Unlawful destruction of public records: the rules

Lawful and unlawful disposal

Destroying records is lawful when done under an approved schedule. US federal law makes the procedures in chapter 33 of title 44 the only route for disposal ⁵. Australia allows destruction of Commonwealth records only where a law requires it, where the National Archives permits it, or under normal administrative practice it has not disapproved ⁶. The UK Public Records Act 1958 provides for records not selected for preservation to be destroyed ⁷. Destruction outside these routes can be an offence.

United Kingdom

Section 77 of the Freedom of Information Act 2000 applies after a request has been made and where the requester would have been entitled to the information ¹. A person commits an offence if they alter, deface, block, erase, destroy or conceal a record with the intention of preventing disclosure ¹. It covers the authority, its staff and anyone under its direction ¹. The penalty on summary conviction is a fine not exceeding level 5 on the standard scale ¹. In England and Wales, a prosecution can be brought only by the regulator or by or with the consent of the Director of Public Prosecutions ¹.

United States

Under 44 U.S.C. § 3106, the head of each federal agency must notify the Archivist of any actual, impending or threatened unlawful removal, defacing, alteration or destruction of records, and seek their recovery with the Attorney General ³. If the agency head does not act within a reasonable time, the Archivist must ask the Attorney General to act and notify Congress ³.

Under 18 U.S.C. § 2071, a person who willfully and unlawfully conceals, removes, mutilates, obliterates or destroys a record filed in a public office faces a fine, up to three years in prison, or both ². A custodian of the record who does so forfeits their office and is disqualified from holding any federal office ².

Canada and India

Section 67.1 of Canada's Access to Information Act makes it an offence to destroy, mutilate, alter, falsify or conceal a record, or direct another person to do so, with intent to deny a right of access ⁴. On indictment the penalty is up to two years in prison, a fine up to $10,000, or both. On summary conviction it is up to six months, a fine up to $5,000, or both ⁴.

India's Right to Information Act lists destroying information that was the subject of a request among the grounds for a penalty on an information officer ⁸. The Information Commission may impose 250 rupees for each day, up to 25,000 rupees in total, after giving the officer a hearing ⁸. Persistent failures can lead to a recommendation for disciplinary action ⁸.

Summary of penalties