|
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1060-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE constitutional affairs committee
implementation of the freedom of information act
Tuesday 14 September 2004 SARAH TYACKE CB, MRS W JONES and SUSAN HEALY Evidence heard in Public Questions 1 - 86
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 14 September 2004 Members present Mr A.J. Beith, in the Chair Peter Bottomley Ross Cranston Mrs Ann Cryer Mr Jim Cunningham Mr Hilton Dawson Mr Clive Soley Keith Vaz Dr Alan Whitehead ________________ Witnesses: Sarah Tyacke CB, Chief Executive, Mrs W Jones, Director, Strategy, Finance and Resources and Susan Healy, Head of Information, Policy and Legislation, The National Archives, examined. Q1 Chairman: Mrs Tyacke, Mrs Jones, Mrs Healy, welcome. Thank you very much for coming to help us today and thank you for all the assistance you gave us last week when the Committee visited The National Archives. I think I speak on behalf of my colleagues not only to say how much we appreciate the care you took over our visit, but also we were very impressed by the dedication and commitment which some of your staff showed towards serving the public and the enthusiasm they brought to that task. I think it was very pleasing to see. It is also rather nice to see you even have volunteers who come in and help you? Mrs Tyacke: We are very fortunate. Q2 Chairman: Would you like to start by giving us a feeling for what you think the impact the Freedom of Information Act will have on The National Archive service? Mrs Tyacke: The first point is, of course, that it abolishes the 30 year rule and in the code, relating to records management, which is attached to the Act, public authorities are encouraged to release material as early as possible. I would expect that there should be, during the period of the introduction of the implementation, a great deal of activity which will impact on us both in terms of opening records because of the abolition of 30 year rule, which departments and ourselves are already looking at and also, we would expect there to be an increase of the release of records to us and of course to places of deposit as the years go by. Q3 Chairman: There is a Memorandum of Understanding between Government departments and The National Archives for responding to requests for information in closed records that have been transferred, but that has not been finalised yet, has it? Mrs Tyacke: We are in the middle of refining that and making sure that all parties understand how we will approach this. Obviously 20 days is a time constraint, especially when records are closed and there may be a number of stages to go through. Therefore, it is taking us some time to do, but I have every confidence that that will be in place ready to go by January. Q4 Chairman: If it is coming in, in January 2005, will you have enough time to train staff in how it is to be implemented and the terms of it? It is not finished yet. Mrs Tyacke: I think so because the generality of it is already known. For ourselves, we do have special team dedicated to FOI requests. The front-line staff are already trained to put closed record issues to the relevant people in each department in the TNA and that will go through to the specialist team who will then speak with the client managers and the departmental record officers in the departments. Since 1958, there has been a system of departmental record officers in each department and while I would not suggest that they will be able to do everything absolutely perfectly, I do think that we have a system there which can be brought into play. I would not want to be over-confident about that because there are a great many departments and a great many records. Q5 Chairman: Are we going to have a situation where a couple of weeks before Christmas, staff - not just your own, but in the departments as well - suddenly get given a large wodge of paper and are told, "Well, this is the understanding, now you know how to work and you start on 1 January "? Mrs Tyacke: Absolutely not. The record managers in the departments are already appraised and I do not think that will be the case. Q6 Mrs Cryer: I am just thinking about the effect that FOI legislation has on the annual release of documents under the 30 year rule. Will there still be an annual release in January of each year, because I have always found that very exciting and I am sure other people do too. If not, how will readers know when to come to TNA to see newly released documents? Mrs Tyacke: We have been thinking about this quite hard. Certainly, in recent years, as material has come through under the Open Government Code, we have had press events and we will continue to have press events as material comes in. Obviously, if it comes in, as it will this year for the end of the 30 year rule, we will have a press event, but we will be having press events as and when material comes through. I understand fully the issue for users, that they need to know that material has been released. Our view is that it would be sensible for us to alert both the press to this and, of course, to have a notice on our website indicating that more material has come in and is available. That is how we are intending to deal with this issue. If that does not seem to be working or people feel that they still do not know, we will up the press events to make sure that people do understand that material has come through, because obviously, the point of FOI - certainly in the records' sphere - is to make quite sure that people know that this information is now available. Q7 Mrs Cryer: Thank you very much. That is good. We understand also that you are establishing a research service to answer FOI requests. Could you tell us how this will operate? What will be the change for your users and what is your estimate of the cost of providing this service? Will this service cover all FOI requests or only those relating to records that you are holding from other public bodies? Mrs Tyacke: In the case of the last question, it will relate to the material that we hold on behalf of the Government, yes. Places of deposit will be operating similar or analogous systems. In that particular instance, we are talking about material that we hold. As you know, we do have already an extensive on-line service and a catalogue which is available for free. Also, we do preliminary work already for 300,000 visitors a year in answer to their enquiries and obviously, we will continue to do that for free, et cetera. If it becomes evident that the person has a detailed FOI request - having gone through all the issues about opening, closed or whatever - then we will offer a research service which will either be from us or if they prefer from people whom we know can deliver that service for them. In terms of cost, we will bear the initial investigation as we always have done as a public service. If it requires more extensive research then, obviously, that will be paid for by the client. Q8 Mrs Cryer: Did your two colleagues want to add to that at all? Mrs Tyacke: I am not aware that they do. Did you want to say anything? Mrs Healy: No. Mrs Jones: No. Q9 Chairman: Have you got the guidance out to places of deposit yet? Mrs Tyacke: Yes, we have. I think Susan will probably want to say a bit more about that. Mrs Healy: Yes, we have worked with the places of deposit to develop guidance on handling requests for information where they bear on public records which have been transferred to them. That guidance is available on our website, in draft form, as a consultation version with a view to being finalised within the next few weeks. Q10 Chairman: Places of deposit would include local record offices, regimental museums, places like that? Mrs Healy: Museums and galleries, some universities, a wide range of bodies which have been appointed under the Public Records Act to hold public records on behalf of the Lord Chancellor. Mrs Tyacke: I think there are about 240, Chairman. They range from the Hydrographic Department's chart collection down in Taunton through to the papers of the Astronomer Royal in Cambridge University Library and, of course, the material held in the India Office, that material is held in the British Library. I am just saying that so you get a flavour of what we are talking about, we are not talking merely about local government record offices. Q11 Mrs Cryer: Can I just ask, have you any idea how much it will cost your organisation to provide the research service to answer FOI requests? Mrs Tyacke: In terms of what we do already, it will continue to be what it already costs us. In terms of a detailed research, we will be charging the clients. Q12 Mrs Cryer: It is not going to cost any more than it is costing now? Mrs Tyacke: We think that we will be all right on that, yes. Q13 Mr Soley: Just to follow up on that, do you think you will need extra resources or have you got sufficient to deal with the additional costs? I know everybody said we will need more resources but can you give a balanced argument. Mrs Tyacke: We try to do that, obviously. I think the great unknown issue is, of course, the quantity of applications in January, we expect there to be a surge. Obviously we are concerned with the departments that we are viewing as much material as we can, which is earlier than 30 years, with a view to making that open but there is always going to be an issue around resources. We think that by means of having a paid research service we will be able to deal with the resource issue but I would be a brave person to say that all will be exactly well on that front. Q14 Mr Soley: As I understand it, you have two separate legal entities within The National Archive, therefore two separate publishing systems for FOI. Do they overlap? Are you able to merge them in any way or do you have to keep them totally separate? Does that cause you any particular problems? Mrs Tyacke: I am the Historical Manuscripts Commissioner and also the Keeper of Public Records. The Keeper of Public Records deals with the public records' system which is all Government and public record from creation through to disposal, ie to a place for destruction. The Historical Manuscripts Commissioner is there to report on and to give advice and to look at all non public record holdings across the country. The general objective is to give account of the archival health of the nation. The two are in my view complementary but you will understand that under present legislation they have to be kept separate because we do not have legislation underpinning The National Archives at present. Q15 Mr Soley: You have separate people doing the jobs or are they the same people? Mrs Tyacke: At the moment because, of course, this has only just happened in 2003, the Historical Manuscripts Commission colleagues operate to the Historical Manuscripts Commissioner. We are establishing a National Advisory Service with the staff of both the Historical Manuscripts Commission and the Inspection Service which the Public Records Office runs, and the Records Management Advisory Service which we set up because of issues around records' management in 2003, we are putting those parts together. Obviously, administratively these are perfectly capable and very happy to work together and our view is that it will be easier for the public to have a one stop shop so that they know that they go to the National Advisory Service and if they are a private custodian of records they will go to a named person who will deal with those particular issues. I hope that gives you some idea of what we wish to do. Q16 Mr Soley: You do not look for any Government change on that policy which requires you to do two separate applications? Mrs Tyacke: On the policy, I think administratively we are able to make the best of the situation in which we find ourselves. In terms of whether it would be better to have something which underpins The National Archives and, so to speak, what we are putting together in this particular way, I would suggest that probably a proper framework would be more satisfactory. Q17 Mr Soley: Have you made that suggestion to Ministers? Mrs Tyacke: We do go out to public consultation on legislation and one of the elements was that obviously there are other pressing affairs. One of the elements of that was to have some legislative defining of The National Archives and, of course, it might be sensible to consider whether we need a Keeper of Public Records and a Historical Manuscript Commissioner. It might be more sensible to think of a national archivist as other countries do. Q18 Mr Soley: Let us leave that now. Could I ask you, if I made a request to your organisation for instance under the Freedom of Information Act, could you meet the 20 day deadline? Mrs Tyacke: For TNA I would think that would be perfectly possible. Q19 Mr Soley: What do you think the effects of the FOI implementation will be on the rest of your services? That is a very long answered question. Mrs Tyacke: It is. Q20 Mr Soley: Is there anything which stands out in your mind as a particular problem or problems? Mrs Tyacke: We have discussed the issue that we might be swamped, and I think we did talk a bit about that when you visited us. Obviously that is something we have to be very aware of and have to deal with. If we leave that part on one side obviously there would be, in terms of impact upon our services, a readjustment of how we deal with newly released material, ie it is open and we will need to make adjustments there, I think, probably to make quite sure that it is made absolutely clear to the public that that is the case. In terms of the rest of our services, I cannot think that we will be having particular issues but, of course, until it happens it is very difficult to anticipate exactly what will happen. I would say in all my comments in my experience the least expected tends to happen. Although we have risk registers here, there and everywhere, we have to be alert to the fact that things may not go at all in the way that we think, indeed we have made some preparation to try to think what those might be. Q21 Mr Soley: Finally, I know you do not have a formal responsibility to report on how ready other agencies are for the Freedom of Information Act but you are in a position to make some sort of assessment of local authorities over other agencies. I was just wondering if you could give the Committee some idea of your assessment of where other organisations are up to in terms of being ready for the Freedom of Information Act? Mrs Tyacke: Yes. We are coming at it from a very long-term perspective; records management and archives go on forever, well I like to think so. In the particular issue that you are enquiring into and our impression - and it is only an impression - is that in the wider public sector things are coming along, but are patchy. I noticed only last night in the Evening Standard that people are evidently on the move because there is an advertisement in a London local authority for an information and records manager. I think an earlier survey indicated that some authorities did not have such a person and it looks as if they are now moving to do that. Some authorities were having problems getting a policy together and it looks as if that is now moving. This particular post is not only about information and records management, but also is to take on data protection and those other elements which are affected. I suppose it would be true to say that we think the wider public sector is patchy but coming along. In central Government, as I say, there has been a long tradition of records management. Obviously, it would depend very much on the particular question that is put to central departments as to how they are able to manage to answer the question. There are some questions that some departments will probably have a greater impact upon them: I imagine Works and Pensions is one, there are some other departments which may well be around the policy area in records management terms, it would very much depend on the quantity of records that need to be sorted through as to whether, in the event, they are absolutely prepared for FOI. There is guidance; there are systems and it can be done. Q22 Mr Soley: Is there any part of the public sector which stands out in your mind as being likely to be unready? Mrs Tyacke: I think that is probably something that needs to be put to DCA because it has its Ministerial Advisory Committee and all of us from the wider public sector, including ourselves, sit on that. I think it would be better there to put that question there because I think I have said where I have got to on records management from our perspective. Q23 Keith Vaz: The TNA has experience in charging for certain types of access to records, for example, on-line requests. Based on your expertise in dealing with the public, how important a factor do you think the charging regime for Freedom of Information requests will be? Mrs Tyacke: In general you mean, not in the TNA? Q24 Keith Vaz: Yes. Mrs Tyacke: In general, I would have thought it will be quite important. Our own experience is that because we operate a free - paid for - on-line service, an on-site service, that sort of choice that people have is something which they appreciate. We rarely, although we do, get complaints about some of our fees when they are full cost recovery, but of course that is laid down as that is what we are enjoined to do by Treasury. Q25 Keith Vaz: What figure do you think would be suitable to deter the time wasters, yet preserve the principle of reasonable public access to public information because the figure of £575 has been floated as a possibility? You raise your eyebrows, so that must mean that it is too high? Mrs Tyacke: That is a figure which is not known to the TNA. We do not deal in such numbers, I am afraid. That is obviously a figure which will be debated. Government is taking a view of the fees. Q26 Keith Vaz: Do you have an idea of a good balanced figure that would enable you to do your work and the public to get the information? Mrs Tyacke: In our case, I think our fees are set by the Instrument and they range from 30p a sheet through to whatever it happens to be, a scanned document or whatever. I think what I am saying is that it will depend on how the person wants the information; how much information and one should take a pragmatic view about how you deal with that because that is what a normal service providing body would do, as we are. Q27 Keith Vaz: Does the legislation apply to all requests for information from TNA? Mrs Tyacke: It requires us for the corporate record, which is our own record and also for the records that we hold of. In the case of the records in the places of deposit and the historic record in departments, we do have some role. My colleague Susan Healy will be pleased to add to that. Mrs Healy: Yes, the Freedom of Information Act applies to all the information we hold, unless it happens to be environmental information in which case the environmental information regulations apply, a parallel access regime, which brings into UK law the European directive on access to environmental information. Q28 Keith Vaz: Will TNA only charge for Freedom of Information requests concerning its own operations or will it charge for any requests deemed to be a Freedom of Information request, including those which concern the records held by the TNA? Mrs Tyacke: If they are the records which we hold, then we will be operating a mixed economy system. As I described, that is free and then it goes through, depending on the choice of the way forward. I think the answer is, that is what we will be charging for. We will not be charging for other things, that is for other authorities to decide. Q29 Chairman: Does that mean you could have a situation where if I wanted a piece of information and applied first to the department, they slapped on a standard charge, but you had the material, I did not realise that. If I go straight to you, you are much more benevolent and you would not charge unless I started to incur costs. Mrs Tyacke: Obviously, it would be important for anybody who approaches whichever public authority to be told where the material is. Q30 Chairman: Would they be told that without charge by the department? Mrs Tyacke: I would imagine so, but I cannot speak for them. Q31 Chairman: They would not be charged for the department trying to find out whether it had sent the material to you or not? Mrs Tyacke: I would hope not. Q32 Ross Cranston: I was going to raise an issue about the extent to which you do get spurious inquiries. You showed us, for example, the military history room, the family history room and those people seem to have a genuine interest in their ancestors and so on. Is this a false premise that there are a range of people out there who are going to try to gum up the system? It seems to me this may be a false premise and any charging regime should not be based on the notion that there are certain people out there who are going to try and gum up the system. Mrs Tyacke: Again, I would say it would depend very much on what sort of record people are going to ask for and in our case, we are very responsive, I hope, to the needs of present users. Q33 Ross Cranston: I think you said that there were 300,000 enquiries. Mrs Tyacke: Yes, visitors. Q34 Ross Cranston: Of those 300,000 visitors, how many are - to use the colloquial - nutters? Mrs Tyacke: Very few. Complaints run at something like 50 a year, which is apparently very good. Q35 Ross Cranston: They come to us instead though. Mrs Tyacke: I answer enquiries from everybody. Q36 Mr Cunningham: In relation to good records management, do you think you started early enough? Mrs Tyacke: In the case of records management - taking a long term view - it would be true to say that it is a perennial issue, records management. In terms of FOI, I would say that in terms of getting policies in, this seems to be happening now across the wider public sector. In some areas there are some very good policies, very good operational staff and in others perhaps not so good. As I say, in terms of the central departments, there is a long tradition of departmental record officers, but they are designed under the old system, if you like. My view is yes, we did start soon enough, but the proof will be in the pudding as to whether the questions will be asked. Q37 Mr Cunningham: At what point was the public sector provided with model action plans for records management? Mrs Tyacke: I think I am right in saying about two years ago, but Susan will know. Mrs Healy: The code itself was laid in November 2002 and the model action plans appeared shortly after in sequence: central government, then local government and then other parts of the public sector. For each of them, we worked with representatives of that sector to produce an action plan which would be suitable for their particulars needs. Q38 Mr Cunningham: What steps do you take to ensure that these action places are implemented? Mrs Tyacke: It depends which part of the wider public sector we are talking about. If it is central departments then we have systems in place, as we always have done, to enquire, to inspect and to give supervision, guidance and co-ordination in this matter. For the wider public sector, we set up the Records Management Advisory Service in May 2003 because from our own places of deposit inspections' system, which is the 240 places that I referred to earlier, it became clear that advice would be welcomed by local authorities in particular and by other public sector bodies. We are not in a position to operate any form of regulatory system there but we can give advice, we can suggest as we have for central Government what are the steps in order to make sure that you have a decent records management system in place which will meet the requirements of information legislation, including FOI. Q39 Mr Cunningham: Who is responsible for making any assessments of these models? Mrs Tyacke: That will be the Information Commissioner. Q40 Mr Cunningham: You do assessments? Mrs Tyacke: Yes. As it says in the Act it will be the Information Commissioner who is responsible for promoting both codes, the Access Code 45 and the Records Management Code. At 47(5), he is enjoined to consult the Keeper of Public Records and the Deputy Keeper of the Northern Ireland Record Office in respect of records management issues. Under a Memorandum of Understanding with the Information Commissioner we will be working with the Information Commissioner where it is relevant to our public records' duties. Q41 Mr Cunningham: In its annual report TNA emphasises its role in providing advice to Government, national and local, on records management. How has this manifested itself in the run up to the Freedom of Information Act implementation? Mrs Tyacke: This has meant that we have been proactive and under the roll out, which DCA is leading, we have contributed quite considerably to records management and other issues. On this particular issue I would like to ask Susan to make further additional comments. Mrs Healy: We have concentrated on providing advice and support in getting records management right for FOI. We have done this, firstly, by issuing the model action plans which I mentioned earlier and, secondly, by contributing to the various road shows around the country which were organised by the Department for Constitutional Affairs, former Lord Chancellor's Department, where we had a slot on records management and we did workshops on aspects of records management. We have contributed to general events like that. We have contributed, also, to conferences for FOI and we have run particular seminars and workshops for records managers. The third element is the guidance which we publish and we have published a lot of guidance in both print form and on our website which is accessible to anybody which sets out good practice in various aspects of records management and includes things like model disposal schedules, setting out recommended periods for which particular types of records should be kept. What we have been doing is providing the tools and the means for organisations to put good records management in place. Mr Cunningham: What is your focus on unitary and county councils? Why those in particular? Q42 Chairman: As opposed to districts. Mrs Healy: Are you referring to the model action plan aimed at local government? It was not aimed specifically at principal councils, it was aimed at local authorities generally but I think would be of more use to principal and district councils than, say, to parish councils. Q43 Mr Cunningham: Which groups and organisations have best practice in place? Mrs Tyacke: Difficult. Mrs Healy: There are some very good councils which have really good practice in place, others are improving. It is difficult to single out examples. Q44 Chairman: Are some a long way behind? I am putting words in your mouth. Mrs Healy: Some are improving. Mrs Tyacke: Some have appointed an information and records manager. Q45 Mr Cunningham: How long will it be until the good records' management is being practised across the public sector in your assessment? Mrs Tyacke: It is a bit like the Forth Bridge in the sense that you have to keep going on things like records management and archival services. It is never ending and you will find that over time things will improve but, equally, from time to time, they can go the other way. I would think that it is like some of the other things we have been trying to do, it is always a long haul when it comes to records management. Q46 Chairman: Going back to Mr Cunningham's earlier point, you did say in your annual report "...initially we are focusing on the needs of unitary and county councils although we will respond positively to inquiries from other bodies." Mrs Tyacke: Yes. Q47 Chairman: We took that to mean that was where you were directing your effort? Mrs Tyacke: I think that is a practical, pragmatic view of what we thought we could manage to do. Q48 Chairman: The chances are that some small districts, who do not really have the critical mass to have a dedicated officer in this area, might be the ones with the biggest problems? Mrs Tyacke: Thank you for that and certainly we will look at that again. Q49 Dr Whitehead: Could I turn to electronic record management. One of your targets for 2003-04 was to encourage other Government departments to achieve electronics records management by 2004. How have you encouraged them? Mrs Tyacke: Again, by putting in place guidance and also by forming an electronic records management cross government committee to drive this forward and also providing them again with the tools. It is all very well to say "You are all using PCs, it is necessary now for you to put in place proper records management" but obviously people require assistance to do that, it is our job to put that in place. Since 1995 we have had an electronic records management group across Government. One of the first steps we took was to encourage providers of electronic records management systems to come forward and to comply with what we and the other departments regarded as a proper records management requirement. I do not mean, therefore, merely a document handling activity like Outlook or whatever, I mean a records management requirement. My view is that we were successful in that, we have continued to test software products with a view to making sure that there are those products available. I am satisfied those products are available which is why we have been able to make some inroads into electronic records management over the past three or four years. Q50 Dr Whitehead: Which Government departments would you say have been most encouraged by your efforts? Mrs Tyacke: I would like to say all of them. Q51 Dr Whitehead: If you had to say? Mrs Tyacke: DCA, of course; the Foreign and Commonwealth Office and the Treasury, of course, have long traditions and had already been pioneers in this area building themselves bespoke systems. Those who have come on strongly are departments like the Department for Trade and Industry. It becomes a little invidious but I have mentioned some departments who I believe have done very well indeed. Q52 Dr Whitehead: What about those departments who have done less well? Mrs Tyacke: All the departments are now sensitised to this issue and we believe that most of them will have got some way towards this during the course of next year. Q53 Dr Whitehead: How do you monitor that progress? Mrs Tyacke: We monitor it quarterly and we put reports into the Secretary of State and also to the departments concerned and, of course, the cross Government group that I spoke of looks at this and gives us advice as to what steps they feel would be most useful. At the moment their view is that we should assist in making clear to departments where people have been successful so that others can learn and also in looking at benefits realisation of one sort or another, so that is what we are trying to concentrate on. Our view is, obviously, the Records Management, Advisory Service for the wider public sector should take advantage of some of this work when it is appropriate. Thus, hopefully, over a course of time, best practice in this field will get to other parts of the public sector and also, where they wish to the private sector. There are now many more practitioners in this field and records management is now a recognised activity by most organisations and although I am never over-optimistic or even optimistic in this area, I do think that some inroads have been made. Q54 Dr Whitehead: When your monitoring demonstrates particular departments are falling behind, what sort of action might you take to assist them to catch up? Mrs Tyacke: Obviously we monitor as carefully as we can on the route map. We know whether they have a policy, we know whether they have done this or done that which seems sensible to us and to the departments on the group that I spoke of. If it appears that there is an issue, for whatever reason, then my colleagues will obviously go to visit the department. If there seems to be a real issue which is unresolvable at that level then obviously I take a personal interest and I will go to visit myself. Q55 Dr Whitehead: Do you think electronic records management is a particular challenge across the whole sector? Mrs Tyacke: Yes. I think it is a particular challenge for all organisations, both public and private. The issue colleagues had when they came to visit us is that not only is there the issue of managing the record as it is produced, but it is the issue of preserving those records that you need for business purposes and then ultimately for the historical record of this country or of the organisation concerned. This is a very serious issue. We have begun to deal with it, in the sense that we have established a digital archive facility at The National Archives which is able to take digital records from Government which are worthy of preservation under the Public Records Act. To say that it is not challenging, I would need to be very complacent indeed. It is challenging and it is something which affects all countries, not just one sector. Q56 Dr Whitehead: It is challenging for you in particular, is it not, in as much as - again I think that this was touched upon when we visited you - the suggestion is that a number of Government departments may decide that particularly with the change in the 30 year rule the correct repository for their electronic records at a very early stage is you, perhaps on the grounds that you can then sort out the problems of incompatible formats and jumbles of information in the way that perhaps they would not wish to. Mrs Tyacke: There is always a tension between wishing to use The National Archives in the way that you suggest and taking responsibility for the records which you need for your business purposes within a department or an organisation. I am sure that we will have negotiations along the lines that you are suggesting. In some cases, it will be sensible for the record to come through so that it is early release in accordance with FOI and the public know exactly where it is or whatever. In other areas it would be a question of a department themselves taking responsibility for the records that they need for their own business activities and coming to an arrangement with us as to when it will be suitable for the record to move, if I can put it that way, or be disposed of to another place of deposit or whatever. Q57 Dr Whitehead: Does that mean though you are going to get very inconsistent policies on record releases across Government departments? Mrs Tyacke: Obviously it will not be time dependent because the 30 year rule is abolished except where exemptions are continuing up until that point. There are issues round that, but I think I mentioned when I was answering Ann Cryer, a view about that is in order to make sure the public know, and indeed other stakeholders including Government itself, it is sensible that we do say what is being released as it is released and then it moves into the catalogue of our holdings, accordingly so. We are alert to this issue because it would be unfortunate if confusion was the order of the day. I do not think it will be but it does mean that we have to do something at the departments as well because obviously they need to say what has been released. Q58 Dr Whitehead: Outside central Government, firstly to what extent do you think electronic records management is being embraced; secondly, an issue that you may have concerned yourself about is that certainly the experience outside central Government of their earlier version of FOI, the disclosure of information legislation as far as local Government is concerned, seems on occasions to have caused a number of local Government officers to decide the best way to keep records which would not be subject to the gaze of history will be to put them all on emails and delete them. Therefore your records that will come your way will simply be the sanitised version of history as approved by those people with access to a delete button. Mrs Tyacke: I could say the same could happen with paper. It is just that we are not so used to electronic, therefore we suppose its fragility is more than paper. In some respects it is but in other respects it is not, after all a hard disk will retain material even if you have hit the delete button. Digital archaeologists are already abounding I understand so I hope that will not come to pass. In terms of emails, emails are public records. There is email guidance on our website for central departments and everyone else who wants to look at it and it explains how you should deal with emails, if they are corporate record and records which are important to the business it does describe what you should do. Obviously, it is perfectly legitimate to dispose of records/emails when they are no longer needed for the business but it is critical that you should have a policy in place which makes it quite clear to anybody who is making application to you that you have a policy in place as to the deletion/disposal of email as one would with paper records and I think that seems to me to be a sensible way forward. Q59 Chairman: In 30 years' time, do you think we would have been able to find and access as comprehensive a range of emails as was produced to the Hutton Inquiry? Mrs Tyacke: The answer to that is probably yes. It is difficult to say in terms of any particular category but the opportunity to record more is obviously with us now because of emails because they are closer to text, if not text itself than, say, the telephone call. The telephone call did mean that, of course, there had been some uncertainties in the record in the past. It seems to me that the advent of email, obviously we are talking about corporate record, we are talking about business record, public record, we are not talking about asking the boys down the pub for a drink although conceivably that might get caught up in the record. I do not see that there is any reason to suppose we will get less of a record. Q60 Chairman: The same cleaning process that might remove the request to go down to the pub might well be used to remove the incriminating emails which were produced. Mrs Tyacke: As I was describing, I hope, there should be a proper policy, there should be somebody who is responsible: the information and records management person. That person should be responsible to the head of the organisation for that policy and for carrying it out. Q61 Peter Bottomley: I hope I am right in saying that the ability to search and to sort becomes far easier now than ever it was before. Mrs Tyacke: Yes. Q62 Peter Bottomley: Which may raise other Freedom of Information issues but in terms of having available to you what is there, there are advances? Mrs Tyacke: Yes, I think there are. Q63 Mr Soley: Can I clarify, it seems to me the whole problem of saving modern data is a problem but it still has to be machine readable 30 years from now. Mrs Tyacke: Indeed. Q64 Mr Soley: Given that the systems are changing, whether you are talking about a particular Word or WordPerfect system as a software system or indeed the hardware itself, you will have a problem, will you not, either you will have to update all those records that you have got every time a system is changed or, alternatively, you have to find some computerised way of reading from what will become outdated hardware and software systems? Mrs Tyacke: Yes. This is something which has been taxing the world for some time now. I think it would be true to say that the Nordic countries in Europe and ourselves and, of course, the Canadians, Americans, Australians in particular have been thinking about this, not only thinking about it as I have described but trying out, in our case, a digital facility. We would not think it sensible to go down the route of becoming a museum of obsolete programmes but what you do need to know - and one of my colleagues has been a pioneer in this - is what the programmes, past programmes, stipulate. We have produced something which is called PRONOM which records the programmes that records are put on. We have, if you like, a database open to other institutions to use which explains what the specifications of that programme are. This is not because we then wish to be in a position to read everything 30 years, 40 years, 50 years, a hundred years, a thousand years down track as it was, it is because our current view is the most sensible way forward is to migrate. Most systems tend to be changed on a three to five year cycle; it seems much more sensible to pursue that. At that stage, of course, the organisation which might be wishing to deliver material to us can see which records it really thinks it needs to preserve and, then we will get into the business that your colleague was asking me about, early release, et cetera, and may wish to move material over. What we would seek to do, and it is our current opinion and that of the rest of the world, is to pursue this migration policy, moving the record over to a new system as and when the digital archive is able to deal with the formats that are already existing, and we would hope to be able to continue with that. That does mean, of course, that the digital record will not necessarily be like the paper record which comes in in boxes and 50 or 60 years later, probably a bit dusty, it will be the same as it was when it came in. There are issues - hence the public consultation on legislation - around how to deal with the digital record for those reasons. Q65 Peter Bottomley: Can I ask what the meaning is of the diplomatic and palaeographical context of the record? Mrs Tyacke: The diplomatic and palaeographic of the paper record or and of the digital record is to do with the context of that record and the who, why, whats and whens of the record as well as the physicality of it. In the digital world, it is the medium, the same as it is in the paper parchment world. Those are particularly important issues as we move from paper to digital. You cannot just say, "oh well it is information"; it is information with resonance and the resonance is described by these palaeographical and diplomatic elements. Q66 Chairman: They are also issues of authenticity and verification. Mrs Tyacke: It is very important. Q67 Ross Cranston: I wanted to get your conclusion on this issue of the history of the country. Mrs Tyacke: Yes. Q68 Ross Cranston: In 20 years' time are we going to be able to have a more accurate account of the Blair Government than say the Macmillan Government? Mrs Tyacke: In our case, of course, we are interested in the authenticity of the record. It is not for us to say whether it is accurate or not accurate. It is what was said at the time, et cetera. I cannot imagine that there will be any particular difference. Q69 Ross Cranston: No. I meant in terms of volume of information available to the historian, is that the professional view? Mrs Tyacke: In terms of the quantities obviously it is difficult. It is a bit like when the photocopying machine came in, although we hoped there would only be one record, in many cases there was duplication and that does, of course, come through I think probably with the systems which are now with us, it may well be that the volume will be greater. It is stronger than that because I do not know any more than you in that sense, we will have to see what happens. Q70 Ross Cranston: I just wanted to know in terms of the professional view, the professional view amongst historians? Mrs Tyacke: If you are thinking in digital terms, vast quantities of material will be public record, yes. When you visited, one of my colleagues showed both the video sequence of some evidence in court as well as the evidence given in terms of a multi-media item which showed what had happened to a particular ship. In terms of volume, absolutely the volume will be quite vast. Q71 Chairman: The other difference surely is that the Macmillan Government would not have telephone calls of some embarrassing conversations whereas we have an email which says "This is a good day to release bad news". Mrs Tyacke: Which is public record. Q72 Chairman: Can we just turn to the Information Commissioner, you have regular meetings Mrs Tyacke: Yes. Q73 Chairman: You are working on a formal memorandum of understanding on records management and that is well underway. Mrs Tyacke: Yes. Q74 Chairman: That is one of these vague expressions, what does it mean? Mrs Tyacke: It means we are getting into the position to understand what we will be doing at 47(5) of the Act and under section 46, the Code of Practice, where the records management code says what the records management situation is or should be under FOI across the wider public sector. The Memorandum of Understanding is to enable his office and our office to make sure that we are not only being consulted where necessary but also we are offering assistance when the Information Commissioner feels he requires some support in looking into a records management issue which may have been brought to his attention by the various means that are within the Act. Susan may wish to add? Mrs Healy: It is worth bearing in mind that under the Public Records Act, section 3 gives the Keeper of Public Records the responsibility of guiding, supervising and co-ordinating Government departments in the management of their records. That is not affected in any way; it is not amended by the FOI Act. Therefore, the Keeper of Public Records and the Information Commissioner do work together to ensure a consistent line is taken in the management of records, particularly where the public record bodies are concerned. That is what a memorandum would seek to set out, the way in which they would work together. Q75 Chairman: There is a significant overlap of responsibility here, is there not? Mrs Tyacke: I think it is quite clear who has the enforcing power that is the Information Commissioner. It seems to me our role continues as it always has done which is to guide and give advice. I do not think there is an overlap, in so far as there might be some concern about that, that is why the memorandum of understanding I think will deal with that. I am quite confident we will get a very good working relationship with the ICO on that matter. We meet after all and I am sure in a pragmatic way we can deal with the issues. Q76 Chairman: But, he is in Wilmslow and you are down here? Mrs Tyacke: Yes, but we meet each other, off and on. Q77 Chairman: Would there be merit in some temporary exchange of personnel, secondment and that sort of thing? Mrs Tyacke: There might be. In terms of what we do, we are very much records management archivelly oriented which is only a small part of that which he needs to do under FOI and indeed data protection. So far what we have done is we have invited his colleagues to come to visit us and observe the Advisory Council at work so they have an understanding of what we try to do. We do and have gone up there, under the previous ICO data protection regime we have gone up there to see what they do. Certainly I will take that back and think about it, that might be helpful. Thank you. Q78 Peter Bottomley: Freedom of Information legislation, how does it affect your existing legislative basis for record keeping under the 1958 and 1976 Acts? Mrs Tyacke: The 30 year rule goes. From our perspective unless a department as they release material to us recommend an exemption, that recommendation will go on to our catalogue so it is quite clear to anybody who looks there is a recommended exemption. The public are entitled to ask for a review and it will be, as far as I am concerned, transparent in that sense. In terms of the transfer of material, if that material has not been released to us earlier, it will come in by 30 years anyway when the exemptions of course fall. Q79 Peter Bottomley: Can we move on to where the Data Protection Act has caused difficulties in implementing the Freedom of Information Act? Mrs Tyacke: It should not in terms of our holdings. We are aware there are some areas where it might be thought to. In this particular aspect I am not expecting there to be particular issues over the holdings that we have. We are and always have been alert to data protection issues. There may be some of course and it may be sensible if I ask Susan how far we have got on that? Mrs Healy: The Data Protection Act at the moment applies to a very small proportion of our holdings because, of course, it only applies to information about living individuals and by the nature of things the vast majority of our holdings relate to dead people. It does apply to a small proportion. From January 2005, it will apply to slightly more because the FOI extended the scope of the Data Protection Act to bring in more data. What that means for us when we are releasing information we are looking at whether exemptions apply; whether or not there is an impediment in the Data Protection Act to releasing the information; whether or not it would be unfair to the subject of the information for that to be put in the public domain, looking at the nature of the information, the age and the effect of disclosure and that is what section 40 of the FOI Act requires us to do. It is the exemption of personal information which requires us, when looking at third party access to personal information, to consider whether providing that access would be in breach of the Data Protection Act. That is really carrying forward something we have done for many years anyway which is looking at personal information, the effect of disclosure, and whether or not it needs to be withheld. Q80 Peter Bottomley: Last year you had a consultation on the possible advantages and scope of new legislation covering you. Mrs Tyacke: Yes. Q81 Peter Bottomley: Not just dealing with footnote 8 at page 23, where I noticed you did not have the power to define what a public record is, which seemed a gap in itself. Can you tell us what the benefits of the legislation are likely to be? Mrs Tyacke: I touched, I think, upon the issue of The National Archives itself and I do not wish to go over that again if that is all right? The public consultation was positive in this respect, that there does seem to be a need for there to be a proper framework to underpin the records management and archival element of the raft of information legislation that is coming through. Obviously there are elements already in existence, and I would not wish to over rate the necessity to do this but it did seem to us that we should go out to the public with the public consultation document about various duties which would make it easier for departments and other public sector bodies to comply because they would have a proper framework over and above that of the Public Records Act. The first duty that we asked people to give us a view on was whether there should be a duty to create records and we had a positive response to that. The second, should there be a framework for monitoring and for taking steps to make sure that this framework is in place, there are elements obviously already there but there is not a proper framework to do that. There are bodies out there who could perhaps undertake some of that type of work. We are looking basically to get records management embedded, if you like, into the public sector as well as, of course, central Government. At the moment everything is administrative but we have moved very sharply into compliance regimes and if you have compliance regimes you need to be able to show that you have ways of meeting those compliance regimes which have, in our view, a need for some legislative underpinning and then, of course, the critical issue which is very critical is to have a way of dealing with the digital record beyond the administrative ways that I have outlined already. We have to be sure that what we may be doing practically does in fact mean that a digital record when it goes to court is in fact a record which is reliable and authentic for evidential reasons otherwise while I can tell you that the Domesday Book is the Domesday Book it may be not too easy to convince you that something that came through last week is what it purports to be. I think there should be some legislation on that particular issue, not in the sense of saying you have to use this, that or the other, that would be silly, but in terms of making it clear what the record is that we are talking about. Q82 Peter Bottomley: Do you know how many clauses a possible Bill might have? Mrs Tyacke: As many as are necessary or, I should say, as few as are necessary. I am sure a short Bill would be sensible. Q83 Peter Bottomley: Do you know if the Department has authorised the drafting of the Bill yet? Mrs Tyacke: Remember that this was a public consultation document and we have put various proposals to Ministers. These are being discussed now and obviously the legislative programme is for others to determine. Q84 Ross Cranston: Have other comparable jurisdictions updated their legislation so that there is a model? Mrs Tyacke: Yes. Q85 Ross Cranston: Such as? Mrs Tyacke: Australia in particular but the Netherlands has quite a recent Act if I recollect correctly. Ross Cranston: You have set your stall out very well and I think we are very sympathetic to you on that one. Q86 Chairman: Thank you very much indeed. We are most grateful for your help. I wonder if I could draw attention before I close this meeting that the House has been asked to observe a minute's silence at 11 o'clock as a mark of sympathy for the tragic events in Beslan which will be in nine minutes' time. Thank you very much indeed for your help this morning. Mrs Tyacke: Thank you very much for inviting us. |