Requests to Produce Documents: Subpoenas, Summons, Statutory notices and Orders

Version: 2.0
Last Amendment: 9 July 2019
Approved by: Executive Committee
Policy owner/sponsor: Director, Operations & Infrastructure and Director, Digital Experience & CIO
Policy contact officer: Senior Advisor, Strategy and Government Relations
Date approved: 30 July 2022

Policy statement

This policy sets out the approach of State Library of New South Wales (the Library) for dealing with and responding to subpoenas (and other legal instruments) seeking access to library collection material and/or corporate information for legal proceedings. Reference to subpoenas in this policy also includes reference to other legal instruments to produce documentation, such as statutory notices to produce and orders.

The Library is under a legal obligation to respond to any subpoena served upon it or its staff. However, it is a fundamental premise of this policy that, to protect the Library’s collection in accordance with the Library Act 1939, no library collection materials of the State Library should leave the Library’s premises for copying. Copies of material (certified copies if required) will be organised by the Library and provided to the court in response to subpoenas.

Target audience

This policy applies to anyone who intends to serve a subpoena on the Library or its staff from the following categories:

1. subpoenas served on the Library for access to collection material;

2. subpoenas served on the Library for access to corporate information; and

3. requests received from third party organisations responding to subpoenas served upon them, who have deposited material and/or records with the Library and for whom the Library holds material sought in the subpoena (referred to in this policy as ‘third party subpoenas’).

Operational requirements

1. All subpoenas should be served upon the State Librarian. Any enquiry regarding the service of subpoenas should be directed to the State Librarian’s office. If the State Librarian is not available, subpoenas should be served upon the Director, Operations and Infrastructure & CFO or (failing that) upon a member of the Library Executive.

2. Once served, all subpoenas should be referred to the Business Information Lead for registration, assessment, referral for response and monitoring. Subpoenas will be dealt with according to the procedures associated with this policy.

3. Given the State Librarian’s and Library Council’s responsibility to protect and maintain the Library’s significant collections, collection materials cannot be taken off premises in response to subpoenas for tender or copying. The Library will facilitate viewing access to the requested material and arrange copying (certified copies if required) of requested files or materials in-house for tender as evidence, in accordance with copyright laws and regulations. Any existing access restrictions on collection material will be waived as a result of the subpoena.
a) Library materials may be inspected by legal representatives or court officials on Library premises by arrangement, in accordance with the Library’s public access procedures.
b) The Library will make arrangements for the materials covered by the subpoena to be copied so that the documents can be provided to the court or tribunal.

Conduct money

4. Conduct money of $50 should accompany any subpoena served on the Library, to cover initial costs of responding to the subpoena. Compliance costs

5. As collection material cannot be taken from the Library, the Library will provide copies of the material covered by the subpoena in-house on a cost recovery basis (i.e. compliance costs). The purpose of compliance costs is to provide a reasonable recompense for the cost to the Library of complying with a subpoena and is charged on a cost recovery basis only. These costs include staff time in locating and retrieval of records or documents, copying, and delivery of the documents to the appropriate Court or Tribunal. Certified copies will be provided if required.

6. A cost estimate will be provided by the Library as soon as practicable, once the required material has been agreed and confirmed.

7. The Library requires a minimum of 21 days to assess and respond to the subpoena and identify documents that fall within the scope of the subpoena. Depending on the size of the request or amount of material covered by the subpoena, the Library may seek to:
a) negotiate an extension to the timeframe(s) set out in the subpoena; and/or
b) request the Issuing Party involved to review the material and refine/narrow the subpoena request, to potentially reduce the amount of material required.

8. The Library reserves the right to seek to set aside a subpoena which is oppressive or appears to be an inquiry without any clearly defined purpose in the hope of discovering useful information (a ‘fishing expedition’), or on such other grounds as the Library considers appropriate.

Third Party subpoenas

Requests for material under third party subpoenas (not served directly on the Library) will be dealt with under the Library's existing procedures for copying and access to collection material: Printing and Copying. However, they may need to be prioritised to meet the timeframe of the subpoena (within reasonable expectations). Any known third-party subpoena related request for access to Library collection material or corporate information should be notified to the Business Information Lead for registration and tracking.

Responsibilities

1. The State Librarian and the Director, Operations and Infrastructure & CFO, and (in their absence), the other members of the Executive, are the Library officers upon whom subpoenas relating to the State Library should be served.

2. The State Librarian and the Director, Operations and Infrastructure & CFO are responsible for the Library’s compliance with legal and legislative provisions and other compliance requirements relating to this policy.

3. The Business Information Lead is responsible for registering and tracking all subpoenas served upon the Library or referred to the Library (including third party subpoenas) and facilitating discovery of, access to and copying of corporate information.

4. The Executive Director, Library & Information Services and Dixson Librarian will facilitate the Library’s response to requests for access to and copying of specified collection materials.

5. The Manager, Information & Access will also facilitate access to and copying of collection materials.

6. Managers and supervisors are responsible for managing processes relevant to this policy and communicating this policy to staff, especially in relation to the service of subpoenas upon Library staff.

7. Staff are responsible for understanding and complying with this policy.

8. The State Librarian and the Director, Operations and Infrastructure & CFO are authorised to certify that copies or documents are ‘true copies’ if that should be required.

Related key legislation and policy

Library Act 1939 (NSW)
Library Regulation 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Related State Library procedures or guidelines

Access to the Special Collections (original material and rare printed material).
Special Collections: Conditions of Use
Printing and Copying

The State Library acknowledges that there is a range of other relevant legislation (such as the Evidence Act NSW and specific Court Regulations and Court Practice Notes) regarding the service and administration of subpoenas to which the Library will be subject to and need to comply with in responding to subpoenas which are not set out in detail in this policy.

Definitions

Subpoena
A court order, writ or formal legal document requiring the recipient to provide specified documentation to a court in relation to a legal proceeding, or to appear before the court as part of a legal proceeding. This policy specifically refers to the request for production of documents by subpoena. Reference to subpoenas includes all other legal instruments to produce documentation (such as summons, and statutory notices or orders to produce).

Original Materials
Refers to original collection material formally accessioned as part of the State Library’s collection and includes books, manuscripts, files (including digital files), maps, architectural plans, objects and corporate documentation provided to the Library as part of legal deposit.

Conduct Money
A sum of money (in the form of a one-off, up-front payment), sufficient to meet the reasonable expenses (such as travel) of the respondent to the subpoena for attending court and returning as required by the subpoena.

Compliance costs
Fees or charges to recover costs incurred in responding to subpoenas. This includes reasonable costs of document retrieval and handling, Library staff time and any copying undertaken.

Corporate information
Any information residing in the Library’s datasets including, but not limited to, records held by the Library that provide evidence of its business activities.

Third-party subpoenas
subpoenas served on organisations other than the State Library but which relate to documentation deposited with the Library and/or held by the Library on behalf of that organisation.

Issuing Party
The specific court of tribunal who has issued the subpoena upon the request of solicitor or agency seeking access to material under the subpoena.

Summons
An official document which requires a person to give evidence at a Tribunal hearing or to produce documents or things to the Tribunal. In some jurisdictions and for some courts and tribunals, summons have replaced subpoenas.