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FOI and public records
7.1 Government records of historical value are selected for permanent preservation and at present these must be made available, with limited exceptions, to the public in the National Archives of Scotland when they are 30 years old. There are links between Freedom of Information and our public records system - the proposed right of access will for instance apply to both current and historical material - and we recognise that our proposals will need to take account of existing Scottish archive policy and practice and of any changes to it which might be the subject of separate consideration. This consultation document does not however contain any proposals for changes to the current system of managing public records in Scotland.
7.2 Categories of public records in Scotland are also held by the Registers of Scotland (dealing with property registers and land titles) and the General Register Office for Scotland (dealing with registers of Births, Deaths and Marriages). Our Freedom of Information proposals are not intended to change the statutory framework within which these offices operate, including the relevant access provisions and charging arrangements.
Current public records system
7.3 The Public Records (Scotland) Act 1937 allows any Government Department (now including the Scottish Administration), Board of Trustees, or other body or person having custody of any records belonging to Her Majesty and relating exclusively or mainly to Scotland to transmit those records to the Keeper of the Records of Scotland. The Keeper is the head of the National Archives of Scotland (formerly the Scottish Record Office). The 1937 Act also permits any local authority or any statutory corporate body with the consent of the Keeper to transmit such of their records that relate exclusively or mainly to Scotland to the Keeper. The legislation is permissive rather than mandatory in that no statutory duty is placed on anyone to submit records to the Keeper. There is also no definition in the legislation of public records 21.
7.4 In England and Wales the position is somewhat different, with public records being governed by the Public Records Acts of 1958 and 1967. The 1958 Act places a duty on every person who is responsible for public records to make arrangements to select the records which ought to be permanently preserved. Since 1962, several aspects of the 1958 Act have been applied in Scotland by administrative agreement. The 1967 Act set a statutory closure period of 30 years, after which records must, with limited exceptions, be made available to the public. This rule has been applied in Scotland by administrative means. The White Paper Open Government 22 laid down the strictly-defined criteria which must be met if historical records are to be withheld from the public for longer than 30 years. The White Paper also encouraged Departments to consider actively the earlier release of records.
The 30 year rule
7.5 We have considered whether there should be any change to the 30 year threshold but on balance we propose that this be retained. The rule is in line with practice elsewhere in the United Kingdom and internationally. Under our Freedom of Information proposals, more records should be available to the public before 30 years. This should mean that those records not made available until they are 30 years old would generally be of greater sensitivity than before. A reduction in the 30 year rule for all historical records would also have considerable cost implications for Scottish public authorities and the National Archives of Scotland.
Records management
7.6 An effective Freedom of Information regime will in part be reliant on Scottish public authorities following satisfactory practices in connection with the keeping, management and destruction of their records. A statutory right of access to information will be of limited benefit if reliable records are not created from the outset, if they cannot be recovered when needed, or if the arrangements for their archiving or destruction are inadequate.
7.7 Under the Code of Practice on Access to Scottish Executive Information, public authorities are not permitted to charge for the costs of retrieving information which are due to poor records management. We intend this to be a feature of any charging scheme under a statutory Freedom of Information regime, to be reinforced by the powers of the Scottish Information Commissioner.
7.8 The draft Westminster Freedom of Information Bill includes a clause requiring the Lord Chancellor to issue a code of practice setting out guidance on records management which he considers public authorities should follow. Such a code is intended to establish standards of good practice in relation to record-keeping and thereby increase the efficiency with which information can be located and retrieved. In turn this should increase the amount of information which will be available consistent with the imposition of cost limits. We shall consider including a provision in the Scottish legislation requiring a similar code to be issued.
What next for public records?
7.9 In the autumn of 1998 the Scottish Records Advisory Council 23 (SRAC) sent to the Secretary of State for Scotland a draft Scottish National Archives Policy which had been prepared by a working group representing archive interests in Scotland. In his response the Secretary of State suggested that in due course it might be appropriate for archive legislation to be brought forward for consideration by the Scottish Parliament. He also suggested that the SRAC and the working group which had produced the policy might care to consider and consult on what such legislation might contain. The SRAC is currently consulting on its proposals for Scottish National Archives legislation. These proposals cover a very wide range of matters including the functions and authority of national institutions, the position of local, health service and university archives; and the way in which all of these relate and interact. Any proposals for Scottish archives legislation will also need to take account of the general rights of access to information which will be provided by the Scottish Freedom of Information legislation.
7.10 The close involvement of the Keeper of the Records in developing the Scottish Freedom of Information legislation will ensure that, where appropriate, the principles proposed by the Scottish Records Advisory Council for national archives legislation are reflected in the Freedom of Information legislation. We shall also ensure that those responsible for managing the other Scottish public records such as the public registers are involved in the consideration of the Freedom of Information legislation.
21 The Scottish Records Advisory Council has proposed that 'public records' be defined as 'records created or received by a public body'.
22 Open Government, Cm 2290, July 1993.
23 The SRAC advises the Scottish Executive on questions relating to the public records of Scotland.
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