Recordkeeping legislation and compliance

Learn about the legislation and compliance requirements for recordkeeping in NSW, including key provisions under the State Records Act 1998 and standards for public offices.

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Legislation

The State Records Act 1998 commenced on 1 January 1999, Part 4 (concerned with transfer of archives to), commenced in July 1999. The Act replaced the Archives Act 1960. Key records management provisions of the Act require public offices to:

make and keep records that fully and accurately document their business activities
establish and maintain a records management program in conformity with standards and codes of best practice approved by State Records NSW
ensure that records, information and data are stored in conditions appropriate to their format and preservation requirements
ensure that equipment- and technology-dependent records are accessible for as long as they required.

Other key parts of the Act include provisions governing the disposal of records, a statutory basis for a right of public access to records more than 20 years old, and the transfer of records required as State archives to the custody and control of Museums of History NSW.

Changes to the State Records Act

The Museums of History NSW Act 2022 amended the State Records Act and established Museums of History NSW as the agency responsible for the maintenance and care of the State’s archival collection. State Records NSW remains the agency responsible for the regulation and monitoring of government recordkeeping in NSW.

The Act commenced on 31 December 2022. Elements of Part 4 concerning the transfer of State archives and open access, commenced on 1 January 2024.

This table provides a breakdown of the shared responsibility for administration of the State Records Act.

State Records Act	Administered by
Part 1 - Preliminary Part 1 of the Act defines key terms and concepts, and the application of the Act. The Act applies to public sector bodies referred to as 'public offices' and the records they generate as 'State records'. Public offices include, but are not limited to: any department or office of the government of NSW any public statutory body, corporate or unincorporated State owned corporations local government the public health system, and universities.	State Records NSW For more information visit Public offices under the Act.
Part 2 - Records management Part 2 of the Act sets out the records management responsibilities of public offices. The Act requires CEOs of public offices to ensure compliance with the Act and public offices to: make and keep full and accurate records institute a records management program under standards and codes of best practice for records management. ensure the safe custody and proper preservation of State records maintain accessibility to digital and other technology dependent records plan with State Records NSW for monitoring and reporting on the implementation of the public office's records management program assess its recordkeeping processes and records management program, and to report the findings to State Records NSW, when directed to do so.	State Records NSW For more guidance on records management visit Recordkeeping in government
Part 3 - Protection of State records Part 3 of the Act deals with protection of State records. A State record must be protected from neglect, unauthorised loss, destruction, damage, alteration or transfer. Under the Act the disposal, alteration or transfer of State records is only permitted in certain circumstances, notably: approval by State Records NSW via legislation under which a public office operates, or through 'normal administrative practice' as defined in the State Records Regulation 2024.	State Records NSW For more detailed information visit About the State Records Regulation 2024 and normal administrative practice
Part 4 - Control of State records Part 4 of the Act ensures that records of continuing value that are no longer in use by the public office are controlled and properly managed as State archives. Under the Act, records more than 25 years old are assumed to be no longer in use for official purposes in the public office. If a record older than 25 years is still being used by a public office, that organisation must make a still in use determination and notify Museums of History NSW as soon as practicable. Note that a record may be no longer in use even if it is less than 25 years old. A public office can pass records to Museums of History NSW’s control either by transferring them to its custody or by entering an agreement whereby some other body (which may be a public office) has custody.	Museums of History NSW For more detailed information visit Transferring state archives
Part 5 - Recovery of State records Part 5 of the Act ensures the protection of estrays. Estrays are State records which have been abandoned, removed from or transferred out of the control of the responsible public office without lawful authority. The Act provides Museums of History NSW with power to inspect and provide direction to protect or recover estrays both within and outside of New South Wales. The Act also allows interstate government archives to recover similar interstate material within New South Wales.	Museums of History NSW For more information about estrays visit Donating records
Part 6 - Public access to State records Part 6 of the Act ensures that there is a balance between the public’s entitlement to access State records and protection of sensitive and confidential information for an appropriate period. The Act promotes the principle of open government by making all records open to the public by default after 20 years. If public offices determine that certain records should be closed to the public for longer than 20 years, they must provide a closed to public access direction to Museums of History NSW. Museums of History NSW can request a public office to have an access direction reviewed by the Minister responsible for the public office.	Museums of History NSW For more information about Access Directions visit Public access to the records
Part 7 - The State Records Authority of NSW Part 7 of the Act establishes State Records Authority NSW and defines its principal functions. The Act also establishes the Board of State Records NSW and provides information on its composition and functions.	State Records NSW For more information visit State Records NSW and State Records NSW Board.
Part 8 - Miscellaneous Part 8 comprises a number of miscellaneous provisions such as: duty of confidentiality copyright in State archives proceedings for offences.

State Records Act

Administered by

Part 1 - Preliminary

Part 1 of the Act defines key terms and concepts, and the application of the Act.

The Act applies to public sector bodies referred to as 'public offices' and the records they generate as 'State records'.

Public offices include, but are not limited to:

any department or office of the government of NSW
any public statutory body, corporate or unincorporated
State owned corporations
local government
the public health system, and
universities.

State Records NSW

For more information visit Public offices under the Act.

Part 2 - Records management

Part 2 of the Act sets out the records management responsibilities of public offices.

The Act requires CEOs of public offices to ensure compliance with the Act and public offices to:

make and keep full and accurate records
institute a records management program under standards and codes of best practice for records management.
ensure the safe custody and proper preservation of State records
maintain accessibility to digital and other technology dependent records
plan with State Records NSW for monitoring and reporting on the implementation of the public office's records management program

assess its recordkeeping processes and records management program, and to report the findings to State Records NSW, when directed to do so.

State Records NSW

For more guidance on records management visit Recordkeeping in government

Part 3 - Protection of State records

Part 3 of the Act deals with protection of State records. A State record must be protected from neglect, unauthorised loss, destruction, damage, alteration or transfer.

Under the Act the disposal, alteration or transfer of State records is only permitted in certain circumstances, notably:

approval by State Records NSW
via legislation under which a public office operates, or
through 'normal administrative practice' as defined in the State Records Regulation 2024.

State Records NSW

For more detailed information visit About the State Records Regulation 2024 and normal administrative practice

Part 4 - Control of State records

Part 4 of the Act ensures that records of continuing value that are no longer in use by the public office are controlled and properly managed as State archives.

Under the Act, records more than 25 years old are assumed to be no longer in use for official purposes in the public office.

If a record older than 25 years is still being used by a public office, that organisation must make a still in use determination and notify Museums of History NSW as soon as practicable.

Note that a record may be no longer in use even if it is less than 25 years old.

A public office can pass records to Museums of History NSW’s control either by transferring them to its custody or by entering an agreement whereby some other body (which may be a public office) has custody.

Museums of History NSW

For more detailed information visit Transferring state archives

Part 5 - Recovery of State records

Part 5 of the Act ensures the protection of estrays. Estrays are State records which have been abandoned, removed from or transferred out of the control of the responsible public office without lawful authority.

The Act provides Museums of History NSW with power to inspect and provide direction to protect or recover estrays both within and outside of New South Wales. The Act also allows interstate government archives to recover similar interstate material within New South Wales.

Museums of History NSW

For more information about estrays visit Donating records

Part 6 - Public access to State records

Part 6 of the Act ensures that there is a balance between the public’s entitlement to access State records and protection of sensitive and confidential information for an appropriate period.

The Act promotes the principle of open government by making all records open to the public by default after 20 years.

If public offices determine that certain records should be closed to the public for longer than 20 years, they must provide a closed to public access direction to Museums of History NSW.

Museums of History NSW can request a public office to have an access direction reviewed by the Minister responsible for the public office.

Museums of History NSW

For more information about Access Directions visit Public access to the records

Part 7 - The State Records Authority of NSW

Part 7 of the Act establishes State Records Authority NSW and defines its principal functions.

The Act also establishes the Board of State Records NSW and provides information on its composition and functions.

State Records NSW

For more information visit State Records NSW and State Records NSW Board.

Part 8 - Miscellaneous

Part 8 comprises a number of miscellaneous provisions such as:

duty of confidentiality
copyright in State archives
proceedings for offences.

Compliance and key obligations

Compliance

State Records NSW has developed a suite of products including policies, standards, guidance and resources for application across government to assist public offices and officials meet the policy objectives and compliance requirements of the State Records Act.

The State Records Act 1998 places a number of requirements on public offices regarding monitoring activities. Under section 12(4) of the Act, public offices are required to report on its records management program under the Recordkeeping Monitoring Exercise (RME) which is held biennially. Visit How State Records NSW monitors compliance to learn more.

Key obligations

The State Records Act 1998 sets out the obligations of public offices, chief executives and public officials. Below are key obligations as set out in the Act.

For chief executives

Section 10: Chief executives to ensure compliance with the Act

The chief executive of each public office has a duty to ensure that the public office complies with the requirements of this Act and the regulations and that the requirements of this Act and the regulations with respect to State records that the public office is responsible for are complied with.

Learn more about recordkeeping for chief executives.

For public offices and public officials

Section 11: Obligation to protect records

Each public office must ensure the safe custody and proper preservation of the State records that it has control of.
A public office must ensure the arrangements under which a State record that it has control of but that is in the possession or custody of some other person include arrangements for the safekeeping, proper preservation and due return of the record.
A public office must take all reasonable steps to recover a State record for which the public office is responsible and that the public office does not have control of, unless the record is under the control of Museums of History NSW or of some other person with lawful authority.

Section 12: Records management obligations

Each public office must make and keep full and accurate records of the activities of the office.
Each public office must establish and maintain a records management program for the public office in conformity with standards and codes of best practice from time to time approved under section 13.
The Authority may permit such departures from the requirements of the standards and codes as it considers necessary or desirable to accommodate the particular needs of a public office or class of public offices.
Each public office must make arrangements with the Authority for the monitoring by the Authority of the public office’s records management program and must report to the Authority, in accordance with arrangements made with the Authority, on the implementation of the public office’s records management program.
The Authority may issue a notice to a public office requiring the public office to, as directed by the notice –
- (a) conduct an assessment of its record-keeping processes and records management program, and
- (b) provide the Authority with a report on the findings arising from the assessment.

Section 14: Obligation to maintain accessibility to equipment/technology dependent records

If a record is in such a form that information can only be produced or made available from it by means of the use of particular equipment or information technology (such as computer software), the public office responsible for the record must take such action as may be necessary to ensure that the information remains able to be produced or made available.

Section 21: Protection measures

A person must not:
- (a) abandon or dispose of a State record, or
- (b) transfer or offer to transfer, or be a party to arrangements for the transfer of, the possession or ownership of a State record, or
- (c) take or send a State record out of New South Wales, or
- (d) damage or alter a State record,
- (e) neglect a State record in a way that causes or is likely to cause damage to the State record.
None of the following is a contravention of this section:
- (a) anything done in accordance with normal administrative practice in a public office (as provided by section 22)
- (b) anything that is authorised or required to be done by or under this Act, or by or under a provision of any other Act that is prescribed by the regulations as being an exception to this Part
- (c) anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority either generally or in a particular case or class of cases (including any practice or procedure approved of under any standards and code of best practice for records management formulated by the Authority).

Learn more about recordkeeping responsibilities

Other legislation, rules and guidelines

It is important to be aware of the many other sources for 'rules' affecting recordkeeping in the NSW public sector.

Whole-of-Government policies and directives issued by the Premier's Department, Public Service Commission and Treasury can also establish requirements with respect to the making, keeping and management of records.

Some organisations, sectors or areas of activity (such as work health and safety) may be subject to other legislative instruments, industry standards, codes and guidelines established by relevant oversight organisations (e.g. the Office of Local Government has specific guidelines about council minutes and meetings).

Guidelines produced by other Government organisations such as the NSW Independent Commission Against Corruption, NSW Ombudsman, Cyber Security NSW, Digital NSW and the Information and Privacy Commission NSW are additional useful resources.

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