Legislation

The PR Act applies to public officers, within a public office, who create or receive public records. PROV's e-learning module Recordkeeping Essentials provides a good insight into these definitions.

A record if defined as a document, as specified under the Evidence Act 2008 (Vic). This covers any record of information, and includes - 

• anything on which there is writing
• anything on which there are marks, figures, symbols, or perforations having a meaning for persons qualified to interpret them
• anything from which sounds, images or writings can be reproduced with or without the aid of anything else
• a map, plan, drawing or photograph.

This broad definition means that records include emails, social media posts, websites, audiovisual content, data and information held in business systems and databases.

A public record is:

• any record made or received by a public officer in the course of their duties
• any record made or received by a court or person acting judicially in Victoria.

Further information about what is considered a public record can be found on in the Is it a record? training module.

Public office means:

• any department, branch, or office of the government of Victoria
• any public statutory body corporate or unincorporated (this covers public entities that are created under legislation as a body corporate, or an unincorporated body)
• a state-owned enterprise within the meaning of the State Owned Enterprises Act 1992 (this includes a State Business Corporation, a State Owned Company and a State Body)
• any municipal council
• any other local governing body corporate or unincorporated
• a royal commission, whether established under the Inquiries Act 2014 (Vic) or under the prerogative of the Crown
• a board of inquiry or formal review established under the Inquiries Act 2014 (Vic)
• Gellung Warl.

Where a body is established purely by a Minister or the Governor-in-Council without enabling or umbrella legislation, then it may not be a public office. Examples include certain advisory groups or committees. Entities established under the Corporations Act 2001 (Cth) are also typically excluded.

If you are performing functions or providing services for the Victorian government or public sector and are in doubt if you meet the definition of a public office, we encourage you to seek further advice from your manager, legal team or PROV.

A public officer refers to any person employed in a public office. Whether a person is 'employed' will depend on the circumstances. Generally, employees are workers who:

• perform work under the direction and control of their employers who determine when, where and how they work
• have an expectation of regular or ongoing work

And have:

• the right to paid leave and income tax deducted by their employer.

In many cases, this can exclude independent contractors. Volunteers engaged by a public office are also not considered to be public officers. Specific recordkeeping roles and requirements need to be specified in contracts and agreements for these classes of people.

However, once a record created by a non-employee is received by a public officer, it becomes a public record. It may be advantageous for your organisation to consider whether records created or handled by non-employees should be managed with the assumption that they are likely to become public records.

The Freedom of Information Act 1982 (Vic) (FOI Act) sets out the rules governing requests by individuals for Victorian government information.

Further information about FOI can be found on the Office of the Victorian Information Commissioner website. 

PROV holds the permanent value records of Victorian government and public sector entities, including local government, once they no longer require ready access to them.

The PR Act requires some public records held at PROV to be withheld from public access for a period of time ("closed records"). This includes where the records contain personal information or for security and anti-terrorism reasons. However, closed records held by PROV (as well as public records still in the custody of government agencies) may be eligible to be accessed under FOI laws. 

The FOI Act gives you (or in the case that someone has died, their next of kin) rights to request public records about their personal affairs, or the activities of government. PROV refers all FOI requests it receives to the public office responsible for the records, who which manages and processes the application. 

As permitted under the PR Act, PROV issues special access to closed records, although this is usually only granted in exceptional circumstances. You can find out more about special access here.

For those seeking the personal records of adoptions, wards of the state/care leavers and/or are First Peoples community members, PROV has created specific resources and runs the Koorie Reference Service. Special support services for individuals and families seeking records are also available - see information about Victorian stolen generation services and our guide to accessing Victorian care leaver and adoptions records.

Under the FOI Act, individuals can lodge a written request for an amendment of a personal record to the government agency responsible for those records. Where a record relating to an individual's personal affairs is released to them (or if they are deceased, their next of kin) they can request the correction or amendment of any part of the document, if the information:

• is inaccurate
• is incomplete
• is out of date
• would give a misleading impression.

Where only an amendment of the record (either altering the record or making an additional notation) is sought, the responsible agency may do so directly. However, if any proposed correction or amendment would result in deleting or expunging the information, or destroying the record, written permission must first be secured by the government agency from the Keeper of Public Records at PROV.

The Privacy and Data Protection Act 2014 (Vic) (PDP Act) sets out how Victorian public sector organisations can collect, use, or disclose personal information. Further information about how agencies can manage their privacy and recordkeeping obligations can be found on the Privacy and Recordkeeping Obligations topic page.

The Victorian Data Sharing Act 2017 (Vic) promotes data sharing across government. It provides a basis for sharing and using data for policy making and service planning, design and delivery. This legislation is supported by the Victorian Public Sector Data Sharing Framework, which establishes the government's data-sharing agenda.

The Health Records Act 2001 (Vic) regulates the collection and handling of health information. It gives Victorians rights to access records about their health that are held by the private sector and establishes the Health Privacy Principles (HPPs), which apply to both the private and public sector. You can learn more about the health records framework here.

The PR Act continues to apply to health records held by public offices. This means that measures taken by public officers to comply with the health records framework must also comply with the PR Act, including PROV's mandatory recordkeeping standards. Where there is a conflict between the requirements, the PR Act requirements will override the Health Records Act requirements.

Public records under the control of the Keeper of Public Records (i.e. records transferred to PROV or held by an appointed Place of Deposit) are not subject to the health records framework.

The Commonwealth Copyright Act regulates copyright in Victoria. PROV is obliged to follow its requirements in regards to copyright, moral rights, and other regulations relating to intellectual property. PROV maintains a robust intellectual property policy to ensure copyright is appropriately managed. The rights and requirements associated with copyright can also impact researchers and third parties, as discussed below.

Copyright is a type of intellectual property right that is founded on a person's creative skill and labour. It is an intangible property right that gives its owners exclusive economic rights to do various things with copyrighted material. These include, for example, the right to publish, perform, communicate, and/or copy the material. Copyright lasts for a certain time period depending on the type of material and the legal personhood of the work's creator.

Moral rights are another form of intellectual property rights outlined under the Copyright Act 1968 (Cth), which protect the personal relationship between a creator and their work even if the creator no longer owns the work, or the copyright in the work.

As with all matters relating to possible legal liability, PROV encourages organisations to seek independent legal advice when appropriate. For general guidance, the Arts Law Centre of Australia has a useful information sheet. In relation to researchers and other third-parties, PROV maintains its own Copyright for researchers information page.

Under the Crimes Act 1958, it is a crime in Victoria to destroy documents or anything else of any kind likely to be used as evidence in legal proceedings. It is an offence where a person, with the intention or preventing the document being used in legal proceedings:

• a) destroys or conceals the document or renders the document illegible, undecipherable or incapable of identification, or they
• b) expressly, tacitly or impliedly authorise or permit another person to carry this out.

In addition, public records can only be destroyed or otherwise disposed of in accordance with Standards issued under section 12 of the Public Records Act 1973. More information about this can be found on PROV's Destruction topic page.