Producing records as evidence in legal proceedings

The purpose of this advice is to identify the issues involved in producing records (1) relevant to a legal proceeding or possible legal proceeding.

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Recommendation

As much as possible, agencies required to produce documents as evidence in legal proceedings, or possible legal proceedings, should endeavour to have copies of the documents accepted in lieu of originals.

It is essential, however, that legal advice is obtained whenever a document or a copy of a document may be required for any legal purpose. Agencies should act in accordance with their legal advice with respect to particular matters or documents. A failure to do so could be prejudicial to the interests of the Territory. Any concerns about particular legal advice received by an agency should be raised with the Director of Litigation at the Solicitor for the Northern Territory.

Explanatory information

Documents or copies of documents may be required for legal purposes in several contexts. They may be required to obtain legal advice on behalf of an agency, for the purposes of ‘discovery’ to other parties involved in litigation in which an agency is a party, or for production in court by an agency whether or not the agency is a party to the proceeding. In any situation legal advice must be obtained.

The Solicitor for the Northern Territory has advised that there are no definable legal situations or processes that require that original documents must be released to a court of the Northern Territory (NT) (2). It is almost always up to the discretion of the court as to whether the production of original documents is required or whether a copy would suffice. From a record keeping perspective, it is desirable for copies to be made available in lieu of the originals and in most cases this may be acceptable.

However, there will be occasions where only the original documents will be suitable for legal proceedings. If so, the original documents should be copied before being released from agency custody. Legal advisers should be informed that the agency is undertaking this process and should take this into consideration if there is a time constraint imposed upon the production of the documents as evidence.

Original documents should always be returned to agencies once they are no longer required, although in some cases they may be required for many years. Agencies should ensure their legal advisers arrange for the return of original documents once they are no longer required (3). The copied documents should be treated as the originals in the interim.

Other parties often request that documents be delivered to a court by way of a ‘summons to produce’. It is usually necessary to produce the original documents requested. Some documents requested may be privileged or subject to public interest immunity. Such documents may still have to be delivered to the court, but with a request that they not be disclosed to any party in the proceeding. Again, it is essential that these complex issues are dealt with by an agency's legal adviser. The inadvertent disclosure of a privileged document may harm the Territory's interests.

In all cases, in order to increase the probability of records - or copies of records - being accepted as good evidence for legal proceedings, a regulatory framework for the creation, maintenance and handling of all formats of records needs to be in place. The NT Government Records Management Standards provide such a framework, and any agency complying with these standards can be seen to be satisfying the requirements of relevant legislation.

Acknowledgements

The NT Archives Service would like to acknowledge the assistance of the following in producing this advice:

  • Department of Corporate and Information Services
  • Power and Water Corporation
  • Solicitor for the Northern Territory
  • Information Commissioner

More information

The NT Records Service is responsible for developing, managing and implementing Records Management Standards for the NT Government. The regulatory basis for records management is the Information Act 2002, Part 9 - Records and Archives Management.

For further information please contact:

Records Policy Unit
ICT Policy and Strategy Section
Department of Corporate and Information Services
Email: ntg.recordspolicy@nt.gov.au

Footnotes

  1. For the purpose of this statement, 'document' when quoted in legislation can be taken to mean 'record'.
  2. Letter from the Solicitor for the Northern Territory to the Director, NT Archives Service, Release of original records of NT Government agency business for legal purposes, 16 July 2001.
  3. Information Act 2002, s 133(2).

Last updated: 29 July 2019

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