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Appendix 3
FREEDOM OF INFORMATION: RECORDS HELD AT THE
NATIONAL ARCHIVES OF SCOTLAND
GUIDANCE FOR
SE DEPARTMENTS ON REVIEWING OLD
FILES
Background
1. The National Archives of Scotland (
NAS) is the main repository for the
public and legal records of Scotland which have been
identified as being worthy of permanent preservation. It
also advises Scottish government departments, institutions,
businesses and private individuals on the care of their
records. Scottish Executive files which are chosen to be
preserved are transferred to
NAS's custody and held there on our
behalf.
2. Many
FOI requests will not be for information
that is current, but for older records which have a long
retention period, or have been selected for permanent
preservation at
NAS. Previously these records were
automatically 'closed' to public viewing for a minimum of
30 years, however with the advent of
FOI this '30-year rule' no longer
applies. Unless they contain information subject to an
exemption, they are now available to the public on request
under the
FOI (Scotland) Act (
FOISA).
3.
NAS holds approximately 28,000 files
closed under the 30-year rule, all of which require to be
reviewed for information which is exempt under the
FOISA before they can be opened. 'Open'
files held at
NAS are exempt from
FOI as they are already accessible to
the public and can be viewed in the public search-rooms.
NAS have agreed with the Scottish
Information Commissioner a process of reviewing the
'closed' files that, although proactive, will nevertheless
take several years to complete.
SE Departments are therefore encouraged
to consider reviewing their files to accelerate the process
of opening files, and reduce the possible burden of
FOI requests. Requests to see 'closed'
files at
NAS are referred back to the originating
department for a decision on release.
Retrieving files held at
NAS
4. Files that have been transferred to
NAS for permanent preservation as
historical records can only be returned to the Executive on
a temporary basis.
SE's Records Management Branch will
track the location of returned files, and they must not be
passed on to other areas without first advising Records
Management Branch. The files must be handled with care, and
not altered in any way (
see Annex C).
File-review programmes
5. If a department decides to implement a programme of
reviewing 'closed' files held at
NAS in order to identify exempt or
releasable files (as recommended by Stephen Bruce's minute
of January 2005 to all
PS/departments) arrangements should be
made with the Government Records Branch of
NAS for carrying out the reviews
(although files will be distributed and tracked by the
SE's Records Management Branch).
6. Where large volumes of files are involved,
departments will be encouraged to carry out reviews in situ
at
NAS where the files are stored (West
Register House on Charlotte Square), in order to minimise
the risk of files going astray and reduce the
administrative burden of issuing files.
7. In some instances
NAS may request that departments delay
their reviewing programme in order to 'stagger' the
reviewing work carried out by different departments, which
will avoid
NAS diverting resources away from other
core work.
8. Where it is not possible for staff to visit West
Register House,
NAS will limit the numbers of files
returned to the Executive at any one time to between 10-20,
and the files will be issued for a maximum of one month.
They have identified certain series of records which will
be able to be reviewed quickly (because they are probably
releasable, or contain obviously exempt information, such
as those including personal information) and they will
provide guidance to departments on establishing which
series of files to prioritise. Reviewers will be encouraged
to carry out a programme of review in a systematic way by
looking at series of files rather than a random
selection.
Reviewing old files
9. Files may contain a mixture of exempt and releasable
information. For this reason file reviewers must look at
the entire contents of the file, page by page, and not rely
on a general 'feel' for the contents of a file. If a file
contains any exempt information, however little, it will
remain 'closed' - it is not possible to designate a file as
partly open/partly closed.
Public interest test
10. Whereas the process of review is essentially the
same as for considering the release of any information
under
FOI, the age of the files will affect
application of the public interest test. What is in the
public interest will change over time and circumstances,
and it is for this reason that
FOISA has not attempted to prescribe a
definition of 'public interest'.
11. It is likely there will be less public interest in
withholding information as time passes - if the information
relates to a previous administration for example, its
sensitivity is likely to be far less than if it were to
concern the current government. (In Ireland, cabinet papers
are now released after 10 years.) On balance, the
presumption should always be in favour of disclosure. Many
exemptions cease to apply after 30 years (see table below);
where these are conditional and reliant upon application of
the public interest test, the closer the age of the record
to the end-date of the exemption, the lesser (in all
likelihood) of there being any sensitivities about
release.
12. For guidance on applying the public interest test,
see the
FOI Practical Guidance Notes, available
via the intranet on the
FOI Unit's webpages.
Exemptions falling away with time
13. Many of the exemptions cease to apply after a fixed
period of time - at this point files held by
NAS will be made automatically available
to the public.
FOISA Section | Exemption* | Duration of exemption |
S.28 | Relations within the
UK | 30 years |
S.29 | Formulation of Scottish Administration
policy | 30 years |
S.30 | Prejudice to the effective conduct of public
affairs | 30 years |
S.33(1) | Safeguarding national security | 30 years |
s.34(2)(b) | Investigations by Scottish public
authorities | 100 years |
s.35 | Law enforcement | 100 years |
S.36 | Confidentiality | 30 years |
S.37 | Court records | 30 years |
s.38(1)(c) | Personal census information | 100 years |
s.38(1)(d) | Deceased persons' health records | 100 years |
s.40 | Audit functions | 30 years |
s.41(a) | Communications with the Royal Family | 30 years |
s.41(b) | Exercise of
HM's prerogative of
honour | 60 years |
* See exemptions guidance and Act for further detail
For detailed guidance on applying each of the
exemptions, see the
FOI intranet pages.
Files containing personal information
14. File reviewers should be particularly aware that
some files may contain personal information about living
individuals, and so an exemption under s.38 of
FOISA may apply. The interaction of
FOI and Data Protection are particularly
complex, and detailed guidance on the s.38 exemption is
available on the
FOI intranet pages. Broadly speaking,
release of personal information must not contravene the
Data Protection Principles (see guidance) or cause damage
or distress to individuals. References to people operating
in a professional capacity - for example their attendance
at a meeting - does not constitute personal information. If
there are personal references which are sensitive - for
example about their health or sexuality - then an exemption
under s.38 of
FOISA may apply.
Recording the review decision
15. Once the review of a file has been completed, if an
exemption has been applied the
NAS Exemption schedule (
see example in Annex A) must be
completed, and two copies placed on the file. If the file
can be opened, the File Open Schedule (
see example in Annex B) must be
completed, two copies put on file, and the file cover
marked accordingly with the label provided by
NAS.
16. The completed
NAS Exemption Schedule must:
- identify the relevant information clearly (for
example by the date and title of the document
concerned)
- cite each relevant exemption with an explanation of
why it applies; and
- identify a date at which release would be
appropriate.
Files must then be returned to Records Management Branch
at Saughton House who will pass them on to
NAS.
Further information
NAS have compiled a list of Executive
files held which remain 'closed' for 30 years
(approximately 28,000 in total). For a copy of the list
contact the
FOI Unit on ext. 45146.
NAS also has an online catalogue
providing descriptions of its records which can be searched
using subject, date, reference, department etc. See
http://www.dswebhosting.info/NAS/
Contact details for Records Management Branch; telephone
the Records Appraisal Unit on ext. 44326.
Contact details for Government Records Branch at
NAS; email
governmentrecords@nas.gov.uk
Guidance on handling
FOI requests and on each of the
exemptions is available on the
FOI Unit's intranet pages, at
http://intranet/content/departments/lps/cps/foi.htm
Further information on Data Protection is available in
the 'Guidance' section of the intranet.
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