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 Chancelloras Minister responsible
for the public records systemhas 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 originor is subject
to an extended closurethey 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 cataloguecontaining
more than eight million individual descriptionswill 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 papersas 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 elsewherenotably
in Canadaand 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 systemeven
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 futurebut it must
be recognised that release may happen sooner if a member of the
public lodges a successful FOI application before the "closure"
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 pointwhich
is fundamental to the new FOI systemis 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.