Sometimes during court cases, agencies can be ordered to list all the documents they control that relate to the case. They may need to present the other party with the list before any hearings, and may also be required to produce the documents in court. This is called a discovery order. A court may also subpoena documents (ie order that particular documents be brought to the court).

Discovery orders and subpoenas quite often include records held by the Archives. The agency responsible for the activity or subject of the discovery order is responsible for carrying out that order. This means identifying all relevant records, including those located at the Archives, and arranging access or copies of them. Please see Fact Sheet 51 - Copying and printing charges if your agency plans to request electronic copies or photocopies.

Before responding to a discovery order or subpoena, agencies should seek legal advice. They will be able to advise you on the kinds of records that may be covered by public interest immunity provisions. Your agency may not be required to release documents that:

• might damage national security
• contain sensitive personal information about an individual or
• contain legal advice that is subject to legal privilege

If you think there may be documents relevant to the discovery order or subpoena held at the Archives, please contact the National Archives as soon as possible. The Archives can give you advice on finding the required records, but your agency will need to undertake the detailed search process itself.

Once you identify and locate all the relevant records, check any disposal programs your agency might be undertaking. Make sure that your agency does not destroy any records that relate to the discovery order or subpoena until after the court case is complete. Discovery orders or subpoenas take precedence over destruction even though the Archives may have authorised the destruction through a disposal authority.

You will then need to arrange access to documents relevant to the discovery order or subpoena. For example, legal representatives may want to inspect the records. They will need the permission of your agency if they wish to look at your agency’s records on Archives premises, and will need to bring an Official Access Authorisation form.

When a court orders documents to be handed over, you may need to withdraw records from the Archives. However, courts will generally accept certified copies of records instead of originals. It is preferable to provide copies of originals if the records have long-term value, especially if they are over 30 years of age as these records may be subject to applications for public access. In addition, original records provided to courts may be damaged or lost. The Archives can make a printed or digital copy of the records in its custody and certify them as true copies. There is a cost associated with the provision of this service. The court may agree to view very old or fragile records on Archives premises if they can only be copied with difficulty.

Courts may directly subpoena the Archives to provide records that are held in our custody. The Archives must comply with a subpoena, regardless of any sensitivities in the records. If the Archives receives a subpoena for records in its custody that are controlled by your agency, it will notify your agency before supplying the records or copies to the court. If your agency has any objections to providing the records to the court, it should deal directly with the court itself. Once the Archives has received a subpoena, it is illegal to hand the records over to anyone other than to the court requesting them. The Archives cannot give the records back to the controlling agency, but can allow the agency to view the records. If it is acceptable to the court, the Archives will provide certified copies to the court and retain the originals in its custody.