FOI Review Issue No. 65

Public Records- current issues in control and access prior to privatisation

Helen Townley and Rick Snell

This article is an attempt to explore a number of key questions that arise in association with the moves toward privatisation and outsourcing of government functions. Discussions involve how far the meaning of possession extends and whether an agency may waive an immediate right to possession. It is stated that physical possession is not necessarily required, but that a right to immediate possession, or "constructive possession" may be sufficient. Further, the NSW Ombudsman Guidelines make it clear to agencies that "documents held" include documents temporarily held by an agency. Secondly, it appears that a government agency may waive a contractual right to immediate possession of the documents (Mildenhall v Department of Premier and Cabinet (1995) 8 VAR 478). Finally, the 3 scenarios of email, official documents in a private location and private documents in an official location are discussed as examples illustrating the difficulties associated with the practical application of the "possession" requirement within the changing public sector environment.

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