Major changes in the new Public Records Act

What you need to know

• The Public Records Act 2023 (Qld) (2023 Act) was passed by the Queensland Parliament in late November 2023 and will commence by proclamation on 5 December 2024.
• The 2023 Act has been legislated in response to an independent review of the Public Records Act 2002 (Qld) (2002 Act).

What you need to do

• Review your internal policies and procedures to ensure your recordkeeping practices align with the 2023 Act.
• Make sure your delegate who is responsible for access decisions is aware of these incoming changes.

The Public Records Act 2023 (Qld) (2023 Act) was passed by the Queensland Parliament in late November 2023 and will commence by proclamation on 5 December 2024. The 2023 Act has been legislated in response to an independent review of the Public Records Act 2002 (Qld) (2002 Act), and aims to achieve the following objectives:

• provide greater clarity on recordkeeping requirements;
• promote First Nations perspectives and advice;
• support contemporary digital public sector services;
• enhance the protection and preservation of public records, especially those of enduring value to Queensland; and
• acknowledge the value of information as an asset.¹

The 2023 Act has a three-year implementation program, which is already underway, focused on developing and consulting, implementing, and supporting and monitoring.²

Source: Public Records Act 2023, Information Session (27, 28 and 29 May and 3 and 4 June 2024)

Key Takeaways

The key changes introduced in the 2023 Act are:

• updating the recordkeeping framework to accommodate the digital age and protect public records by updating the definition of 'public records' and 'dispose' and introducing the concept of 'permanent value' records;
• incorporating First Nations perspectives by establishing a First Nations Advisory Group and amending the composition of the Public Records Review Committee to include two Indigenous members;
• expanding the powers of the State Archivist to issue protection notices, direct the transfer of at-risk records, restrict records beyond 100 years under regulation, conduct audits and investigations and issue mandatory standards;
• providing additional subcategories for restricted records, such as "cultural sensitive information" and medium and high sensitivity "personal information", each with a maximum restricted access period. It also stipulates a 35-business-day timeframe for public authorities to make decisions on access to restricted records, with the requirement to justify any denials or conditions to the State Archivist; and
• introducing a new offence for the 'attempted' disposal of a public record and adjusting the threshold for damaging a record to include records more than 25 years old or of permanent value. The maximum penalties remain the same, but the 2023 Act specifies a timeframe within which proceedings for breaches must commence.

Recordkeeping requirements

Exclusion of some public authorities

The 2023 Act allows for the exclusion of some entities (a commission of inquiry, an entity other than a parliamentary service, a government owned corporation and a State or local Government) as public authorities through regulation (section 8), enhancing the ability to determine which entities should be governed by the Act. This greater flexibility ensures that there is the ability to provide clear guidance (through regulation) in situations where the status of an entity as a public authority is ambiguous.

Definition of 'public record' reflects electronic mediums

A significant change in the 2023 Act is the modernisation of what is a record for the purposes of the Act.³ The Act consolidates the previously separate definitions of 'record' and 'public record' into a single, comprehensive definition of 'public record'. The updated definition in section 9 reflects the increasingly digital environment in which public records are created and stored, by encompassing records in any medium, whether digital or analogue, such as photographs, films, maps or databases.⁴ The definition also extends to information connected to a public record that identifies or contextualises the record, including metadata, logs, photocopies and emails.

Definition of dispose includes 'altering' a record

Public authorities also need to be cautious of the disposal of public records, as "dispose" has been more broadly defined. The definition of 'dispose' now includes to delete the record or alter or damage the record. The alteration or damage to the record must change how accurately an action or decision is shown in the record or otherwise affects the integrity of the record (Schedule 3).As discussed below under "Access to Restricted Records ", current disposal and retention schedules are to continue. With the broadened meaning of disposal, public authorities must also ensure that actions taken in relation to a public record are not an alteration to or damage of that record that would constitute a disposal under the applicable retention schedule. If so, it would need to be a disposal of a kind authorised by the State Archivist in the disposal and retention schedule that applies to the public authority and public record. Unlawful disposal of a public record will constitute an offence.

New management for records of 'permanent value'

The 2023 Act introduces the concept of 'permanent value' records in Schedule 3 along with associated obligations. Records of permanent value are those identified for retention under a disposal authorisation, or otherwise have enduring value.

For records that are over 25 years old or have permanent value:

• public authorities must notify the State Archivist if they are at risk of loss or damage in their custody (e.g. risk of flood or decommissioned digital records) (section 21). This enables the State Archivist to prepare for future record transfers and to assess storage requirements;⁵ and
• it is now an offence for any person to damage such records without legal authority or a reasonable excuse (section 22). Damage includes altering or neglecting a record that causes or is likely to cause harm (e.g. poor storage facilities or mishandling of the records).⁶

Additionally, if authorised by the State Archivist, public authorities may transfer permanent value records to the archives if they are no longer needed by the authority or they are at risk of loss or damage (section 25). However, the transfer may be refused if there is a lack of adequate storage space or if digital records cannot be accessed properly.⁷

Records must be accurate and include contextual information

The 2023 Act introduces additional responsibilities for public authorities to make public records that accurately show the actions or decisions of a public authority, including contextual information (section 14). These records are to be preserved by the public authority but may be disposed of in accordance with sections 20 and 23. This obligation to maintain complete and reliable records is intended to promote trust among organisations and the public by telling the full story.⁸

First Nations specific additions

The 2023 Act introduces new principles to guide public authorities on the proper handling and accessibility of public records to support Aboriginal people and Torres Strait Islander communities.⁹ We have seen a greater focus in recent years on how legislation can respond to, and recognise, the rights of Indigenous peoples in Australia.

The 2023 Act establishes a First Nations Advisory Group to advise the State Archivist about records relating to Aboriginal peoples and Torres Strait Islander peoples (section 64-66). This group will provide a mechanism for listening to First Nations perspectives and will support culturally sensitive making, managing and accessing of public records.¹⁰ Two indigenous members must be nominated by the Minister to serve on the Public Records Review Committee (section 50).

The 2023 Act also integrates First Nations principles in Schedule 1, Part 1. These principles, along with the general principles in part 2, are designed to guide public authorities in the creation, management, and provision of access to records.¹¹ These changes are significant as they will not only respect and acknowledge the cultural significance of public records for First Nations people, but will also ensure that their perspectives are integrated into record management practices.

New powers of State Archivist

The 2023 Act introduces several new powers for the State Archivist to improve record keeping management, inform strategic and operational decisions and monitor compliance.¹² The enhancements are detailed in the following table:

Access to Restricted Records

A restricted record is when a public record has a set period of time applied to it (i.e. a restricted access period), which prevents the record being accessible to the public, usually to protect information that is confidential, about public safety and personal or sensitive information. Under the 2023 Act, records in the archives custody will be considered open unless declared a regulated record or they contain restricted information (section 28). The restricted access periods for both of these is determined under Schedule 2 (section 29 and 30). The 2023 Act simplifies and slightly modifies restricted access periods, which were previously set out in section 16 of the 2002 Act. The key changes are as follows:

• Schedule 2 – increases alignment with the Information Privacy Act 2009 (Qld) (IP Act), by using the term "personal information" instead of "information about the personal affairs of an individual". It is worth noting that changes to the IP Act (which are expected to commence on 1 July 2025) will mean that obligations that an agency has under the IP Act to destroy or de-identify personal information will not apply if the information is contained in a public record.
• Schedule 2 – introduces new subcategories for restricted records and specifies minimum and maximum restricted access periods, such as:

• Max 100 years – for personal information of 'high sensitivity' (e.g. birth and adoption information, racial or ethnic origin, religious beliefs, or health information);
• Max 100 years – for culturally sensitivity information (e.g. information showing sacred sites and traditional customs or ceremonies);
• Max 65 years – for personal information classified as 'medium sensitivity' (e.g. an individual's relationships, employment or financial affairs);
• Max 30 years – for all other personal information;
• Min 30 years – for Cabinet records (made pre commencement of section 1 of Schedule 3 of the Right to Information Act 2009 (Qld)); and
• Min 20 years – for Cabinet records (made post commencement of section 2 of Schedule 3 of the Right to Information Act 2009 (Qld)).

• Section 38 – public authorities must decide on access to restricted records within 35 business days, and provide justification to the State Archivist if access is denied or conditioned. Any disagreements between public authorities and the State Archivist can be referred to the Public Records Review Committee for a final decision.²⁴

It is important to note that pre-existing restricted access periods, as well as any current disposal and retention schedules, will continue to apply.²⁵ Therefore, both records collected before and after the commencement of the 2023 Act, will have the same retention and disposal authorisations apply to them. Additionally, if an access application is made before the enactment of the 2023 Act, it is permissible for a subsequent request to be submitted following the commencement of the new legislation, at which point the revised procedures will be applicable.²⁶

Updated offence provisions

A comparison of updated offence provisions in the 2023 Act as compared to the 2002 Act is outlined in the below table.

Under section 83 of the 2023 Act, proceedings for breaches of sections 22 or 23 must commence within the later of:

(a) 1 year after the offence was allegedly committed; or

(b) 6 months after the offence comes to the complainant's knowledge, but within 3 years after the offence was allegedly committed.

Want to know more?

• New Queensland Privacy and RTI bill is here (19 October 2023)
  

Other authors: Miranda Jones (Graduate)

^{Endnotes :}

<sup>1. Queensland State Archives - Public Records Act 2023 Information Session June 2024 ('QSA Information Session 2024').
2. QSA Information Session 2024.
3. Public Records Act 2023 Explanatory Notes page 2 ('PRA 2023 Explanatory Notes').
4. PRA 2023 Explanatory Notes page 10.
5. PRA 2023 Explanatory Notes page 13.
6. QSA Information Session 2024.
7. PRA 2023 Explanatory Notes page 14.
8. PRA 2023 Explanatory Notes page 11.
9. QSA Information Session 2024.
10. QSA Information Session 2024.
11. QSA Information Session 2024.
12. QSA Information Session 2024.
13. PRA 2023 Explanatory Notes page 14.
14. QSA Information Session 2024.
15. PRA 2023 Explanatory Notes pages 6 and 18.
16. PRA 2023 Explanatory Notes pages 2 and 18.
17. QSA Information Session 2024 and PRA 2023 Explanatory Notes page 18.
18. PRA 2023 Explanatory Notes pages 19 and 23.
19. QSA Information Session 2024 and PRA 2023 Explanatory Notes page 19.
20. PRA 2023 Explanatory Notes page 6.
21. QSA Information Session 2024.
22. PRA 2023 Explanatory Notes page 23.
23. PRA 2023 Explanatory Notes page 5 .
24. PRA 2023 Explanatory Notes page 17.
25. QSA Information Session 2024.
26. QSA Information Session 2024.</sup>