And the
Freedom of Information
(Scotland) Act 2002
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List of Contents
The Act
Transfer of records
Access to records held in public archives
Answering Enquiries or Research
Handling Requests for Access to Information in Legacy Data
Personal Data
Other Data
The Interaction between Freedom of Information and Data Protection
Fragile Material
Catalogued and Uncatalogued Collections
Intellectual Property Rights
Electronic Records
Appendix A – List of Scottish Archives Organisations (To Do)
Appendix B - Criteria for Evaluation Public Archives
Appendix C - Examples of Enquiries (To insert)
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The Scottish Council on Archives wishes to provide support for the
objectives of the Freedom of Information (Scotland) Act, 2002, and sets
out this guidance as to how public archives should fulfil their obligations
under the Act to provide access to information held within their archives.
Archivists in Scotland play a valuable role in ensuring that the records of
our public authorities are effectively managed and preserved for present
and future users. These records provide the evidence of past actions and
decisions, by which public authorities can be held accountable. They are
essential to the democratic and legal rights of the citizen
Many of our public authorities have made provision for the professional
management of their archives, ensuring that the appropriate records are
selected, maintained, preserved and accessible to the public. The Scottish
Council on Archives believes that public archives which meet certain
professional criteria should be able to claim exemption under Clause 25
of the Act (Information otherwise accessible). We hope that these
guidelines may contribute to the current dialogue between the Office of
the Scottish Information Commissioner and Scottish Public Archives over
this issue and other working practices under the Act.
The Scottish Council on Archives intends to develop the guidelines in the
light of practical experience and in response to discussions with Scottish
Information Commissioner. In the meantime we hope that these
guidelines will provide a framework of the issues which need to be
addressed by archivists and will enable them to be better prepared to meet
the requirements of the Freedom of Information (Scotland) Act, 2002.
Dr Irene E O’Brien
August 2004
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These generic guidelines are aimed at archivists who provide archive services
in Scottish public authorities. They may provide the basis for more localised
guidance produced by individual services for the benefit of their front-line
staff. It is recognised that there is great variety in both the range and level of
development of such services, and also that general guidance on the
interpretation of the Freedom of Information (Scotland) Act 2002 (The Act)
and its associated Codes of Practice is still evolving.
It is also intended that these guidelines shall contribute to the current dialogue
between the Office of the Scottish Information Commissioner (OSIC) and
Scottish public authority archives services in general concerning working
practices under the Act. In particular the guidelines include criteria for
evaluating a public authority archives service which we hope will enable those
archives which meet these criteria to claim exemption under clause 25 of the
Act (Information otherwise accessible). This may result in an agreed Code of
Practice. However, until such a position has been reached, archivists should
be prepared to seek further guidance and legal advice from their own
institutions and the OSIC, to ensure that any local implementation based on
the following recommendations complies with relevant legislation..
The Act
The Freedom of Information (Scotland) Act (The Act) was passed by the
Scottish Parliament on 24 April 2002. It enables any person to obtain
information from Scottish public authorities. This is a legal right which will
be in force from 1 January 2005 and will include all types of ‘recorded’
information of any date held by those authorities
The Act enables any person requesting information held by a Scottish public
authority to receive it (subject to certain conditions) within a period of 20
working days. It applies to all Scottish public authorities including the
Scottish Executive and its agencies; Scottish Parliament; Local Authorities;
NHS Scotland; Universities and Further Education Colleges; and the Police. .
The Act also places an obligation on all Scottish public authorities to adopt
and maintain a ‘publication scheme’. The scheme sets out the categories of
information the authority publishes, the manner in which it is published, and
details of any charges.
There are a number of categories of exemptions as defined in Part 2 sections
25 to 41 of the Act and in other legislation. An applicant who is dissatisfied
with a refusal may ask for the decision to be reviewed.
These guidelines are intended to be used in conjunction with the Act, its
supporting Codes of Practices and Guidance published by the Office of the
Scottish Information Commissioner.
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It is the responsibility of archivists to familiarise themselves with the Act and
other relevant documentation. These are available at the Scottish Information
Commssioner’s web sit XXXXXXXXX
Archives are the records (in whatever format) accumulated by an individual or
organisation in the course of the conduct of business. These are records which
are no longer required for current use and which have been selected for
permanent preservation.
Archives are unique and irreplaceable and may range in date from the 12th to
the 21st centuries. Where their condition is very fragile, access may need to be
restricted for preservation reasons, that is, on the grounds that their physical
condition would lead to damage or loss if they were produced or copied.
In addition to the archives of their own organisations, many public archives
collect archives from a variety of external sources. These may be the records
of another public body or private records, including those of families, estates,
businesses, churches, or individuals. As a general rule archives received by an
archives repository can fall into any of three categories:
Transfers from within the organisation;
Gifts, legacies or purchases, the common factor being that ownership
of the archives passes to the archives repository;
Deposits from external sources, whereby custody passes to the archives
repository, but ownership remains with the depositor.
Where the ownership of archives of private bodies remains with the depositor,
these archives are not covered by the terms of the Act (See Clause )
Transfer of Records
Archivists often manage the collections of many different organisations and
individuals within their repository, and the nature of the agreement made with
the depositor or donor will determine the role of the archivist in relation to
each collection. All Public Archives should review their current practices in
respect of the acquisition of archives, to enable them to deal with the demands
of the Act.
They should draw up formal agreements with all those who transfer records to
them; including internal departments; external public bodies and private
individuals and organisations. The deposit agreement should cover:
the timing and frequency of the transfer of records
whether the public archives holds the records in its own right or on behalf of
the transferring [authority] under the terms of the Act;
preservation responsibilities;
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return/disposal of records no longer required by the public archive;
public access arrangements;
copyright and intellectual rights;
data protection;
any other access and use conditions.
Transfer from Departments within the same Public Authority
The internal transfer of records of a public authority to its own archives
service, i.e. from the records creators to records custodians is covered by Part
3 of the “Code of Practice on Records Management” produced under section
61 of the Freedom of Information (Scotland) Act 2002.
The transferring department should designate both open and restricted material
clearly at point of physical transfer, as part of their responsibility to review
records for transfer under section 17.2 of the Code. The archives may refuse
to accept records which have not been thus reviewed.
The Code states that the transferring department, (the records creators) would
have to deal with access requests under the Act, (unless a section 25,
“reasonably obtainable” exemption applies, - see section 5 below). These
guidelines recommend that the archives and not the department would deal
directly with access requests under the Act, unless restrictions imposed by the
transferring department apply.
Where the transferring department has imposed restrictions, access requests
should be referred to the department as soon as possible, and the time within
which they must comply with the request will start from the day on which it
was received in the archives.
Transfer from external public body.
The transfer of records of another public authority to a Pblic Achives is also
covered by Part 3 of the “Code of Practice on Records Management” produced
under section 61 of the Freedom of Information (Scotland) Act 2002. Many of
the same guidelines apply.
The transferring authority should designate both open and restricted material
clearly at point of physical transfer, as part of their responsibility to review
records for transfer under section 17.2 of the Code. The archives may refuse
to accept records which have not been thus reviewed.
The Code states that the transferring authority, (the records creators) would
have to deal with access requests under the Act, (unless a section 25,
“reasonably obtainable” exemption applies, - see section 4 below). As in the
case of internal transfers, it may be more appropriate for the Public Archives
and not the transferring authority to deal with with access requests under the
Act, unless restrictions imposed by the transferring authority apply. This
should be the subject of agreement and may involve some payment of
associated costs by the transferring authority.
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Where the transferring authority has imposed restrictions, the archives should
inform the applicant that they are unable to provide the information sought,
explain why, and direct the applicant to the transferring authority.
Private Records
The records of private bodies, organisations, or individuals, which have been
gifted or donated to the Archives (rather than deposited on loan) by third
parties are subject to the provisions of the Act. Deposited material, - that is
archives owned by and held on behalf of a third party, is not subject to FOI
legislation, although the Environmental Information (Scotland) Regulations
2004, (currently in draft), refer to all information “held”, irrespective of
Private records are a vital part of our written heritage and archivists need to act
in the best interests of donors and depositors who are willing to place their
collections in a public archives. Wherever possible, archives services should
encourage prospective donors not to restrict access to gifted material.
However, some donations may be made on condition that restrictions on
access are agreed. In such cases the archive service should ensure that any
confidentiality agreements made conform to section 36 of the Act (exemptions
on grounds of confidentiality), and should be able to demonstrate that
restrictions have been agreed as a condition of accepting the gift. Similarly
public archives may continue to accept private deposits where they are unable
to arrange for a donation.
Irrespective of whether archives are gifted or deposited, where restrictions
apply they should be specified within publicly available catalogues as soon as
relevant collections become available for public consultation.
Access to records held in public archives
Many public authorities have made provision for the professional management
of their archives, ensuring that the appropriate records are selected,
maintained, preserved and accessible. These public archives are strongly
committed to openness and customer service, - making the information
contained in their archives as accessible as possible. They already receive
many “remote” enquiries by letter, fax, email or via their websites and operate
public search rooms where enquirers can come and view the archives something which has always been regarded as a cornerstone of the facilities
offered and a major justification for retaining archives.
Section 25 of the Act exempts information which the applicant can reasonably
obtain able other than by requesting it under the Act. Paragraph 16.2 of the
Code describes the conditions which may allow the information in an archives
to be designated as reasonably obtainable’. The Code requires the following:
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the public archive makes the information in the records of the Scottish
public authorities available to members of the public on request,
whether free of charge or on payment;
that information is made available in accordance with the authority’s
publication scheme (under section 23 of the Act); and
any payment required is specified in, or is determined in accordance
with, the publication scheme
To assist in the evaluation of whether a public archives service does indeed
provide reasonable public access to information, criteria for judging access
provision are attached (Appendix B). These criteria are drawn from
professionally recognised standards1 and will form part of the ongoing
discussion with OSIC. In the meantime archive services should exercise
caution as claiming a section 25 exemption will need to be assessed on a case
by case basis.
Answering Enquiries or Research
The Act is a tool to ensure the public have access to information about the
actions and decisions taken by public authorities. The records held in public
archives provide the evidence by which public authorities can be held
accountable and all such enquiries should be treated accordingly. The Act is
not, however, a means to enable the public to have research done for them at
public expense. In such cases standard normal professional practices should be
In general public archives should try to answer specific requests such as
“When did Midwifery first appear in the medical curriculum at Edinburgh
University?”. Or ‘’ Which architect designed the Glasgow School of Art?” At
the same time, public archive services are not normally resourced to carry out
detailed research, for example, - the production of a complete dossier of
information on the development of the medical curriculum at The University
of Glasgow, 1750-1950.2 In such circumstances their responsibilities are to
manage archival holdings to promote ready public access to the information
held therein. This may be achieved by;
providing advice to research users about relevant archives and the
likelihood of their containing the information sought;
advising on how to research the archives using finding aids and public
search/reading room facilities;
where appropriate, suggesting that the enquirer or someone acting for
them visits the archive service to carry out the necessary research;
where an enquirer is unable or unwilling to visit or send a
representative to the archives; the archivist may suggest that they
employ an independent researcher to carry out the research on their
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the archives may themselves offer a value added research service, such
as carrying out extensive family history or local history research.
Details of such services, including enquiry forms for completion by
remote users and any relevant charges should be clearly identified and
be referred to in institutional publication schemes.
Where enquiries fall into the scope of Freedom of Information, the public
archives need to ensure they comply with the Act, including the 20 working
day timescale and fee structures. The following are examples of possible
FOI enquiries:
Do the original terms of the trust which financed a Community Hall
allow the public authority to sell the building to a private club?
What were the regulations which governed children boarded-out from
Glasgow to Inverness in the 1960s.
Further possible examples of FOI enquiries are in Appendix C
Whereas the options outlined under 6.2.1 – 6.2.5 may be sufficient for
‘historical’ enquiries, they may not necessarily qualify as information
“reasonably obtainable” for all FOI enquiries. This will need to be assessed
on a case by case basis. It will also depend on such variables as the nature of
the individual request, and on occasion the personal circumstances (for
instance their place of residence) of the person requesting information. Where
an individual cannot visit the archives or access the material at a reasonable
cost under the rules and regulations, the authority may not be able to claim
In responding to FOI enquiries, public archives should qualify information
supplied where appropriate, - for example, in those cases where the
inconsistent practices of records creators’ filing schemes may render it
impossible to be certain that all information has been discovered, or where the
archive service cannot be certain whether relevant records have been
destroyed. And where the archive service supplies information in redacted
form, (copies supplied in a manner that omits or blanks out irrelevant or
restricted information) it should retain a copy of what was supplied to the
enquirer for its own records.
Handling Requests for Access to Information in Legacy Data
Enquiries will be received for access to data already held by a public archive
service prior to enforcement of the FOI (Scotland) Act 2002, containing
material. which falls into within one or more of the categories of exempt
information as defined in Part 2 sections 25 to 41 or by other legislation that
prevents disclosure. Archivists need to be familiar with the operation of the
exemption clauses and in any cases of doubt, refer the matter to their legal
department. In these cases the archive service should indicate why the
information is not being made available.
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There are two different ways of classifying the exemptions: Class-based
exemptions vs. content-based exemptions; and absolute exemptions vs.
exemption subject to the public interest test.
Class-based exemptions are “blanket exemptions”; everything that meets the
description of the exemption is exempt. For example information the release
of which is prohibited by some other piece of legislation (section 26).
However only some of the class-based exemptions are absolute. For those
which are not the public authority is required to apply the public interest test
(see below) before deciding whether or not to release the information.
Content-based exemptions are applied on a case by case basis. The
information will only be exempt if disclosure would, or would be likely to,
cause “substantial prejudice” to the matter in question. In other words there is
a presumption that the information will be released. Examples of contentbased exemptions are those for research in progress (section 27(2)) and for
prejudice to effective conduct of public affairs (section 30). Even where the
public authority concludes that information is subject to a content-based
exemption it still has to apply the public interest test.
Absolute exemptions are not subject to the public interest test (see below), and
only apply to class based rather than content based exemptions. Apart from
section 25 of the Act, - reasonably obtainable information, mentioned above,
the two absolute exemptions liable to be most relevant to public archives
services are confidentiality, section 36(2) and personal information, section
The public interest test is in section 2(1) of the Freedom of Information
(Scotland) Act 2002. Where the public authority has concluded that the
information requested is subject to a content-based exemption or a class-based
exemption which is not an absolute exemption it must still provide the
information requested unless “in all the circumstances of the case, the public
interest in disclosing the information is not outweighed by that in maintaining
the exemption”. In other words unless it is in the public interest to withhold
the information it has to be released. The effect of the public interest test is to
turn what might initially appear to be a broad and substantial list of
exemptions into a very narrowly drawn set.
Handling Requests for Access to Information in Legacy Data
The records may containing for example a mixture of personal and open
information within a bound volume of minutes. Requests for access to
restricted personal data held in such legacy data should be handled in
conformity with the “Code of Practice for Archivists and Records Managers
under section 51(4) of the Data Protection Act 1998,” as submitted to the
Information Commissioner. This may require further consultation with the
enquirer to determine the exact nature of their enquiry. Methods of access
should be appropriate to the specific circumstances of the enquiry. In some
cases, redacted transcripts of originals, - copies supplied in a manner that
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omits or blanks out irrelevant or restricted information may be utilised. In
some cases this method is liable to be very resource intensive and may incur
charges as specified by the archive service’s or authority’s published charges.
In other cases, for example, bona fide academic research, the archive service
may make use of the form referred to in the above code of practice, “researcher undertaking concerning access to material that would otherwise be
Other data types
Other types of restricted information held in legacy data, for example,
confidential information, may also require further consultation with the
enquirer and may also require redacted transcripts or summaries of the
information requested to be produced instead of the original record.
The Interaction between Freedom of Information and Data Protection
The interaction between Freedom of Information and Data Protection will be
subject to further guidance from the OSIC and the Information Commissioner.
Archive services should be aware that either or both Acts may apply, and
should review existing agreements and working practices for internal transfers,
and gifted and deposited material, briefing staff accordingly.
If the person requesting the information is the data subject or is acting with the
consent of the data subject then the request is handled under the Data
Protection Act. If the person making a request for the personal data of a living
individual is a third party, the request would have to be considered in terms of
the section 38 exemption in the Freedom of Information (Scotland) Act 2002.
Recent case law has effectively narrowed the definition of personal data and
public archive services should be aware that some non-personal information,
for example, names of meeting attendees appearing in minutes of official
business will be subject to freedom of information rather than data protection.
Dependent on local circumstances, and in order that it can set a deadline for
determining the relevant legislation, the archive service may advise the
enquirer to pursue the enquiry under section one of the FOI (Scotland) Act
2002 .
Fragile Materials
The FOI (Scotland) Act 2002 is concerned with disclosure of information held
within all types of recording media held by archive services, including bound
volumes, files, plans, photographs and electronic storage devices. However, where
the act of accessing, producing or copying information would result in damage to
original unique items the archive service may refuse to provide the information.3
Where feasible, transcriptions or surrogates may be provided at advertised rates.
Archive services should refer to fragile access or other relevant policies in their
publication schemes.
Catalogued and Uncatalogued Collections
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In certain circumstances, archival holdings managed by a public archives may
qualify for exempt status if they are “reasonably obtainable” under section 25
of the Act, - (see section 5 above, dealing with public access to archives). It is
clear that the archives must be catalogued if section 25 is to be applied. The
term “catalogued” is defined as intellectual access to a collection where
security arrangements and finding aids permit useful interaction by enquirers.
Access to uncatalogued material is subject to section 1 of the FOI (Scotland)
Act 2002, and archive services should seek to identify the information
required through effective communication with the enquirer including
providing information on any applicable charges.
Intellectual Property Rights
Users of archive services should be made aware that access given to
information under Freedom of Information legislation does not also confer
rights to intellectual property, particularly in relation to copyright, and that
subsequent use of such material without permission is prohibited.
Electronic Records
The FOI (Scotland) Act 2002 covers all records in all formats. It thus includes
all archival status electronically held records meriting permanent preservation.
However very few public archives in Scotland have access to a formally
designated digital archive facility under their specific control. If there is a
requirement to accession electronically held archival status records, the
archive service should refer the records creators or owners to freely available
advice on the long term preservation of electronic records.4
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HMC Standards for Records Repositories
1 See Model Publication /Scheme for Scottish higher Education Institutions produced by Universities
Scotland approved by Scottish Information Commissioner, 25 th March 2004, (footnote on page 36)
See “Holyrood Mag” March 2004 edition, in which the Scottish Information Commissioner gives as
his opinion that some information will be quite legitimately made available only if people attend in
person to inspect it, and that some fragile historic documents cannot be copied or made available in any
other way. Public archive services are however advised to exercise caution in utilising this reason to
limit access since it has no formal legal basis and to support any decision with an expert report from a
qualified conservator.
See for example Digital Preservation at Edinburgh University Library at which also contains various links to other useful sites
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Criteria for evaluating a public archive service
The following will automatically be designated a public archive service for Freedom
of Information purposes:
A record repository that meets the following minimum criteria as judged by the
Keeper of the Records of Scotland or his designated representative. The criteria
are based on the HMC Standard for Record Repositories.
For the purposes of this document a record repository means a record office or other
institution holding records which are open to public inspection.
1. Constitution and finance
The archive service should have a written source of authority from their
governing body
2. Staff
The staffing levels should normally be appropriate:
- to the size of the parent organisation (compared to similar organisations)
- to ensuring the safety of the quantity of archives in custody and use
- to ensuring the preservation and conservation of the archives
- to cover staff absences while maintaining the availability of the archives
The employment of full time professional archivist (s)
Qualified professionals will normally be registered or accredited members of
one or more of the following professional bodies or currently be undergoing
- the Society of Archivists
- the Records Management Society
- Conservation Register
Evidence should be available that all staff routinely handling archives have
been trained in protecting them from handling damage.
Staff routinely moving archives should have been given appropriate guidance
in manual handling risk assessment and manual handling techniques.
3. Acquisition
The service will have a defined statement of collection policy indicating the
subject areas within which records are sought and acquired, any geographical
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restrictions affecting the scope of material collected, and the various media for
which appropriate storage and access facilities are provided
A copy of the statement of collection policy should be lodged with the Historic
Manuscripts Commission
An Accession Register should be kept and be available for inspection by the
Keeper of the Records of Scotland or his designated representative.
4. Access
A designated study area should be available and should be
- under constant invigilation for security purposes
- suitable for the levels of use
- suitable for the types of archives in use
- safe for public use
Regulations and conditions for access should be appropriately publicised
- opening hours
- conditions of entry
- any necessary and legally enforceable restrictions on access
- provisions for protecting the archives from harm while in use
- a list of available services and any charges that may be applicable (eg
searchroom, copying, photography)
Measures should be in place to assist users to find the archives they require
during publicised opening hours. This will normally be by the provision of
finding aids in paper or electronic form and the availability of a staff member
with a sound knowledge of the available archives.
In providing copies to the public staff should show awareness of current
Copyright Law. Particularly they should have made provision for protecting
the copyright or other intellectual property rights contained within the archive
collections in their custody. A copyright declaration form normally forms part
of the copy ordering process within an archive service.
5. Storage and preservation
Staff will show an awareness of the ideal conditions for the storage of archives
in all media and in particular of the British Standard and provide evidence of
how they have made the best of their available resources for storage and
A strategy for the long term improvement of the storage and preservation of
the archives should be in place.
Access to archival storage areas will be restricted to archival staff and other
authorised persons accompanied by them.
The searchroom must be constantly invigilated when the public are present.
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Smoke detectors, with automatic fire alarms connected to the fire station or
security agency will be fitted in the storage areas.
Smoking must be strictly prohibited in archive buildings except for areas
specially designated and equipped for the purpose.
Storage areas should be safe for staff to enter and work in.
An up-to-date disaster plan should be accessible to all archive staff.
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