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ANNEX E

Guidance on the Agreement Between the Scottish Executive and the Scotland Office on Pre-Devolution Records of the Scottish Office

E.1 Purpose of Guidance

This note provides guidance for Scottish Executive staff on how to operate the arrangements set out in the Agreement between the Scottish Executive and the Scotland Office on pre-devolution (ie before 1 July 1999) records of The Scottish Office. This is only guidance - for the detailed requirements, please refer to the Agreement itself or the relevant legislation.

The purpose of the Agreement is to:

The Agreement is not intended to alter the effect of any of the legislation it refers to - it only sets out our joint understanding of how that legislation applies.

E.2 Ownership and possession

This section is only for background information to put the rest of the guidance into context. You should never need to worry about the ownership or possession of pre-devolution Scottish Office records. In the unlikely event that any questions are raised on this issue, you should refer them to the Public Records Policy Branch of the FOI Unit (see B.7 below) as soon as possible.

UK Ministers retain ownership of all pre-devolution Scottish Office records, under the terms of article 10(1) of the Transfer of Property etc. (Scottish Ministers) Order 1999 (S.I. 1999/1104). In practice, however, all former Scottish Office records are held and managed by the Scottish Executive (see B.5 below).

The Transfer of Property Order gives the Scottish Ministers rights to possess, access, use and deal with, records which immediately before devolution (ie before 1 July 1999) were held or used wholly or mainly in connection with the exercise of devolved functions. UK Ministers have a right to access, use and deal with these records but not to possess them. In the Agreement and this guidance note, these records are referred to as devolved functions records.

The Scottish Ministers' rights of possession, access, etc do not extend to the small number of records which immediately before devolution were held or used wholly or mainly in connection with the exercise of reserved functions, for example:

• constitutional change,
• nuclear bases,
• offshore installations and pipelines,
• power stations.

In the Agreement and this guidance note, these records are referred to as reserved functions records.

It is important to remember that a record held or used in connection with a devolved function, eg planning, but which contains information on a reserved matter, eg nuclear energy, is covered by the Scottish Ministers' rights of possession, etc. In other words, it should be treated as a devolved functions record.

Devolved functions are any function of a UK Minister which was transferred to the Scottish Ministers by virtue of section 53, 63 or 89 of the Scotland Act 1998. Reserved functions are any function of a UK Minister which was not transferred under these sections - these are listed in Schedule 5 to the Scotland Act.

E.3 Freedom of Information

Devolved functions records

Information held in devolved functions records (see B.2 above) is covered by the Freedom of Information (Scotland) Act 2002 and any requests for access to that information must be dealt with in accordance with that Act. There are, however, 2 important points to remember:

• firstly, there is one exception - where the information is "held in confidence", it is subject to the UKFOI Act instead (see paragraph 9.1 below);
• secondly, where you are considering the application of the public interest test or the harm test in relation to an exemption under the Scottish FOI Act, the Scotland Office should be consulted (see B.3 below).

Information held in confidence

Where information which has been supplied by a UK Minister or government department is held in confidence by the Executive, any request for access to that information must be referred to the Scotland Office, who will deal with the request under the UK Freedom of Information Act. Information "held in confidence" will be identified by the Executive on a case by case basis as requests for access are submitted. While there will inevitably be some such information on devolved functions records, it should be relatively rare. The Agreement lists the following categories of information which it has been agreed will be regarded as "held in confidence":

• UK Cabinet papers - any such papers held in pre-devolution Scottish Office records should have been handed back to the Cabinet Office following devolution. They are listed in the Agreement only in case any have been overlooked. If you find any UK Cabinet papers in Scottish Executive or former Scottish Office records, they must be returned to the Cabinet Office as soon as possible;
• minutes to or from UK Ministers;
• papers relating to defence or national security;
• papers with a protective marking, eg restricted, confidential - even where a paper has been declassified, it should still be regarded as held in confidence;
• papers containing legal advice;
• papers which include a note, or are attached to a covering paper, which asks for the information not to be disclosed.

This list is not exhaustive, it is intended to give only the main examples. It should generally be clear whether a particular paper should be regarded as "held in confidence". The Agreement provides that any decision as to whether information is "held in confidence" must be referred to a member of staff of appropriate seniority and experience, ie at least Branch head level. In any case where you are in any doubt, you should contact the Public Records Policy Branch ( PRPB) of the FOI Unit for advice (see B.7 below). If necessary, the PRPB will then consult the Scotland Office as agreed in paragraph 9 of the Agreement.

Application of public interest and harm tests

The categories of exempt information in the Scottish and UKFOI Acts are similar so, generally, there should be few occasions when under the Scottish Act the Scottish Executive will have to consider releasing information on a reserved matter which the UK government would not be required to release under the UK Act. However, to minimise the potential for any conflict between the two FOI regimes, the Agreement contains provision for the Scotland Office to be consulted in the circumstances described below. This consultation is not a statutory requirement - it is an administrative arrangement so, while you should give proper consideration to the views of the Scotland Office, ultimately your decision must comply with the terms of the Scottish FOI Act.

Some of the exemptions are subject to a 'public interest test' or a 'harm test'. Guidance on the exemptions and application of these tests is available on the Intranet at: http://intranet/content/corporate/guidance/information/openness/index.asp . One of the main differences between the Scottish and UKFOI Acts is that the harm test under the Scottish Act is on the basis of "substantial prejudice", compared with plain "prejudice" under the UK Act. Therefore, where this test applies, in Scotland there is a greater presumption that the information will be released than there is in England and Wales. The public interest test is the same under both Acts. Where you are considering the application of either the harm test or the public interest test in relation to a request for access to information on a reserved matter which is contained in a devolved functions record, you should consult the Scotland Office at the earliest opportunity. To do this you should copy the request to Melissa Macken, The Scotland Office, Briefing Services Division, Room 1/2, 1 Melville Crescent, Edinburgh, EH3 7HW (tel 0131 244 9009), explaining which exemption(s) and test(s) apply. The Scotland Office will respond in time for you to meet the deadline for responding to the request (ie 20 working days from the date the request was received).

Under section 58 of the Scottish FOI Act, some exemptions fall away after a period of time, ie 30, 60 or 100 years after creation of the record. Clearly, the public interest and harm tests no longer apply when an exemption has fallen away and in such cases the Scottish Executive is not required to consult the Scotland Office.

Detailed guidance on Freedom of Information, including advice on handling requests, is available on the Intranet at: http://intranet/content/corporate/guidance/information/openness/index.asp .

Reserved functions records

The situation with reserved functions records (see B.2 above) is more complicated and is explained in the following table:

In practice, the number of reserved functions records which are subject to the UKFOI Act will be a small proportion of the total number of pre-devolution Scottish Office records.

E.4 Data Protection

Devolved functions records

Under the terms of the Data Protection Act 1998 (the DPA), the Scottish Executive is the data controller for devolved functions records (see B.2 above). This means that the Executive will deal with all requests for access to personal data held in these records.

Reserved functions records

Under the terms of the DPA, the Scottish Executive and the Scotland Office are joint data controllers for reserved functions records (see B.2 above). Under the Agreement it has been agreed that, in practice, the Executive will deal with all requests for access to personal data held in these records. It has also been agreed that the Executive will consult the Scotland Office before granting access to personal data held in a reserved functions record, and the Scotland Office will respond in time for the Executive to comply with the request within the time specified in the DPA. If the Executive intends to refuse a request for access to personal data, it is not necessary to consult the Scotland Office.

Explanatory guidance on the DPA is available on the Intranet at: http://intranet/content/corporate/guidance/information/openness/dataprotection/dpr-00.asp .

E.5 Records management

Under the Agreement, it has been agreed that the Scottish Executive will undertake all records management functions in relation to all pre-devolution Scottish Office files. This means that they will be managed in exactly the same way as the Executive's own files.

E.6 Dispute resolution

It should usually be possible to resolve any questions arising in relation to the Agreement by discussion between Scotland Office and Scottish Executive officials, with assistance from the Public Records Policy Branch (see B.7 below). In some instances, it may be necessary to refer the matter to Ministers. The Agreement provides that where it is not possible to resolve an issue in this way, it will be referred to the Join Ministerial Committee ( JMC) Secretariat in accordance with the Memorandum of Understanding and JMC agreement. The MOU and JMC agreement can be found on the Intranet at: http://www.scotland.gov.uk/library2/memorandum/#MoU.

E.7 Further advice

If you need any further advice on any of the issues covered in this guidance note or the Agreement, contact the Public Records Policy Branch, Freedom of Information Unit, G-A(North), Victoria Quay, ext 45537. Alternatively, you will find detailed guidance on Freedom of Information on the Intranet at: http://intranet/content/corporate/guidance/information/openness/index.asp .

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