Select Committee on Public Administration Memoranda


Submitted by the Keeper of Public Records


  1.1  This short paper seeks to provide context to the public records provisions in the draft FOI bill. It first sets out the current arrangements governing access to public records and then describes how the proposals in the draft Bill might work in practice. It concludes by considering the proposal for a records management code to be issued by the Lord Chancellor.

  1.2  The paper does not comment on the policy choices on the right of access to public records or the exemptions to that right: these are matters on which Ministers rather than civil servants should comment.


  2.1  Currently, access to public records is governed by the Public Records Act 1958 and 1967. The Act first established the basic framework for access to public records and the second introduced 30 years as the customary period after which records selected for permanent preservation would be made available. If records are to be withheld for a period longer than 30 years, then the consent of the Lord Chancellor—as Minister responsible for the public records system—has to be obtained. He takes into account the views of his Advisory Council on Public Records when considering any such applications from departments. Records may either be retained within their department of origin or may be closed for a period in excess of the thirty year norm.

  2.2  The criteria governing the extended closure of public records are set out in the 1993 White Paper Open Government. A copy of the relevant section appears as an Annex to this paper.

  2.3  If researchers wish to see a record which is retained by the department of origin—or is subject to an extended closure—they may apply to the relevant department, seeking a reconsideration of the decision. Since 1993, departments have been encouraged to respond positively to such requests and to date more than 90,000 documents have been released under this initiative. If a department declines to release a record, a researcher currently has no statutory rights of appeal, although he/she may raise the matter with the Advisory Council on Public Records.


  3.1  The PRO currently provides access to more than 800 readers each day at its two sites. At our headquarters building at Kew, we deliver more than 2,000 documents to the public each day. This is mass access to government information, delivered cost effectively and swiftly. Readers do not need to make appointments or to order documents in advance: most are delivered to them within 30 minutes of their being requested.

  3.2  We are developing on-line access to the information we hold. Later this month, the PRO's catalogue—containing more than eight million individual descriptions—will become available over the Internet. This will be followed subsequently by on-line access to the records themselves: we are now accessioning records which were created electronically and are beginning to digitise parts of our holdings.

  3.3  This ready access to public records is possible because the access status of records on the shelves in the PRO is known. Most are open and may be seen by anybody on request; the minority which is closed for a longer period of time will become available at a known date in the future. This contrasts sharply with the arrangements in some overseas archives. For example, at any one time the access status of just 20 per cent of the holdings of the National Archives of Australia is known. A reader wishing to see part of the remainder has to file an application and wait while reviewers consider the sensitivity of individual papers—as they would do with a request to see current information subject to FOI.


  4.1  The draft Bill represents a new approach to access rights for public records. The access provisions in the Public Records Act 1958 are removed and in their place there is one integrated right of access to recorded information, regardless of its age. A number of the exemptions cease to apply after 30 years, but the basic features of the right of access are the same either side of the 30 year mark.

  4.2  This model has been used elsewhere—notably in Canada—and has been shown to be workable. But just as important as the access right itself are the administrative arrangements which underpin it. The introduction of FOI will necessitate change here. For example, it will no longer be possible for ministers to make a determinative decision that a record should be closed for 50 or 75 years: members of the public may apply to see any record and may appeal to the Information Commissioner or to the Tribunal if their application is refused. But it remains important that we retain the strengths of the current system—even if its legal form is to change. Hence we foresee a continuing need for the great majority of records to be cleared for automatic release to the public before they reach the PRO at the 30 year mark. For the remainder, it will be necessary to designate them for release at a defined date in the future—but it must be recognised that release may happen sooner if a member of the public lodges a successful FOI application before the "closure" period expires.

  4.3  The Consultation Document notes that further provisions relating to public records are under discussion. It remains to be determined whether these will result in changes to the face of the Bill or in an additional code of practice to be laid before Parliament by the Lord Chancellor, setting out the administrative structures which will best support the new public records access system and the roles to be played by the PRO, other departments and the Advisory Council.


  5.1  The success of any information access regime depends heavily on the quality of record-keeping: if reliable records are not created, managed and archived satisfactorily then they cannot be made available to the public. This point—which is fundamental to the new FOI system—is recognised in the clause 39 of the draft Bill, which requires the Lord Chancellor to issue a code of practice on records management, having regard to the public interest in access to records.

  5.2  This will be the first time that records management in government has been subject to a statutory code of practice. For the past two years the PRO has taken the lead in raising the standard of records management across central government and the code will give additional impetus to this work. The advent of electronic government makes this task all the more pressing: record-keeping requirements must be identified and acted upon when new automation projects are at the design stage if electronic records are to be retrieved efficiently and effectively for the public at a later date. It is important that the draft code effectively addresses the electronic environment so that it can provide a clear steer to authorities on the standards which must be attained in the interests of public access. Our experience has been that departments welcome clear and robust guidance on the way forward in records management and the code provides the opportunity to build on this approach.

July 1999

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Prepared 16 August 1999