Public records
6.1 A Freedom of Information Act will have a considerable impact on our public records system. Government records of historical value are selected for permanent preservation and, when they are 30 years old, they are made available to the public in the Public Record Office.[9] "Records" includes not just written ones but records in any form (for example e-mail).
A unified Act
6.2 The Government wants the two systems - Freedom of Information for current records and Public Records for historical records - to complement each other to give a unified approach to openness. We therefore propose that the FOI 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.
6.3 At present there are both statutory and non-statutory rules governing access to historical material:
- the Public Records Act 1958 sets out the responsibilities of the Lord Chancellor as the Minister responsible for public records, the powers and duties of the Keeper of Public Records and the general rules governing the access to and selection, preservation and destruction of, public records;
- the Public Records Act 1967 sets the statutory closure period after which records must be made available for public inspection as 30 years, except for certain defined reasons;
- the 1993 White Paper on Open Government contains more specific guidance on the criteria for extended closure of public records and the retention of documents in Departments.
6.4 We propose that those rules relating to access rights to historical records be incorporated into the FOI Act (other aspects, such as the role and responsibilities of the Public Record Office, will continue to be covered by a separate Public Records Act). This does not mean that exactly the same access provisions for current records will apply to historical records. Those for historical records will reflect the fact that their sensitivity has decreased due to the passage of time. In moving toward a unified Act, we want to take the opportunity to improve the public's right of access to historical records.
The 30 year rule
6.5 At present, historical records must be made available to the public - in the Public Record Office - after 30 years. We have examined carefully the case for change and concluded that on balance it is preferable to retain the 30 year rule which is in line with international practice. In particular, we do not think that meeting the considerable costs of reducing the 30 year rule for all historical records would constitute the best use of scarce public resources.
6.6 Instead, under the new FOI regime which we are introducing, more records should be released before 30 years. Fewer records will be withheld for the full 30 years. This will mean that 30 year old records will generally be of a greater sensitivity than before. We think it right therefore that the threshold date should be set at 30 years, a period long enough to enable the great majority of these historical records then to be released to the public. One of the virtues of this system, in comparison with practice elsewhere, is that there is a set date by which it is known that records are going to be listed and be available for the public to use. This will continue.
Criteria for withholding documents for longer than 30 years
6.7 The overriding presumption is that all records preserved for historical reasons will be made available to the public at 30 years. The 1993 White Paper on Open Government laid down the strictly-defined criteria that must be met if they are to be withheld from the public for longer than 30 years. As part of our general approach to giving access rights a statutory basis, we propose to incorporate these criteria into statute, so that they have the same status as the tests governing access to current information.
6.8 The criteria relate closely to some of the specified interests identified for FOI purposes: defence, international relations and national security; information provided in confidence; and personal information. We will take the opportunity of the FOI Act to reformulate the criteria to reinforce this relationship.
6.9 We also propose to introduce an upper time limit of one hundred years on the withholding of material. Such a ceiling means that no information would be left indefinitely undisclosed either because it is not subject to any statutory disclosure requirement or because it is subject to statutory provisions which bar its release. We fully expect that virtually all of the public records held beyond 30 years because of their continuing sensitivity will cease to need protection after 100 years. However, because of the inherent sensitivity of the records in question we propose to test whether their disclosure could still cause substantial harm to the public interest.
Application of the criteria
6.10 Applications from departments for the extended closure or retention of documents beyond 30 years are put to the Lord Chancellor who is advised by his Advisory Council on Public Records. We propose to give the Advisory Council the statutory support of the Public Record Office so that such applications are checked against the relevant statutory criteria.
Right of appeal
6.11 The present route of appeal against extended closure or retention of records beyond the 30 year period - to the Lord Chancellor's Advisory Council - is unsatisfactory. The Council and its little-known powers are limited to making non-binding recommendations on disclosure. Furthermore the Council is itself involved in the initial decision to close or retain material. We propose to direct appeals on public records to the independent Information Commissioner.
The importance of record-keeping
6.12 An FOI Act can only be as good as the quality of the records which are subject to its provisions. 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. The fast-growing use of IT will further increase pressure on the records system. We therefore propose to place an obligation on departments to set records management standards which take these changes into account, having regard to best practice guidance drawn up by the Public Record Office.
[9]The vast majority of records have little historical value and are therefore destroyed before they are 30 years old.
|
