector organisations can help to ensure State records remain in official control by:

• capturing and keeping records in recordkeeping systems, e.g. attaching documents to files
• making sure other employees do not take records with them when they retire or leave the service of the organisation
• not giving records away, e.g. to local history groups
• taking all records out of buildings, storage units and computers when premises and equipment are vacated or sold.

Each public office should clearly identify in policy and procedures that its records must not be given away. This applies to records inherited from predecessor organisations.

Why are estrays recovered?

Museums of History NSW has a unique role in safeguarding State records. Where estrays have value as State archives it is important to recover them so that:

• all citizens can have access to important State records
• the records can be better preserved by being stored in appropriate, climate controlled conditions
• the records can be copied (microfilm or digital copying) to make the records accessible whilst protecting fragile originals from damage caused by handling.

Other estrays are recovered because they have ongoing business, legal or financial value to the organisation that created them or they contain confidential or sensitive personal information that must be protected.

It is not always possible or desirable to recover every estray.

Recovering estrays

The process for recovering estrays varies according to the significance of the records.

• Recovering estrays of limited value: Records that are not required as State archives and which have no ongoing value to a public office may have sometimes been given or loaned to a third party such as a local history group. In these cases it may not be necessary to take physical custody of the records. Instead, a public office could exercise its control over the records and permit custody to remain with the third party. These records, however, remain subject to the management controls required of all other State records. It is wise for a public office to put in place formal agreements with any third parties having custody of their records. Such agreements should be properly documented on file.
• Recovering estrays of business or legal value or containing sensitive information: Estrays with ongoing business or legal value, or containing confidential or personal information, should be recovered by a public office. In the first instance public offices should seek to recover estrays through negotiation with the current owner or custodian. Sometimes legal action may need to be taken. Museums of History NSW can assist or direct public offices to take action to recover estrays.
• Recovering archival estrays: Museums of History NSW focuses its efforts on recovering those estrays which are the most valuable and significant to the State. They include records dating from the colonial period, those that are unique in some way or those that may be the only surviving records of a particular government function. They may be required as State archives in an approved retention and disposal authority or have otherwise been assessed as having archival value. Museums of History NSW usually recovers archival estrays on behalf of a public office.

Museums of History NSW is given powers under the State Records Act to:

• inspect records believed to be estrays
• direct a person not to sell, remove or dispose of an estray
• take action to recover an estray in a court of competent jurisdiction
• direct a person to hand over an estray pending legal proceedings
• make agreements with persons in possession of estrays for the preservation, security and confidentiality of the record
• acquire an estray by purchase, gift or bequest
• act outside NSW for the protection and recovery of estrays.

First published 1999 / Revised February 2004 / Revised June 2009 / Updated November 2022