Select Committee on Public Administration Third Report


142. The White Paper announced that the Government wanted the Freedom of Information regime for access to current records and the regime for access to historical records "to complement each other to give a unified approach to openness". It proposed that the rules relating to access rights to historical records contained in the two Public Records Acts (or 1958 and 1967) and guidance contained in the 1993 White Paper on Open Government should be incorporated into the Freedom of Information Act—although it said that other aspects of the Public Records regime, such as the role and responsibilities of the Public Record Office, would continue to be covered by a separate Public Records Act.[261]

143. Part VI of the Bill contains the provisions relating to historical records. In fact, the changes to the Public Records Acts are fairly limited. The basis of the existing system was set out in section 5 of the 1958 Act. It established the assumption that public records would be released after 30 years, but allowed the Lord Chancellor to make them available earlier, or retain them after that period. Clause 59 of the draft Bill effectively repeals most of that section, and the rest of Part VI establishes the new system. Records become "historical records" after 30 years. The Bill's provisions will still apply to these, so one may apply for these records and appeal to the Information Commissioner if access is refused. Some of the exemptions cease to apply at 30 years; others cease to apply after 75 or 100 years. Even if the information is exempt from disclosure, authorities are encouraged to make it available under their discretionary powers in clause 14, by being required to consult the Lord Chancellor before they turn down a request under that clause (which effectively means that they will have to consult the Lord Chancellor when refusing any request for access to historical records). On the other hand, the Public Record Office is not itself permitted to release a record which is still exempt without consulting (usually) the originating department. The Lord Chancellor is obliged under clause 39 to issue a code of practice on records management.

144. It is to be welcomed that the system of access to historical records will now be placed on a proper statutory basis (although there is currently a statutory system in place, it leaves much to the discretion of the Lord Chancellor); and that the Information Commissioner will now have a role in determining whether refusals of information are justified. That said, there are some concerns about the detail of the proposals which need further consideration.

145. Some of the exemptions cease to apply at 30 years, some at 75 and some at 100 years. Some apply indefinitely (see the table on pp. xli-xlii above). Under the guidelines on the extended closure of public records, which have applied since the Open Government White Paper of 1993, all records held by the Public Record Office should be released after 30 years unless it is possible to establish that their release would cause actual damage, to be considered under one of three criteria. The criteria, and the extended closure periods which would apply in cases meeting these criteria, are set out in the table annexed to this Report (Annex 5). The guidance did not mean that the records certainly would be released after the period set out in the table. The 1993 White Paper said that for records covered by the first of the criteria, "if the sensitivity which has caused the record to be closed for longer than 30 years has passed it will be released at that point; if it has not, the process will be repeated after ten years and every ten years thereafter until the record becomes releasable". For the other two criteria, the records would be released after the expiry of the closure period. In addition, some categories of material were not transferred to the Public Record Office, but retained (with the approval of the Lord Chancellor) indefinitely. These included security and intelligence material; civil and home defence material; material relating to atomic energy; and the personnel records of civil servants.[262]

146. It is hard to say whether in practice there is a real difference between the extended closure rules operated since 1993 and the draft Bill's regime. In part, this is because the 1993 rules were discretionary, and its closure periods indicated for some material only a date at which the records would be reviewed, not one at which they would necessarily be released. Under the Bill, the records will certainly be released when the exemption ends. There are, though, three exemptions which remain after 30 years which, the Keeper of Public Records told us, "do not have currently a precise parallel in the present administrative system". They are investigations (clause 25); honours conferred by the Crown and communications with the Royal Household (clause 29).[263] The Royal Historical Society has argued that there is no reason for these exemptions to be allowed to continue for longer than under the present (admittedly discretionary) regime.[264] The Advisory Council makes a similar point.[265] As Mrs Tyacke said, even if they were not obliged to do so, departments would be able to release the records under their discretionary powers.[266] But as the Advisory Council adds, although the Bill requires authorities to consider the public interest in releasing the information, "it provides for no effective control over how departments exercise their responsibility".[267] The exemption will, it says, create a presumption that these records should not be disclosed, at least for a considerable period of time. Since these three exemptions have no precise parallels at present, it is not clear why they will be needed in the future, and we recommend that the exemptions for investigations, honours and communications with the Royal Household should cease to apply after 30 years. We do not believe that it is sufficient to rely on discretionary disclosure under clause 14.

147. Some of the exemptions continue for up to 100 years or even indefinitely. We recognise that the requirement to consult the Lord Chancellor before turning down a request not to exercise the discretion to disclose a historical record under clause 14 (if it remains in the Bill) may place pressure on authorities to use their discretion to disclose. Even so, we can see no justification for exemptions continuing for more than 100 years. There is no justification for maintaining the secrecy of some categories of information for ever. Sensitive material held by the security and intelligence services is not covered by the Bill, and would not, in any case, be covered by the Bill's exemption and closure regimes. The Royal Historical Society argues that the 100 years exemption for some records relating to criminal, legal and tax matters "may in some cases represent a period of extended closure beyond present practice."[268] We recommend that all the exemptions cease to apply after 100 years, if they have not already ceased to have effect.

148. As the Public Record Office said in their memorandum, "just as important as the access right itself are the administrative arrangements which underpin it".[269] Dr McDonald explained that "at present the system is that records are cleared for release so that the great majority of public records, when they reach 30 years, becomes available automatically, without any fuss at the PRO: they are available on demand. We need to make sure that the strengths of the current system—which are the speed and cost-effectiveness of delivering such records to the public—are retained within the new structure. The draft Bill as it currently stands is perfectly capable of translating those strengths into the new system. We just need a bit of administrative machinery in place to ensure that happens, to ensure that the clearance of the great majority of the records for automatic release at 30 years happens, to ensure that there is appropriate oversight over that process. That could be satisfactorily done within a code of practice. I see that in some ways as being the key activity which we need to do now".[270] The Advisory Council makes a similar point about the efficiency of the current system for taking decisions on whether records can be released at the 30 year point. It argues that while the procedures for processing requests for records which are still in use is logical and reasonable, it would generate "high costs, long delays and a sharply reduced quality of service for members of the public if it were applied to every one of the 2km or so of historical records transferred to the Public Record Office each year". It recommends that all records should be reviewed when they are 30 years old and are transferred to the PRO, and clear decisions should be taken at that point on whether they could be released, or whether they need to be closed for a longer period.[271] We agree, and we recommend that the strength of the current system in making clear decisions on whether records are exempt at the point they are transferred to the Public Record Office should be continued into the new regime; and that this system is incorporated within the Code of Practice made under clause 39.

149. Under the Public Records Acts, the Public Record Office has the duty of guiding, co-ordinating and supervising the selection and preservation of the public records.[272] It will, therefore, fall to the PRO to oversee the arrangements for ensuring that records are in a state which will allow members of the public to exercise effectively their rights of access to historical records. We would assume that the Public Record Office should continue to be closely involved in the process of reviewing records and deciding on their suitability for disclosure at the 30 year point, to ensure that this is done on time and efficiently. This will almost certainly be a rather more complex task than in the past, as records now assume forms which were scarcely conceived of when the Public Records Acts were passed. As Mrs Tyacke pointed out, departments are already under pressure from the Data Protection Act and the Government's White Paper on Modernising Government to get to grips with the issues surrounding electronic record-keeping. There are equally sound business reasons why departments should want to improve this aspect of their records management policies.[273] We recommend that the Code of Practice should in particular address the issues surrounding electronic records.

150. Under the Public Records Act 1958, an Advisory Council was set up under the Chairmanship of the Master of the Rolls to advise the Lord Chancellor on matters concerning public records. It is a representative group of historians, readers, IT persons and lawyers. The three major political parties are also represented on it. The Council sees applications to the Lord Chancellor for the extended closure and retention of records, and it advises him on requests for the release of records made by historians and other members of the public which departments reject. The White Paper said that the Advisory Council would be given the statutory support of the Public Record Office so that applications for extended closure and retention are checked against the relevant statutory criteria.[274] It said, though, that the Council would lose its role of advising on requests from members of the public for the release of records; appeals on these would go instead to the Information Commissioner. Sarah Tyacke told us that in her view the Council does fulfil its function very satisfactorily, and hoped that an arrangement to deal with material beyond the 30 years is brought into being which would have a similar effective result.[275]

151. The Advisory Council is not mentioned in the Bill as currently drafted. Clearly, there will continue to be a role for a body which can give expert advice to the Lord Chancellor on whether or not information should be released. Under the present system, authorities have to apply to the Lord Chancellor if they wish to keep records closed for more than 30 years. Under the draft Bill regime authorities which do not wish to release historical records at all will need to apply to the Lord Chancellor to confirm their decisions that release under their discretionary powers would not be in the public interest. We recommend that the Advisory Council should continue to play a role in overseeing the release or continuing disclosure of material at the 30 year point, and that this should be stated in the Bill.

261  Cm. 3818, paras. 6.2-64. Back

262  Open Government Cm 2290, July 1993, paras. 9.10-9.26. Back

263  Q.693. Back

264  Response by the Royal Historical Society to the Consultation (not printed). Back

265  Response by the Advisory Council on Public Records to the Consultation (not printed). Back

266  Q.693. Back

267  Response by the Advisory Council to the Consultation (not printed). Back

268  Response by the Royal Historical Society to the Consultation (not printed). Back

269  Ev. p.25. Back

270  Q.717. Back

271  Response by the Advisory Council on Public Records to the Consultation. Back

272  Q.710; Public Records Act 1958 s. 3(2). Back

273  Q.709. Back

274  Cm. 3818, para. 6.10. Back

275  Q.716. Back

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