Proposed Scottish National Archive Legislation

PROPOSED SCOTTISH NATIONAL ARCHIVE LEGISLATION

12 October 1999

CONTENTS

Introductory
Provisions of an Archive Bill
Other Matters to be Considered

A. INTRODUCTORY

1. THE CURRENT SITUATION

The National Archives of Scotland functions under the provisions of the 1937 Public Records (Scotland) Act. Other enactments, from that of 1617 setting up the Register of Sasines through to the Public Registers and Records Act 1948, are still in force. Some UK legislation, not directly applicable to Scotland, such as the Public Records Acts of 1958 and 1967, have an effect on Scottish practice, and legislation in matters other than archives, e.g. the Local Government etc. (Scotland) Act 1994, place obligations on the National Archives of Scotland. However in many areas now within the accepted range of the National Archives of Scotland's activities there is no legislation at all.

Existing legislation covering large and important collections, local authorities, health boards, universities and other public bodies is diffuse and inadequate.

Existing legislation lays great emphasis on legal and court records. Any new legislation should not seek to undermine this, or in any way to diminish the role of the Lord President of the Court of Session, but it must place due emphasis on the responsibilities that the Keeper of the Records of Scotland has assumed in the last 60 years, especially in relation to the records of central and local government, and to private records. The management of public archives of Scotland is devolved, and therefore its position with regard to the Scottish Parliament and Scottish ministers needs to be established. Its relations with local government also need to be reviewed in the light of experience of the 1994 Act and of developments in local archive services. The position of the SRAC, or of a possible Archives Council, should be considered. Finally legislation must take account of professional developments in the work of the archivist, and of technical developments in the media on which archives are held and by which they can be disseminated. As well as providing an up-to-date legal framework for the archives of Scotland in the broadest sense, new legislation should be a crystallisation of good practice.

2. SCOPE OF THIS DOCUMENT

2.1. This document is an attempt to list all the matters which should be considered for inclusion in a Scottish archives bill and is intended to serve as a draft agenda for any group discussing the framing of such a bill. The following general points might be made at the outset:

Considerations should be as wide-ranging and radical as possible, since it is not recommended to patch existing legislation, but to rewrite and extend it.
Legislation should emphasis both the management of records and access to them.
The Bill should cover all kinds of public bodies, including for example local authorities, NHS authorities, universities, etc.
There should be a clearly defined structure for archives in Scotland, both national and local, with the Keeper responsible to a minister of the Scottish parliament. The relationship of the Keeper, the National Archives of Scotland and the Scottish Archives Council to the First Minister, the Scottish Executive, the Secretary of State, the Lord President, the Lord Advocate, the Advocate General and the Registrar General for Scotland should all be considered and defined, as should the Keeper's rights and obligations with regard to other archives, in Scotland and elsewhere.
The secondary legislation which provides for various matters within the bill should be easy to amend from time to time - i.e. by negative, as opposed to affirmative, resolution.
The bill should deal with the whole life of records, from conception to ultimate disposition, by general planning and setting of frameworks and best practice guidelines, approved by the Scottish Archives Council.
There should be legal powers and duties, including both penalties and incentives.

3. PURPOSES OF AN ARCHIVE BILL

3.1. To provide for the existence, duties and powers of the National Archives of Scotland.
3.2. To provide for the existence, duties and powers of the Keeper of the Records of Scotland.
3.3. To provide for the existence, duties and powers of the Scottish Archives Council.
3.4. To place a duty on all public bodies operating within Scotland to take proper care of their records.
3.5. To place a duty on all public bodies operating within Scotland to enable access to public records.
3.6. To provide guidance for private archives where appropriate.
3.7. To provide for the exclusion from its provisions of statutory records and categories of public records held by the Registrar General for Scotland, the Keeper of the Registers of Scotland and the Lord Lyon.
3.8. To incorporate a statement of the principle of access without charge for historical, literary and other scholarly research.

4. DEFINITIONS

4.1. Use and meaning of the following terms:
Access - the availability of archives for public consultation as a result both of legal authorisation and the existence of finding aids.
Archive Repository - the building or part of a building in which archives are preserved and made available for consultation.
Archives - records permanently preserved, with or without selection, by those responsible for their creation or by their successors in function, either for their own use or by an appropriate archival institution. See also National Archives.
Confidentiality - the quality or property of privacy or secrecy attaching to certain information and/or records thereby limiting access.
Finding aid - a document, published or unpublished, listing a body of records/archives thereby establishing administrative and intellectual control over them, making them more readily accessible and comprehensible to the user.
Metadata - technical and descriptive information about data held in technology dependent form which is necessary to render that data understandable and into records
National Archives - institution responsible for the acquisition, preservation and communication of the archives of the nation, broadly defined.
Preservation - the totality of processes and operations involved in the physical protection of records/archives against damage or deterioration and in the conservation of damaged or deteriorated records.
Public body - a body discharging a public function, or whose activities are legislated for, or regulated by, or financed by the Parliament of Scotland or by other public authority in Scotland.
Public records - records created by a public body.
Record disposal schedule - a document describing the recurring records of an agency, institution or administrative unit, specifying those records to be preserved as having archival value and authorising on a continuing basis and after the lapse of specified retention periods or the occurrence of specified actions or events, the destruction of remaining records.
Records - recorded information regardless of form or medium created, received and maintained by an agency, institution, organisation or individual in pursuance of its legal obligations or in the transaction of business.
Records management - that area of general administrative management concerned with achieving economy and efficiency in the creation, maintenance, use and disposal of records, during their entire life cycle.

B PROVISIONS OF AN ARCHIVE BILL

5. THE NATIONAL ARCHIVES OF SCOTLAND

5.1. Recognition of the National Archives of Scotland and definition of its status as the institution responsible for custody and care of the parliamentary, government and legal records of Scotland and supervision of other public records, as defined, as well as the successor to previous record-keeping institutions.
5.2. Its place in the Scottish government structure.
5.3 Finance, including funding, property and estates.
5.4 Right to make and retain or subsequently disburse money, and disburse funds.
5.5. Procedure for review of records (including electronic records) and their transmission to the National Archives of Scotland and approved places of deposit.
5.6. Procedure and conditions for retransmission of records (including electronic records) to record creators.
5.7. Provision for statutory instrument defining conditions of access to public records, with reasons for refusing access, and imposing closure periods and criteria for these and for publishing and updating of information regarding these, having regard to Scottish, UK and European legislation on Freedom of Information.
5.8. Provision for statutory instrument governing fee regulations for business and value-added services and annual review of fee rates.
5.9. Status and role of the National Register of Archives (Scotland).

6. THE KEEPER OF THE RECORDS OF SCOTLAND

6.1. Definition of status, powers and responsibility, including

Position as head, chief executive and accounting officer of the National Archives of Scotland.
Terms of appointment.
Power to enlist staff.
Funding and accountability.
Reporting, including provision of published Annual Report and Accounts, and reports to the Scottish Archives Council.

6.2. Use in legislation of 'Keeper' and 'National Archives of Scotland'.
6.3. Official title.
6.4. Responsibility with or responsibility to other office holders (the First Minister, the Ministers of the Scottish Executive, the Secretary of State, the Lord President, the Lord Advocate, the Advocate General, the Registrar General for Scotland and the Scottish Archives Council).
6.5. Power to regulate and advise on record-keeping by public bodies covered by the act, with power to require them to draw up policies on acquisition and access and to review the implementation of these policies regularly.
6.6. Power to deposit records locally and to devolve responsibility for records already in National Archives of Scotland by agreement under charge and superintendence or otherwise, to designate local and other archive repositories as suitable places of deposit for such records, to draw up criteria for such accreditation, to conduct periodic inspections to monitor compliance, with procedures for termination of arrangements or onward transfer of records.
6.7. Power to impose penalties on public record creators and custodians for non-compliance with statutory obligations, including the following possibilities:

Refusal to transmit records to unsuitable repositories.
Withdrawing of approval as place of deposit.
Financial or other penalty imposed by the appropriate Scottish government department.
Denial of access to financial support.
Legal proceedings.

6.8. Power to select, appraise and dispose of records, in whatever medium, by transfer or destruction.
6.9. Power to accept private papers of national interest by gift, bequest, deposit or purchase, and to copy them prior to the granting of an export licence.
6.10. Power to recover public records and records extra commercium.
6.11. Power to mount exhibitions and produce publications
6.12. Power to lend records for exhibition, subject to the provisions of the Act of Union 1707 prohibiting the removal of public records from Scotland, and to hold records on temporary loan for the purposes of exhibitions or otherwose.
6.13. Power to administer and disburse funds for the furtherance of good record-keeping, public and private.
6.14. Obligation to preserve all records for which the Keeper is directly responsible.
6.15. Obligation to provide advice on preservation of records and archives to bodies covered by the act.
6.16. Obligation to provide access to public records and compile finding aids, with due regard to confidentiality and to Scottish, UK, and European legislation on Freedom of Information.
6.17. Obligation to supply extracts and certified copies, in appropriate form and legal status, and to supply copies for private study and research, subject to considerations of physical preservation, copyright and other relevant Scottish, UK, and European legislation.
6.18. Obligation to produce records in court, and to retransmit temporarily public records to the originating organisations, or their legal successors, for administrative purposes.
6.19. Obligation to provide reports for Officers of State and the Scottish Archives Council.
6.20. Obligation to provide a regular report to the SAC of his statutory activities.

7. THE SCOTTISH ARCHIVES COUNCIL

To advise the First Minister on archival matters.
To recommend and promote policy on the whole range of archival issues in a national context, taking into account the interests of users, archivists and creators of records, as well as providing a forum for the governing bodies of archive services.
To set standards for archive services, and to arbitrate in disputes amongst collecting bodies.

7.2 Appointment of convener and 14 members, of whom one shall be a depute convener. In considering membership, the First Minister should have regard to the interests of: archivists; creators, owners, holders and users of archives; governing bodies of archive services; related professions; and other persons with appropriate or suitable qualifications or experience, of whom no fewer than 4 shall be nominated by the professional associations of archivists in Scotland, nominations to be actively sought from relvant bodies The Keeper and Deputy Keeper or their representatives will attend meetings as observers.
7.3. Terms and conditions of appointment - three-year periods, renewable to a normal maximum of six years.
7.4. Power of the council to appoint a full-time appropriately-qualified officer to serve the Council.
7.5. Obligation of the National Archives of Scotland to provide clerical assistance, office space, services and equipment to the Council.
7.6. Responsibility to officers of state and others (Scottish Parliament, Secretary of State for Scotland and the UK Parliament, the Advocate-General, the Lord President).
7.7. Inheritance of responsibilities of the Scottish Records Advisory Council.
7.8. Power to review the statutory activities of the Keeper and to report on them to the First Minister.
7.9. Power to receive and disburse funds.
7.10. Power to arbitrate in cases (including the NAS) regarding custody of records; standards of care and any other relevant matters.
7.11. Power to negotiate with archival bodies outside Scotland and with bodies controlled by the UK Parliament.
7.12. Power to set standards of care and practice and to award recognition to archive offices which achieve these standards.
7.13. Power to appoint sub-committees or delegate tasks.

8. BODIES FOR WHOSE PUBLIC RECORDS THE KEEPER IS DIRECTLY RESPONSIBLE

8.1. Bodies previously regulated by the Public Records (Scotland) Act 1937 and excluded from the provisions of the Public Records Act 1958 under Schedule 1, para 2 (2) (a) as being of bodies which are 'wholly or mainly concerned with Scottish affairs, or which carries on its activities wholly or mainly in Scotland'.
8.2. UK bodies transferred to the custody of the Keeper under section 3 (8) of the Public Records Act 1958 - possibly superseded by provisions in the bill giving the Keeper specific powers over records created by UK bodies operating in Scotland.
8.3. Bodies exercising reserved powers delegated administratively to the Scottish parliament.
8.4. Private bodies creating records in the discharge of public functions.

9 BODIES HAVING OBLIGATIONS TO THE KEEPER IN RESPECT OF THEIR PUBLIC RECORDS

9.1. Local councils, as defined in the Local Government etc. (Scotland) Act 1994, sec. 53 (1)(4).
9.2. National Health Service organisations, including Health Boards, National Health Service Trusts, Primary Care organisations, Local Health Care Co-operatives, Local Health Councils, and such other bodies as may from time to time be set up under the overall authority of the National Health Service in Scotland, all of whose records are specified here as public records.
9.3. Universities operating in Scotland, in respect of records generated by the administrative process and forming part of the legal property of a university including prior and associated institutions.

10. OBLIGATIONS AND POWERS WITH REGARD TO THEIR RECORDS OF BODIES FOR WHOSE RECORDS THE KEEPER IS DIRECTLY RESPONSIBLE

10.1. General obligation to implement proper records management systems, as follows:

Draw up disposal schedules and review procedures for records in all media, as defined in codes of practice drawn up by the Keeper and his staff with the approval of the Scottish Archives Council.

10.2 Other obligations:

Enable reasonable public access, subject to considerations of confidentiality, security and preservation.
Transmit records to the National Archives of Scotland, or to an appropriate public archive, and to abide by the directions on record keeping of the Keeper of the Records of Scotland.
Tramsmit records, packaged and listed to a standard agreed with the Keeper of the Records of Scotland, to the National Archives of Scotland, or to a public repository approved by the Keeper of the Records of Scotland.
Abide by the directions of the Keeper of the Records of Scotland on record keeping, including electronic records.
Where records selected for permanent preservation are withheld from transmission for longer than 30 years, the originator must explain the reasons for this to the Scottish Archives Council.

To meet their obligations under the Bill by delegating any aspect of archive provision to another appropriate body, in agreement with that body and the Keeper of the Records of Scotland.

11. OBLIGATIONS AND POWERS OF LOCAL AUTHORITIES WITH REGARD TO THEIR RECORDS

11.1. General obligation on local authorities to make proper arrangements for their records, as follows:

To provide for the management of both historic and modern records.
Submit to the First Minister a scheme setting out their arrangements for the proper creation, care, preservation and management of their records, in whatever medium, within one year of the bill becoming statute.
Appoint a professionally qualified archivist(s)/records manager(s) responsible for an identifiable annual budget or, where appropriate, participate in shared arrangements with neighbouring councils to provide professional archive supervision.
Keep the scheme under review and adjust it where necessary.
Consult the Keeper before making material changes to the scheme, and have regard to any advice that he may give.
All Scottish repositories should supply their policies on collection and acquisition and their finding aids to the National Archives of Scotland.

11.2. Other obligations:

Transfer records selected for permanent preservation as archives to the archivist in charge.
Provide for public inspection of records, with due regard to confidentiality, and relevant Scottish, UK and European legislation.
Provide the Keeper access without payment to any records held by the authority (as in sec.53(5) of the Local Government etc. (Scotland) Act 1994).
Implement general directives from the Keeper in matters relating to local records or archives.
Submit documents to the Keeper, to include: an annual report, copies of finding aids, existing retention schedules, an acquisitions policy.

To provide for preparation of finding aids, for exhibitions, and for temporary loans on terms in accordance with established professional standards of care, for purchase of records and acceptance of gifts (as in sec.54 of the Local Government etc. (Scotland) Act 1994). Subject to the provisions at 11.1 and 11.2, Local Authorities (Councils) have the right to have permanently returned to them local authority records which were originally transferred to the Keeper of the Records of Scotland under the terms of the Public Records (Scotland) Act, 1937.
To recover records alienated from the possession of the local council or one of its predecessors.
To accept private and related records in line with the authority's acquisition policy.
To dispose of records in accordance with established professional principles and record disposal schedules.

12. OBLIGATIONS AND POWERS OF NATIONAL HEALTH SERVICE AUTHORITIES WITH REGARD TO THEIR RECORDS

12.1. General obligation on National Health Service Authorities to make proper arrangements for their records, as follows:

Submit to the First Minister a scheme setting out their arrangements for the proper creation, care, preservation and management of their records, within one year of the Bill becoming statute.
Appoint a professionally qualified archivist(s)/records manager(s) or, where appropriate, participate in shared arrangements with neighbouring authorities/institutions to provide professional archive supervision.
Keep the scheme under review and adjust it where necessary.
Consult the Keeper before making material changes to the scheme, and have regard to any advice that he may give.

12.2. Other obligations, as follows:

Transfer records selected for permanent preservation as archives to the archivist in charge.
Provide for public inspection of records, with due regard for confidentiality and relevant Scottish, UK and European legislation.
Provide the Keeper with access comparable to that provided to local council records under sec.53(5) of the Local Government etc (Scotland) Act 1994.
Implement general directives from the Keeper in matters relating to local records or archives.
Submit documents to the Keeper, to include: an annual report, copies of finding aids, existing retention schedules, an acquisitions policy.

To provide for preparation of finding aids, for exhibitions and for temporary loans in accordance with established professional standards of care, for purchase of records and acceptance of gifts.
To recover records alienated from the possession of the health authority or one of its predecessors.
To accept private and related records in line with the authority's acquisition policy.
To dispose of records in accordance with established professional principles and record disposal schedules.

13. OBLIGATIONS OF UNIVERSITIES WITH REGARD TO THEIR RECORDS

13.1. General obligation on universities to make proper arrangements for their records, as follows:

Assign formal responsibility for records to a designated proper officer.
Appoint a professionally qualified Archivist(s)/Records Manager(s) responsible to the University governing body for an identifiable annual budget (excluding salaries and accommodation costs).
Establish appropriate arrangements for the proper creation, care, preservation and management of their records, in whatever medium and approve acquisitions policy and conditions of access to University records, having due regard to recommendations of the Keeper of the Records of Scotland/Scottish Archives Council as part of and conceived in terms of the university's overall information strategy.
Obligation to transfer records selected for preservation as archives to the archivist in charge.

To provide for preparation of finding aids, exhibitions, temporary loans, purchase of records, acceptance of gifts.
To recover records alienated from the possession of the university or one of its predecessors.
To accept private and related records including those generated by research projects in line with the University's acquisitions policy.
To dispose of records in accordance with established professional principles.

14. PRIVATE RECORDS

14.1. Provision for publicly financed archive offices to take in records for care and custody from private record creators, e.g. churches, public service organisations, businesses, institutions or private individuals.
14.2. Publicly financed archive offices may make reasonable charges to the owners of deposited archive records to defray the costs of administering and caring for such deposits.
14.3. Obligation on owners who receive public money for the maintenance of their collections to provide access.

C OTHER MATTERS TO BE CONSIDERED

15. RELATIONSHIP OF THE KEEPER AND THE NATIONAL ARCHIVES OF SCOTLAND TO OTHER INSTITUTIONS

15.1. The Public Record Office.
15.2. The Public Record Office of Northern Ireland.
15.3. The General Register Office for Scotland.
15.4. Registers of Scotland.
15.5. The National Library of Scotland.
15.6. The Scottish Film and Television Archive.
15.7 The Archives and other institutions of the European Union.
15.8. Any future national institutions, e.g. a Scottish Sound Archive, the Welsh Record Office or any organisation holding datasets for the National Archives of Scotland.
15.9 Royal Commission on Historical Manuscripts
15.10. Resolution of particular questions regarding:

Functions reserved and devolved under the Scotland Act.
Care of records of functions which are reserved, but exempt from the provisions of the Public Records Act, 1958.
Care of records of functions which are reserved, but may be transmitted to the Keeper under the 1958 Act.

16. RELATIONSHIP OF ACT TO EXISTING LEGISLATION.

16.1. E.g.: Public Records (Scotland) Act 1937; Public Records Acts, 1958 and 1967; Heritage (Scotland) Act 1985; Health and Community Care Act 1990; Local Government etc. (Scotland) Act 1994; Railway Heritage Act, terms of the Royal Commission on Historical Manuscripts; Local Government (Access to Information) Act, 1985; university legislation; forthcoming human rights legislation, etc. etc.
16.2. Other non-archival legislation.

17. RELATIONSHIP TO OTHER MEASURES

17.1. Data Protection
17.2. Freedom Of Information
17.3. Copyright

18. SCHEDULES AND STATUTORY INSTRUMENTS

18.1 Schedule listing

(i) bodies for whose public records the Keeper is directly responsible:

National Archives of Scotland.
The Parliament of Scotland.
Supreme and sheriff courts, and the judicial committee of the privy council (district courts to be covered by provisions for local government records).
Government departments responsible to Scottish Ministers.
Government departments responsible to UK Ministers and operating in Scotland.
Non-departmental public bodies responsible to Scottish Ministers.
Non-departmental public bodies responsible to UK Ministers and operating in Scotland.
Statutory bodies corporate.
Executive agencies.
Nationalised industries, their residuary bodies and franchising agencies.
Private bodies generating records in respect of the discharge of public functions.

(ii) Bodies having obligations to the Keeper in respect of their public records:

Local authorities, including water authorities, joint committees and joint boards
NHS authorities.

18.2. Statutory instrument providing for additions to schedule 18.1 above, and listing approved places of deposit for public records.
18.3. Statutory instrument defining conditions of access to public records, with reasons for refusing access, and defining and imposing closure periods and criteria for these and for publishing and updating of information regarding these.
18.4. Statutory instrument governing search room regulations in National Archives of Scotland and in places of deposit.
18.5. Statutory instrument governing fee regulations and annual review of fee rates.
18.6. Statutory instrument for the disposal of records.

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