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15. Purpose of Part 2
16. Selection of public records for permanent preservation
17. Retention or transfer of public records
18. Determining the access status of public records before transfer
19. Transmission of public records
20. Access after transfer of public records

15  Purpose of Part 2

15.1   This part of the Code applies only to authorities which are subject to the Public Records Act 1958 or the Public Records Act (Northern Ireland) 1923. Under those Acts, authorities are required to identify records worthy of permanent preservation and transfer them to The National Archives¹⁶, a place of deposit for public records or the Public Record Office of Northern Ireland as appropriate. This part of the Code sets out the arrangements which those authorities should follow to ensure the timely and effective review and transfer of public records. Arrangements should be established and operated under the supervision of The National Archives or, in Northern Ireland, in conjunction with the Public Record Office of Northern Ireland.

15.2   The general purpose of this part of the Code is to facilitate the performance by the authorities, The National Archives, the Public Record Office of Northern Ireland and places of deposit of their functions under the Act. In reviewing records for public access, authorities should ensure that public records become available at the earliest possible time in accordance with the Act and the EIR.

16  Selection of public records for permanent preservation

16.1   Section 12 of the Code describes the arrangements that authorities should follow for the disposal of records. In this context, disposal means the decision as to whether the record should be destroyed, transferred to an archives service for permanent preservation or presented¹⁷ and the putting into effect of that decision.

16.2   Authorities that have created or are otherwise responsible for public records should ensure that they operate effective arrangements to determine which records should be selected for permanent preservation in accordance with the guidance in section 12.

17  Retention or transfer of public records

17.1   Under the Public Records Act 1958, records selected for preservation must be transferred by the time they are 30 years old¹⁸ unless the Lord Chancellor gives authorisation for them to be retained in the department for a further period under section 3(4) of the Public Records Act 1958. Records may be transferred earlier by agreement between the parties involved.

17.2   Public records may be transferred either to The National Archives or to a place of deposit for public records appointed by the Lord Chancellor¹⁹ under section 4 of that Act. For guidance on which records may be transferred to which archives service, and on the transfer of UK public records relating to Northern Ireland, see Annex B. For the avoidance of doubt, Part 2 of the Code applies to all such transfers.

17.3   Authorities should submit applications to retain records for a further period to The National Archives for review and advice. The Lord Chancellor’s Advisory Council will then consider the case in favour of retention for a further period. The Advisory Council will consider the case for retaining individual records, or coherent batches of records, on the basis of the guidance in chapter 9 of the White Paper Open Government (Cm 2290, 1993) or subsequent revisions of Government policy. Some categories of records are covered by a standard authorisation by the Lord Chancellor (known as ‘blanket retentions’) which are reviewed every 10 years.

17.4   In Northern Ireland, transfer under the Public Records Act (Northern Ireland) 1923 to the Public Record Office of Northern Ireland takes place normally at 20 years. Under section 3 of that Act, records may be retained for a further period if the principal officer of the department, or a judge if court records are involved, certifies to the Minister responsible for Northern Ireland public records that they should be retained.

18  Determining the access status of public records before transfer

18.1   Authorities preparing public records for transfer to The National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland should review the access status of those records. The purpose of this review is to:

• Consider which information must be available to the public on transfer because no exemptions under the Act or the EIR apply;
• Consider whether the information must be released in the public interest, notwithstanding the application of an exemption under the Act or the EIR;
• Consider which information must be available to the public at 30 years because relevant exemptions in the Act have ceased to apply; 20
• Consider which information should be withheld from public access through the application of an exemption under the Act or the EIR.

18.2   Those undertaking the review should ensure that adequate consultation takes place, both within the authority and with other authorities that might be affected by the decision, for example authorities that originally supplied the information. This is particularly advisable for records being transferred earlier than required.

18.3   If the outcome of the review is that records are to be transferred as open, the transferring department should designate the records as open. There will be no formal review of this designation by The National Archives, places of deposit or the Public Record Office of Northern Ireland.

18.4   If the outcome of the review is identification of specified information which the authority considers ought not to be released under the terms of the Act or the EIR, the authority should prepare a schedule that:

• Identifies the information precisely;
• Cites the relevant exemption(s);
• Explains why the information may not be released;
• Identifies a date at which either release would be appropriate or the case for release should be reconsidered.

18.5   Authorities should consider whether parts of records might be released if the sensitive information were redacted, i.e. rendered invisible or blanked out. Information that has been redacted should be stored securely and should be returned to the parent record when the exemption has ceased to apply.

18.6   The schedule described above should be submitted to The National Archives for review and advice prior to transfer. If the outcome of the review is that some or all of the information in the records should be closed after it is 30 years old, the schedule will be considered by the Advisory Council. The Advisory Council may respond as follows

• By accepting that the information may be withheld for longer than 30 years and earmarking the records for release or re-review at the date identified by the authority;
• By accepting that the information may be withheld for longer than 30 years but asking the authority to reconsider the later date designated for release or re-review;
• By questioning the basis on which it is considered that the information may be withheld for longer than 30 years and asking the authority to reconsider the case;

18.7   If the Advisory Council accepts that the information should be withheld, the records will be transferred as closed (in whole or in part as appropriate) and the relevant closure period applied.

18.8   The schedule described at paragraph 18.4 should be submitted to the Public Record Office of Northern Ireland for review and advice.

18.9   If the outcome of the review is that the records should be closed after transfer, the schedule will be considered by the Sensitivity Review Group. The Sensitivity Review Group may respond as follows:

• By accepting that the information should be withheld for longer than 30 years and earmarking the records for release or re-review at the date identified on the schedule;
• By questioning the basis on which it is considered that the information may be withheld for longer than 30 years and asking the responsible authority to reconsider the case.

18.10   If the Sensitivity Review Group accepts that the information should be withheld, the records will be transferred as closed (in whole or in part as appropriate) and the relevant closure period applied.

18.11  Places of deposit should be informed which records cannot be made publicly available on transfer, which exemptions apply to the information they contain and for what reason, and for how long those exemptions should be applied.

19  Transmission of public records

19.1   It is the responsibility of authorities transferring records to ensure that those records are adequately prepared and are transferred with the level of security appropriate to the confidentiality of the information they contain.

20  Access after transfer of public records

20.1   For the avoidance of doubt, none of the actions described in this Code affects the statutory rights of access established under the Act or the EIR. Requests for exempt information in public records transferred to The National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland will be dealt with on a case by case basis in accordance with the provisions of the Act or the EIR.

20.2   When an exemption has ceased to apply under section 63 of the Act the records will become automatically available to members of the public at the date specified in the finalised schedule (i.e. the schedule after it has been reviewed by the Advisory Council or the Sensitivity Review Group as appropriate).

20.3   In other cases, if the authority concerned wishes to extend the period during which the information is to be withheld, it should submit a further schedule explaining the sensitivity of the information. This is to be done before the expiry of the period stated in the earlier schedule. The process outlined at paragraphs 18.6-18.10 will then be applied. In Northern Ireland, Ministerial agreement is required for any further extension of the closure period and referral to the Minister will be an additional stage in the process.

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