PUBLIC RECORDS
98. The Freedom of Information Act, the White Paper
says, will have a considerable impact on our public records system.
The public already possesses the right of access to government
records over 30 years old under the Public Records Acts 1958 and
1967. The right applies to central government bodies and the courts.
Most old records are, in fact, destroyed: only a small percentage
of the records created by government are transferred to the Public
Record Office and preserved permanently.[155]
99. The White Paper considers whether it should be
necessary to unify the systems of access to "current"
records—those less than 30 years old—and of access
to older records. It proposes that the Freedom of Information
Act should cover access to both current and historical material:
"this will provide a comprehensive right of access to all
records, regardless of their age". There will, however, continue
to be different systems of access for current records and historical
records. Records of over 30 years old will, as now, be assumed
to be open to the public (with no need to apply the "harm"
or "substantial harm" tests). Records that were created
more recently may be released before their time; but in general
they will only be available if they are not subject to an exclusion
and if they pass through the harm tests.[156]
100. The White Paper discusses the possibility of
lowering the threshold at which records pass from being "current"
to becoming "historical". Its conclusion, that "it
is preferable to retain the 30 year rule which is in line with
international practice" is, it would seem, based largely
on the cost of accelerating the process of reviewing old records
to determine whether they should be preserved as "historical"
or not. Changing the 30 year rule to a 25 year rule would cost
£60 million over five years,[157]
a cost, the White Paper says, which "would not constitute
the best use of scarce public resources".[158]
The White Paper does, however, commit the Government to releasing
more records earlier than the 30 year threshold. Earlier release
is already encouraged under the Code of Practice.[159]
101. Not all preserved records are opened after 30
years. Some may be withheld for longer, and are either retained
within departments indefinitely or sent to the Record Office but
closed for a specified period. In either case, departments have
to show that the records comply with criteria for non-disclosure
laid down in 1993 Guidelines. Documents whose disclosure might
harm the defence, international relations, or national security
of the country may be closed for up to 40 years; documents containing
information supplied in confidence may be closed for periods of
up to 100 years; and so on. The Home Secretary said that the earliest
files in existence in the Home Office that were still closed date
from 1874 and concerned files created by the then Irish Secret
Police.[160] The White
Paper says that these criteria—already not too dissimilar
to the specified interests under Freedom of Information—will
be recast to make the relationship between them much closer.
102. There is already a system by which it is possible
to appeal against extended closure of some documents. Appeal is
to the Advisory Council on Public Records which advises the Lord
Chancellor. The White Paper argues that this is ineffective; it
proposes to direct appeals on public records instead to the Information
Commissioner.[161]
We note, however, the point made in evidence to us by the Royal
Historical Society, who argue that the Information Commissioner
should be supported by professional historical advice in reaching
a judgement on such cases.[162]
103. Our principal concern about this section of
the White Paper is about its application to bodies outside central
government to which the Freedom of Information Act will apply.
The White Paper itself is silent on this; the background paper
says merely that "Records of local authorities are not covered
by the Public Records Acts: separate provision is made for these
records to be made available to the public. It is envisaged that
this will continue under FOI".[163]
This is inadequate in relation to local authorities; and more
inadequate in relation to all the other bodies concerned. It is
reasonable that the Public Record Office should not become a repository
for the records of bodies not within central government; but further
consideration might have been given to whether other bodies ought
to be required to meet the standards of central government in
record keeping, and whether the rights of access given to central
government records, currently through the Public Records Acts,
and in the future through the Freedom of Information Act, should
cover the other bodies as well. Lord Irvine referred to such an
extension of the Act as constituting an "upheaval";[164]
but it is not clear to us why ensuring that central government
standards of record-keeping apply to other government bodies as
well should cause an upheaval. If it is not done, freedom of information
will almost inevitably be less effective as it applies to these
other bodies.
104. The White Paper also refers to the importance
of proper records management. It proposes "to place an obligation
on departments to set records management standards", with
regard to best practice guidance drawn up by the Public Record
Office—and particularly relating to the implications of
the new extensive use of electronic systems for processing information
and for communicating. As the White Paper says, "statutory
rights of access are of little use if reliable records are not
created in the first place, if they cannot be found when needed,
or if the arrangements for their eventual archiving or destruction
are inadequate".[165]
The Public Record Office is only likely to help those government
bodies which come under its remit. There will be a great need—a
greater need—for the same sort of help among the other bodies
to which the Act applies—local authorities, schools, contractors,
the utilities—which may not have been used to the discipline
which a statutory obligation to keep records requires. We recommend
that the expertise and assistance of the Public Record Office
should be made available to these bodies as well as those which
it is obliged to help.
155 paras. 6.1-6.4. Back
156 paras.
6.5-6.6. Back
157 Min
of Ev. p.84. Back
158 para.
6.5. Back
159 paras.
6.7-6.9. Back
160 Q.534. Back
161 para.
6.11. Back
162 Ev.
p.168. Back
163 p.65,
fn.18. Back
164 Q.440. Back
165 para.
6.12. Back
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