SCA
SCOTTISH COUNCIL ON ARCHIVES
ARCHIVES
And the
Freedom of Information
(Scotland) Act 2002
FOREWORD
The Scottish Council on Archives welcomes and supports the
introduction of the Freedom of Information (Scotland) Act 2002.
Archives 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.
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. 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.
Part 1 sets out guidance as to how public archives services should
fulfil their obligations under the Act to provide access to information
held within their archives. Part 2 lists the professional criteria which
may allow public archives services to claim exemption under section
25 of the Act (Information otherwise accessible).
A separate document has been drawn up to promote an
understanding of the nature of archives and public archives services
within the Office of the Scottish Information Commissioner (OSIC).
The Scottish Council on Archives intends to develop the guidelines in
the light of practical experience. In the meantime we hope that they
will provide a framework of the issues which need to be addressed by
archivists and enable them to be better prepared to meet the
requirements of the Freedom of Information (Scotland) Act 2002.
Dr Irene E O’Brien
Chairman
November 2004
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PART 1: GUIDELINES FOR ARCHIVISTS
1
The Act
1.1
The Freedom of Information (Scotland) Act 2002 (The Act) was passed by the
Scottish Parliament on 24 April 2002. Section 1 provides a general right of
access to information held by 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
1.2
The Act entitles 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. .
1.3
The Act also places an obligation on all Scottish public authorities to adopt and
maintain a ‘publication scheme’ and to publish information in accordance with
that scheme. The scheme sets out the categories of information the authority
publishes, the manner in which it is published, and details of any charges.
1.4
There are a number of categories of exempt information (i.e. it would not have to
be provided in response to an individual request) - these are defined in Part 2
sections 25 to 41 of the Act. An applicant who is dissatisfied with a refusal may
ask for the decision to be reviewed by the authority. If the applicant is dissatisfied
with the outcome of the review, or the authority’s failure to carry out a review,
he/she may appeal to the Scottish Information Commissioner.
1.5
These guidelines are intended to be used in conjunction with the Act, its
supporting Codes of Practice and Guidance published by the Office of the
Scottish Information Commissioner.
1.6
It is the responsibility of archivists to familiarise themselves with the Act and
other relevant documentation. These are available at the Scottish Information
Commissioner’s web site http://www.itspublicknowledge.info/ or the Scottish
Executive’s website: http://www.scotland.gov.uk/Topics/Government/FOI.
2
The Records
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 3 categories.
2.3.1
Transfers from within the organisation;
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2.3.2
Gifts, legacies or purchases, the common factor being that ownership of
the archives passes to the archives repository;
2.3.3
Deposits from external sources, whereby custody passes to the archives
repository, but ownership remains with the depositor.
1.4
Where the ownership of archives of private bodies or individuals remains with the
depositor, these archives are not covered by the terms of The Act (See sections 1
(1): General entitlement; and 3(2): Scottish public authorities, information held by
an authority).
3
Transfer of Records
3.1
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.
3.2
The archivists 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;
security;
return/disposal of records which do not meet the requirement of the archivist’s
selection/appraisal policy;
public access arrangements;
copyright and intellectual rights;
data protection;
any other access and use conditions.
Transfer from Departments within the same Public Authority
3.3
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.
3.4
Paragraph 17.2 of the Code says that the transferring department should review
records before physical transfer to identify:

records which should be made publicly accessible because no exemptions apply,
and
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
records which should not be made publicly accessible because they contain
exempt information.
Where the review identifies records which should be accessible to members of the
public, the transferring authority should ensure that those records are covered by
the authority’s publication scheme
The archives may refuse to accept records which have not been thus
reviewed.
3.5
The Code states that the transferring department, (the records creators) would
have to deal with requests under the Act for access to exempt information held in
a public archive, (unless it is only the section 25, “reasonably obtainable”
exemption applies, - see section 4 below). In such cases, access requests should
be forwarded to the department as soon as possible, as the time within which they
must comply with the request will start from the day on which it was received in
the archives. However, see note 8.2 re enquiries from legacy data.
Transfer from external public body.
3.6
The transfer of records of another public authority to a Public Archives 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.
3.7
Paragraph 17.2 of the Code says that the transferring authority should review
records before physical transfer to identify:
records which should be made publicly accessible because no exemptions apply,
and
records which should not be made publicly accessible because they contain
exempt information.


As in 3.4, where the review identifies records which should be accessible to
members of the public, the transferring authority should ensure that those records
are covered by the authority’s publication scheme
The archives may refuse to accept records which have not been thus reviewed.
3.8
The Code states that the transferring authority, (the records creators) would have
to deal with requests under the Act for access to exempt information held in a
public archive, (unless it is only the section 25, “reasonably obtainable”
exemption applies, - see section 4.2 below). In such cases, 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. This is in line
with procedures laid down under the Code for the National Archives of Scotland.
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Private Records
3.9
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), will apply to all environmental information “held”, irrespective of
ownership.
3.10
Private records are a vital part of our written heritage and archivists need to
negotiate with 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.
3.11
Where donations are made on condition that access restrictions are in place, 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. Ideally such restrictions should be based on FOI exemptions.
3.12
Similarly public archives service may continue to accept private deposits on loan
where they are unable to arrange for a donation. Again, wherever possible,
archives services should encourage depositors not to restrict access to loaned
material .
3.13
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.
4
Access to records held in public archives services
4.1
Many public archives services already deal with “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 archives facilities.
4.2
Section 25 of the Act exempts information which the applicant can reasonably
obtain other than by requesting it under the Act. Paragraph 16.2 of the Code
describes the conditions, which may allow the information in records held in an
archives, to be regarded as ‘reasonably obtainable’ as follows:
4.2.1
the public archives service makes the information in those records
available to members of the public on request, whether free of charge or
on payment;
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4.2.2
that information is made available in accordance with the authority’s
publication scheme (under section 23 of the Act); and
4.2.3
any payment required is specified in, or is determined in accordance with,
the publication scheme
4.3
Archive services will be assessed in relation to their success in meeting the
request for information from applicants rather than some absolute form or
standard of service. However, to help archives services improve their services
provision, and also to provide some objective benchmarks, criteria for judging
access provision are attached (Part 2). These criteria may be used in the event of
a complaint by an applicant to the Scottish Information Commissioner.
5
Catalogued and Uncatalogued Collections
5.1
In order to claim exemption under section 25 of the Act; - (see section 4 above,
dealing with public access to archives, the holdings or collections of the archives
must be catalogued to a level which allows them to be accessible by the applicant.
A collection is held to be “catalogued” where security arrangements and the
finding aids (catalogue, index, etc) permit the user to identify and get access to
specific materials. Box-listing may be sufficient to allow reasonable access.
Where a collection is not catalogued, it may not be possible to claim an
exemption and archive services should seek to identify the information required
through effective communication with the enquirer.
6
Fragile Materials
6.1
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. The Act
requires the authority to provide the information by the means preferred by the
applicant ‘so far as is reasonably practicable’, including by providing a copy or
allowing inspection of the record. 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 by the means requested.
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.
7
Answering Enquiries or Research
7.1
The Act is a tool to ensure the public have access to information held by public
authorities. The records held in public archives provide information on the
actions and decisions taken by public authorities and the evidence by which
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public authorities can be held accountable and all such enquiries should be treated
accordingly.
7.2
In general public archives should try to answer specific requests about their
holdings. For instance Edinburgh University Archives should respond to an
applicant who wishes to know ‘When did Midwifery first appeared in the medical
curriculum at Edinburgh University?’ And where the relevant archives are held
elsewhere, the public service archives should refer the applicant to the relevant
authority (Section 15 - Duty to provide advice and assistance).
7.3
At the same time, it is not the responsibility of public archive services 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. In such circumstances their responsibilities are to manage
archival holdings and to ensure that the information held therein is reasonably
accessible. This may be achieved by:
7.4
7.3.1
providing advice to research users about relevant archives and the
likelihood of their containing the information sought;
7.3.2
discussing the research user’s aims in order to narrow down their request
to a specific question which the archive service can readily answer;
7.3.3
advising on how to research the archives using finding aids (both on-site
and on Internet) and public search/reading room facilities;
7.3.4
providing photocopies or other images of specific documents from the
archives to allow people to carry out their own research away from the
archives provided that the cost of this service is covered in the authority’s
publication scheme.
7.3.5
where appropriate, suggesting that the enquirer or someone acting for
them visits the archive service to carry out the necessary research;
7.3.6
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 behalf.
7.3.7
The archives may 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 an
authority’s publication scheme.
Although offering these options should allow a public archives service to claim an
exemption under Section 25, they may not always do so. Variable factors, such as
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the nature of the individual request, and the personal circumstances of the person
making the request (for instance their place of residence), also need to be taken
into account. 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 exemption.
7.5
In responding to FOI requests, public archives services 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 applicant for its own records.
8
Handling Requests for Access to Exempt Information
8.1
Enquiries will be received for access to information which falls within one or
more of the categories of exempt information as defined in Part 2 sections 25 to
41. The application of the exemptions will normally be a matter for the
transferring authority/ department. In cases where the information is not being
made available the transferring authority/department should explain why in their
response to the applicant.
8.2
Archivists do need to be familiar with the operation of the exemptions as they
may be required to deal with exempt information within legacy data. However,
many of the exemptions can be applied only to information contained in records
for a certain number of years (in most cases, 30 years after the beginning of the
calendar year following that in which the record was created), after which they
fall away.
8.3
There are 17 categories of exempt information in the Act but only some of these
exemptions are absolute, i.e. apply on a blanket basis. Others are subject to the
public interest test. Authorities should favour disclosure wherever possible and
this is where the balance should lie.
8.4
If an absolute exemption applies, the authority will not have to release the
information. Apart from section 25 of the Act (information otherwise accessible)
mentioned above, the two absolute exemptions liable to be most relevant to public
archives services are confidentiality (section 36(2)) and personal information
(section 38(1)).
8.5
The records may contain a mixture of exempt and non-exempt information. For
example, restricted personal data may be included with non-restricted data within
a bound volume of minutes. Requests for access to restricted personal 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
9
the Information Commissioner. This may require further consultation with the
applicant to determine the exact nature of their enquiry.
8.6
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 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.
8.7
And although there is a requirement to treat applicants equitably, the archivist
may allow access to for a bona fide academic research project. In such cases the
archive service may make use of the form referred to in the above code of practice
(see 8.5 above) in respect of access to personal data, - “researcher undertaking
concerning access to material that would otherwise be closed”
9
The Interaction between Freedom of Information and Data Protection
9.1
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.
9.2
If the person making a request for the personal data of a living individual is a third
party, the request will fall under FOI but disclosure must not breach the DP
principles or cause the release of sensitive personal data which may lead to
damage or distress to the individual.
9.3
Recent case law has narrowed the definition of personal data. As a general rule
data now has to be substantially biographical to be subject to the provisions of the
DPA. A note of attendance at a meeting in an official capacity, or a passing
reference to a name where there is no other information about that
person is not personal data. Therefore, any information that falls
outside the scope of the DPA must be dealt with under the mechanisms in
the FoI(S)A.'
10
Intellectual Property Rights
10.1
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.
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PART 2: Criteria for evaluating a public archive service
A public archive service meeting the following criteria may be regarded as making
information reasonably obtainable for the purposes of section 25 (information otherwise
accessible) of the Freedom of Information (Scotland) Act 2002.
The criteria are based on the HMC Standard for Record Repositories and the Public
Services Quality Group Access Standard.
Definition
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

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
accreditation:
- the Society of Archivists
- the Records Management Society
- Institute of Conservators

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 Keeper of
the Records of Scotland

An Accession Register should be kept and be available for inspection
Access
General descriptions of holdings are readily accessible to potential users, both remote
and also on-site

The public archives service should provide information on access to the public
archives service in leaflets, publicity material and Internet guides.

The public archives service is conveniently located and accessible to users.

The Opening hours should meet the requirements of access and should be clearly
advertised.

The staff providing access have the appropriate skills and a sound knowledge of
the available archives.

Users are able to find specific records and items of interest in the archive: finding
aids should be created and maintained. These should conform to current archival
standards and should be suitable for automation and networking.

The archive service shall endeavour to ensure that its holdings are catalogued and
indexed to an appropriate level of detail, and where such descriptions exist, it
shall make them readily available for public consultation in a range of media.

The Archives Services may list specific collections in their publication schemes;
linking it to summary catalogues.

The public archives service provides users with choices in the means of access to
content: personal visit, remote access, using on-line access or commissioning
research.

Researchers should be accommodated appropriately when they visit the archives
service and there should be sufficient capacity in terms of seating, equipment and
production levels.

Restrictions on access to content are clearly communicated to users.
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
Users are able to obtain copies of relevant materials or are given clear reasons
where restrictions are imposed.

For on-site visits, 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
including:
- 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 (e.g. search
room, copying, photography)

Opening hours should be sufficient to meet access requirements.

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.
4. 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 preservation.

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 search room must be constantly invigilated when the public are present.

Smoke detectors, with automatic fire alarms connected to the fire station or
security agency will be fitted in the storage areas.
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
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 archives staff
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