< The Management of Records

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The Management of Records

Introduction
Importance of records management
Role of the Information Commissioner
Authorities subject to the Public Records Acts
Role of the Lord Chancellor’s Advisory Council on National Records and Archives 7 and the Sensitivity Review Group in Northern Ireland

Introduction

  1. The Code of Practice (“the Code”) which follows fulfils the duty of the Lord Chancellor set out in section 46 of the Freedom of Information Act 20001 (the Act). This foreword provides background but does not form part of the Code itself.
  2. The Code is in two parts. In Part 1, the Code provides guidance to all relevant authorities as to the practice which it would, in the opinion of the Lord Chancellor, be desirable for them to follow in connection with the keeping, management and destruction of their records. This applies not only to public authorities but also to other bodies that are subject to the Public Records Act 1958 or the Public Records 2 Act (Northern Ireland) 1923. Collectively they are called relevant authorities.
  3. The Code also describes, in Part 2, the procedure to be followed for timely and effective review and transfer of public records to The National Archives 3 or to a place of deposit (as defined in section 4 of the Public Records Act 1958) or to the Public Record Office of Northern Ireland under the Public Records Act 1958 or the Public Records Act (Northern Ireland) 1923. 4

    4. 1    The Act can be seen at http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_1.
    2    Public records are the records of bodies that are subject to the Public Records Act 1958 or the Public Records Act (Northern Ireland) 1923. For the avoidance of doubt, the term ‘public records’ includes Welsh public records as defined by section 148 of the Government of Wales Act 2006.
    3    The legal entity to which this provision applies is the Public Record Office. Since April 2003 the Public Record Office has
    functioned as part of The National Archives and is known by that name. For that reason the name ‘The National Archives’ is used in this Code.
    4    The Public Records legislation can be seen at http://www.nationalarchives.gov.uk/documents/public-records-act1958.rtf and
    http://www.proni.gov.uk/public_records_act_1923.pdf respectively.
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    Importance of records management

  4. Freedom of information legislation is only as good as the quality of the records and other information to which it provides access. Access rights are of limited value if information cannot be found when requested or, when found, cannot be relied upon as authoritative. Good records and information management benefits those requesting information because it provides some assurance that the information provided will be complete and reliable. It benefits those holding the requested information because it enables them to locate and retrieve it easily within the statutory timescales or to explain why it is not held. It also supports control and delivery of information promised in an authority’s Publication Scheme or required to be published by the Environmental Information Regulations 2004 (the EIR).
  5. Records management is important for many other reasons. Records and information are the lifeblood of any organisation. They are the basis on which decisions are made, services provided and policies developed and communicated. Effective management of records and other information brings the following additional benefits:
    • It supports an authority’s business and discharge of its functions, promotes business efficiency and underpins service delivery by ensuring that authoritative information about past activities can be retrieved, used and relied upon in current business;
    • It supports compliance with other legislation which requires records and information to be kept, controlled and accessible, such as the Data Protection Act 1998, employment legislation and health and safety legislation;
    • It improves accountability, enabling compliance with legislation and other rules and requirements to be demonstrated to those with a right to audit or otherwise investigate the organisation and its actions;
    • It enables protection of the rights and interests of an authority, its staff and its stakeholders;
    • It increases efficiency and cost-effectiveness by ensuring that records are disposed of when no longer needed. This enables more effective use of resources, for example space within buildings and information systems, and saves staff time searching for information that may not be there;
    • It provides institutional memory.
  6. Poor records and information management create risks for the authority, such as:
    • Poor decisions based on inaccurate or incomplete information;
    • Inconsistent or poor levels of service;
    • Financial or legal loss if information required as evidence is not available or cannot be relied upon;
    • Non-compliance with statutory or other regulatory requirements, or with standards that apply to the sector to which it belongs;
    • Failure to handle confidential information with an appropriate level of security and the possibility of unauthorised access or disposal taking place;
    • Failure to protect information that is vital to the continued functioning of the organisation, leading to inadequate business continuity planning;
    • Unnecessary costs caused by storing records and other information for longer than they are needed;
    • Staff time wasted searching for records;
    • Staff time wasted considering issues that have previously been addressed and resolved;
    • Loss of reputation as a result of all of the above, with damaging effects on public trust.
  7. The Code is a supplement to the provisions in the Act and its adoption will help authorities comply with their duties under the Act. Consequently, all relevant authorities are strongly encouraged to pay heed to the guidance in the Code. The Code is complemented by the Code of Practice under section 45 of the Act and the Code of Practice under Regulation 16 of the EIR.
  8. Authorities should note that if they fail to comply with the Code, they may also fail to comply with legislation relating to the creation, management, disposal, use and re-use of records and information, for example the Public Records Act 1958, the Data Protection Act 1998, and the Re-use of Public Sector Information Regulations 2005, and they may consequently be in breach of their statutory obligations.
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    Role of the Information Commissioner

  9. The Information Commissioner has a duty under section 47 of the Act to promote the following of good practice by public authorities and in particular to promote observance of the requirements of the Act and the provisions of this Code of Practice. In order to carry out that duty specifically in relation to the Code, the Act confers a number of powers on the Commissioner.
    10. Practice recommendations
  10. If it appears to the Information Commissioner that the practice of an authority in relation to the exercise of its functions under the Act does not conform to that set out in the Code, the Commissioner may issue a practice recommendation under section 48 of the Act. A practice recommendation will be in writing and will specify the provisions of the Code that have not been met and the steps that should, in the Commissioner’s opinion, be taken to promote conformity with the Code. A practice recommendation cannot be directly enforced by the Information Commissioner. However, a failure to comply with a practice recommendation may lead to a failure to comply with the Act or could lead to an adverse comment in a report to Parliament by the Information Commissioner.
    11. Information Notices
  11. If the Information Commissioner reasonably requires any information in order to determine whether the practice of an authority conforms with that recommended in the Code, he may serve on the authority a notice (known as an ‘information notice’) under section 51 of the Act. An information notice will be in writing and will require the authority to provide the Information Commissioner with specified information relating to conformity with the Code. It will also contain particulars of the rights of appeal conferred by section 57 of the Act.
    12. Enforcement of information notices
  12. Under section 54 of the Act, if an authority fails to comply with an information notice, the Information Commissioner may certify in writing to the court that the authority has failed to comply. The court may then inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of the authority, and after hearing any statement that may be offered in defence, deal with the authority as if it had committed a contempt of court.
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    Authorities subject to the Public Records Acts

  13. The Code should be read in the context of existing legislation affecting the management of records. In particular, the Public Records Act 1958 (as amended) gives duties to bodies subject to that Act in respect of the records they create or hold. It also requires the Chief Executive of The National Archives 5 to supervise the discharge of those duties.
  14. The Public Records Act (Northern Ireland) 1923 sets out the duties of public record bodies in Northern Ireland in respect of the records they create and requires that records should be transferred to, and preserved by, the Public Record Office of Northern Ireland.
  15. The Information Commissioner will promote the observance of the Code in consultation with the Chief Executive of The National Archives when dealing with bodies which are subject to the Public Records Act 1958 and with the Deputy Keeper of the Records of Northern Ireland for bodies subject to the Public Records Act (Northern Ireland) 1923. Before issuing a practice recommendation under section 48 of the Act to a body subject to either of the Public Records Acts, the Information Commissioner will consult the Chief Executive of The National Archives or the Deputy Keeper of the Records of Northern Ireland as appropriate.

    16. 5    The title ‘Keeper of Public Records’ is used in the Public Records Act 1958 and the Freedom of Information Act 2000. This is one of the titles of the Chief Executive of The National Archives. The title ‘Chief Executive of The National Archives’ is used in this Code in recognition of the fact that it is the title used for operational purposes.
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    Role of the Lord Chancellor’s Advisory Council on National Records and Archives and the Sensitivity Review Group in Northern Ireland

  16. The Advisory Council on National Records and Archives 6 (hereafter ‘the Advisory Council’) has a statutory role to advise the Lord Chancellor on matters concerning public records in general and on the application of the Act to information in public records that are historical records. 7 The Lord Chancellor, having received the advice of his Advisory Council, may prepare and issue guidance. The guidance may include advice on the review of public records and on the periods of time for which the Advisory Council considers it appropriate to withhold categories of sensitive records after they have become historical records. 8
  17. The National Archives provides support as appropriate to the Advisory Council in its consideration of applications from authorities relating to retention or access to public records and in its preparation of guidance for the Lord Chancellor to issue to authorities.
  18. In Northern Ireland the Sensitivity Review Group, consisting of representatives of Northern Ireland departments, provides advice on the release of public records. The Public Record Office of Northern Ireland provides support to the Group. Guidance may be issued by the Deputy Keeper of the Records of Northern Ireland following consultation with the Departments responsible for the records affected by the guidance.
    19. 6    The legal entity to which this provision applies is the Advisory Council on Public Records. Since April 2003 the Council has functioned as The Advisory Council on National Records and Archives and so that name is used in this Code.
    7    In this context, the term ‘public records’ applies only to the records of bodies that are subject to the Public Records Act 1958.
    8    The term ‘historical record’ is defined at section 62 of the Act.
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