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ANNEX D
The Legislative Context for Records
Management
D.1 Public Records (Scotland) Act 1937
The primary legislation governing the care and
preservation of Scottish public records is the Public
Records (Scotland) Act 1937, together with its associated
Statutory Instruments and Acts of Sederunt.
The Act is permissive rather than mandatory, placing no
statutory duty on a public body to keep records nor to make
selections from them for preservation. The term 'public
record' is not defined. Public records are described as
"any records belonging to Her Majesty".
The purpose of the 1937 Act, is to "make better
provision for the preservation, care and custody of the
Public Records of Scotland" and relates to:
records of the High Court of Justiciary;
records of the Court of Session;
Sheriff Court Records;
records of any government department, board of
trustees or person having custody records belonging to the
crown and relating primarily or mainly to Scotland;
records of the town council of any burgh or any
other local authority in Scotland.
The Scottish Records Advisory Council (
SRAC) is established by the Act, with
the remit to consider questions relating to the custody,
preservation, indexing and cataloguing, access to and
examination of, the public records of Scotland.
Records relating to a government department or belonging
to a local authority may not be destroyed by the Keeper
without the prior permission of the organisation
concerned.
D.2 Public Records Acts 1958 and 1967
Although this is
UK rather than Scottish legislation, in
practice, several of the requirements of these Acts are
applied in the Scottish public sector.
The 1958 Act describes public records as government
records in any format i.e. paper records, machine readable,
photographic material, film, video and samples and models
which have been made for the purpose of conveying and
recording information.
The Act also places a duty on every person who is
responsible for public records to make arrangements to
select those which ought to be permanently preserved for
safekeeping.
The 1967 Act introduced the rule that government papers
should normally be released to the public after 30
years.
D.3 National Heritage (Scotland) Act
1985
Under section 19 of the Act, records dated 1707 or
earlier, may not be destroyed.
D.4 Data Protection Act 1998
The Act is concerned with information held by an
organisation and relating to living, identifiable
individuals. Organisations which hold such information are
required to comply with the eight data protection
principles listed in the Act (see below).
A data subject (i.e. the person about whom information
is held) has the right of access to the information held
about him/her and the right to correct errors in the
information.
The Act requires organisations holding personal
information to notify the
UK Information Commissioner about the
type(s) of information held, the reasons for holding it and
the uses to which it will be put. The organisation or a
member of its staff is to be nominated as Data Controller
for the information stocks.
D.4.1 Data Protection Principles
The principles require that information collected by an
organisation, enterprise or agency is:
fairly and lawfully processed;
processed for limited purposes; adequate, relevant
and not excessive;
accurate;
kept for no longer than is necessary;
processed in line with the individual's rights;
secure; and,
not transferred to other countries without adequate
protection.
In some cases, information may be kept for historical
research purposes and in these cases, such information is
to be transferred to the National Archives of Scotland for
permanent preservation.
D.5 The Transfer of Property etc (Scottish
Ministers) Order 1999 of the Scotland Act 1998
The Order transfers custody, right of access to, and use
of administrative and departmental records to Scottish
Ministers. Provision is also made for any Minister of the
Crown to have access to and use of, any administrative and
departmental records created before 1 July 1999 and now
held by Scottish Ministers.
In practice, when the
UK Government wishes to exercise its
right of access to pre-1 July 1999 records, only those
papers relating to the period before 1 July 1999 should be
released. If a file contains papers dated before and after
1 July 1999, it should be split before the older papers are
sent to Scotland Office.
When a branch is asked to split a file in this way, the
RM Team should be notified of the action
taken and of the destination of the pre-1 July 1999 papers.
A new file should be opened for the post -1 July 1999
papers in the normal way.
When the borrowed papers are returned by the
UK Minister, the original file is closed
and the holding branch asked to decide on its disposal.
D.6 Freedom of Information (Scotland) Act
2002
The Freedom of Information (Scotland) Act provides a
statutory right of access to all types of recorded
information, of any age, produced and held by Scottish
public authorities. The Act is retrospective.
As part of the move towards more open government, all
public authorities are required to produce and submit to
the Scottish Information Commissioner for approval,
publication schemes outlining the types of information
which they intend to publish, how these will be published
and whether the information will be made available free of
charge.
The Act is weighted towards providing rather than
withholding information and in cases where an authority
judges information to fall into the category of an
'exemption', the reasons for that decision are to be
supplied to the information-seeker. In such cases, the
applicant is free to appeal the decision to withhold
information and to take their appeal to the Scottish
Information Commissioner if they disagree with the
justification supplied by the public authority.
D.6.1 Points to Note
- Those requesting information from the
SE do not have to quote the Act but
should submit their information request in writing or
in some other permanent format which can be used for
future reference.
- The Act allows 20 days for an organisation to
respond to an
FOI request, timed from the day on
which the request arrives in the organisation rather
than with the person who will handle it.
- The terms of the Act mean that the traditional
system of closing files to public access will
change.
More detailed guidance on compliance with the terms of
the Freedom of Information Act is available in the two
Codes of Practice
1 issued by Scottish Ministers and the Model Action
Plan
2 produced by the National Archives of Scotland. All
three documents are available from the Scottish Executive
website (
http://www.scotland.gov.uk/about/FCSD/MCG-NW/00018022/Codes.aspx
)
D.7 The Disposal of Records (Scotland)
Amendment Regulations 2003
The Public Records (Scotland) Act was updated in 1940,
1992 and 2003 by Regulations relating to the disposal and
destruction of non-court records, considered by the Keeper
to be unsuitable for preservation.
The Regulations provide for the disposal of the records
of the Scottish administration and the Scottish Parliament,
requiring the Keeper to seek consent from the Scottish
Records Advisory Council, Scottish Ministers and the
Scottish Parliamentary Corporate Body, local authority,
board of heritors or other relevant organisation before
records are destroyed or transferred to another officer or
organisation.
Legislation Consulted
Data Protection Act 1998 available at
URL
http://www.hmso.gov.uk/acts/acts1998/19980029.htm
Freedom of Information (Scotland) Act 2002 At
URL
http://www.hmso.gov.uk/legislation/scotland/acts2002/20020013.htm
National Heritage (Scotland) Act 1985
available in
SE Library in paper format
only.
Public Records (Scotland) Act 1937 available in
SE Library in paper format
only.
Public Records Act 1958(This Act does not extend to Scotland - although some
provisions are applied administratively in Scotland)available in
SE Library in paper format
only.
Statutory Instrument
1992 No. 3247 (S. 262) The
Disposal of
Records (
Scotland)
Regulations 1992 available at
URL
http://www.hmso.gov.uk/si/si1992/Uksi_19923247_en_1.htm
Statutory Instrument 1999 No. 1104 The Transfer of
Property etc. (Scottish Ministers) Order 1999 At
URLhttp://www.hmso.gov.uk/si/si1999/19991104.htm
Scottish Statutory Instrument 2003 No. 522 The Disposal
of Records (Scotland) Amendment Regulations 2003 At
URL
http://www.hmso.gov.uk/legislation/scotland/ssi2003/20030522.htm
1.Scottish Ministers
Code of Practice on the Discharge of Functions by
Public Authorities under the Freedom of Information Act
2002 (Section 60(5)) and
Freedom of Information Act (2002) Code of Practice on
Records Management (Section 61(6))
2.
Model Action Plan for developing records management
arrangements compliant with the Code of Practice on Records
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