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The National Archives and the LordChancellor's Advisory Council onNational Records and Archives in theFreedom of Information EraLâle ÖzdemirPublished online: 05 Jan 2010.

To cite this article: Lâle Özdemir (2009) The National Archives and the Lord Chancellor's AdvisoryCouncil on National Records and Archives in the Freedom of Information Era, Journal of the Societyof Archivists, 30:2, 137-145, DOI: 10.1080/00379810903444961

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The National Archives and the LordChancellor’s Advisory Council onNational Records and Archives in theFreedom of Information EraLale Ozdemir

The implementation of the UK Freedom of Information Act enhanced the transparencyof the public records system because it changed how information held at The National

Archives became available to the public. With the advent of the Act, the previouslyapplied 30-year standard closure period no longer determined access to records; instead,

information is now assumed to be ‘open’ right from the start unless one of the exemptionsset out in the Freedom of Information Act applies. The aim of this paper is twofold: first,

to describe the operational impact the Act has had on The National Archives; andsecond, to examine the way in which the Act has changed the role of the LordChancellor’s Advisory Council on National Records and Archives within the context of

performing a ‘checks and balances’ function in the public records system.

The implementation of the UK Freedom of Information Act (hereafter FOIA) on 1January 2005 gave the public two fundamental rights: to be told whether the publicbody holds the information; and to be provided with that information. The public

body can refuse only if one of the specific exemptions in FOIA applies, and mustexplain why it is not providing the information if that is the case.1 Prior to 2005, the

public could make requests for access to official information under the OpenGovernment Code, but this was not legally binding and requests for information were

not frequent.2 In addition, the Code only applied to information held by centralgovernment. This paper examines the role of The National Archives and the Lord

Chancellor’s Advisory Council on National Records and Archives (hereafter, theCouncil) with regard to records that have been transferred to The National Archives

under the Public Records Act 1958 but have not been released for public access under

Correspondence to: Lale Ozdemir, Secretary to the Advisory Council, The National Archives, Kew,Richmond, Surrey, TW9 4DU, UK. Email: Lale.Ozdemir@nationalarchives.gsi.gov.uk

Journal of the Society of ArchivistsVol. 30, No. 2, October 2009, 137–145

ISSN 0037-9816 (print)/ISSN 1465-3907 (online) � 2009 Society of ArchivistsDOI: 10.1080/00379810903444961

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FOIA. The scope of this article does not extend to the slightly unique position of thearchival sector in relation to research use of information.3 In addition, it is important

to note that the United Kingdom FOIA does not apply in Scotland. A separate Freedomof Information (Scotland) Act was passed in 2002 and came into force in 2005.4

The National Archives’ Role in the FOI Era

The National Archives brings together the Public Record Office, the Historical

Manuscripts Commission, the Office of Public Sector Information and Her Majesty’sStationery Office. In this article, it is the Public Record Office’s responsibilities thatare being described but the name The National Archives is used throughout.5

FOIA makes special provisions relating to public records that have been transferredto The National Archives or to another place of deposit for public records but have

not yet been released for public access.6 These provisions ensure that when TheNational Archives receives a request for information in a closed record, the decision

as to whether the information should be provided or not is made on a collaborativebasis involving both The National Archives (as the body holding the information)

and the government department that transferred the records (as the body withspecialist expertise in particular sensitivities that might arise).7 The process varies

according to whether an exemption applies or not and, if an exemption does apply,whether that exemption is an absolute or a qualified exemption.8 With absoluteexemptions, there is a single decision to be made: does the exemption apply? With

qualified exemptions, there is a further decision to be made: does the public interestlie in releasing or withholding the information?

The process works as follows:

. The National Archives must consult the relevant department about theapplication of exemption(s) that might prevent the release of the information.

However, the decision as to whether an exemption applies is made by TheNational Archives.

. If it is decided that no exemption applies, the applicant (the individual who has

made the FOI request) is informed and the information is released.. If it is decided that an exemption applies and the exemption is an absolute one, the

applicant is informed through a refusal notice as required by section 17 of FOIA.. If it is decided that an exemption applies and the exemption is a qualified one, the

department must assess where the public interest lies.. The applicant is informed that the application of a qualified exemption is being

considered.. If the department considers that the public interest lies in withholding the

information, before making the final decision it must consult the Lord Chancellor(It does not have to consult him if it decides that the public interest lies inreleasing the information). The Advisory Council has a role at this stage which

will be described shortly. The department then finalises its decision.

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. The department informs The National Archives of its decision and The NationalArchives sends the formal response to the applicant as required by section 17 of

FOIA if information is to be withheld.

The process can be illustrated by an example. If The National Archives receives arequest for information contained in a closed unsolved murder case file transferred

from the Metropolitan Police Service (MPS), it conducts an initial review of theinformation and then consults the MPS, drawing its attention to any exemptions that

might apply. The MPS reviews the information, relying on a report provided by TheNational Archives outlining the contents of the record along with a summary ofpotential sensitivities. The department, the MPS in this case, may wish an absolute

exemption, such as the exemption at section 40 (personal information) to be appliedbecause the record contains unsubstantiated allegations of a criminal nature about a

living individual. As this is an absolute exemption, the MPS need not consult the LordChancellor (through the Council). Provided the department and The National

Archives agree on the application of the exemption, the applicant is informedaccordingly.

However, if information within the unsolved murder case file attracts a qualifiedexemption, such as the exemption at section 31 (law enforcement), the MPS is

obliged to carry out a public interest test to determine whether the public interest liesin releasing or not releasing the information. When carrying out a public interest test,the MPS will consider several factors, including when the crime took place and the

age a suspect would be today. They will assess whether, given advances in thetechnology of police investigative methods, the crime could still be solved. If the MPS

determines that the public interest lies in refusing to release the information becauseit would not be in the public interest to jeopardise a possible future criminal

prosecution, it then has to consult the Lord Chancellor.9 The Lord Chancellor hasdelegated this responsibility for historical information to the Advisory Council. The

Advisory Council Secretariat sets up ad hoc panels of Council members to performthis function. The panels consider the public interest test applied by the MetropolitanPolice Service and advise on behalf of the Lord Chancellor on each case. If the panel

agrees that the public interest favours refusing to release information relating to theunsolved murder, The National Archives informs the applicant of the decision to

refuse access. If the panel is not satisfied that it is in the public interest to withholdthe information, it seeks further clarification.

Prior to the passing of FOIA, records were released at 30 years old unless the LordChancellor had approved a variation to this standard closure period, either to bring

forward the release date (‘accelerated opening’) or to delay it (‘extended closure’). Inboth cases, he gave his approval through a formal Instrument known as the Lord

Chancellor’s Instrument or LCI under section 5(1) of the Public Records Act. FOIAhas superseded this 30-Year Rule.10 However, this change has not affected the date bywhich government departments and other bodies subject to the Public Records Act

are required to transfer records selected for permanent preservation to The National

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Archives or to another place of deposit for public records. The statutory deadline of30 years remains.11 Departments wishing to delay transfer must apply to the Lord

Chancellor for permission to do so. His permission is given in another LCI, this timeunder section 3(4) of the Public Records Act.12

The National Archives was one of the first public authorities to create a FOI Unitprior to the implementation of the Act, and since 2005 has often been one of the top

three central government departments in terms of the number of FOI requests receivedper quarter. Note that FOI requests relating to open information held at The National

Archives are included when calculating the total number of requests received. In thefirst quarter of the first year of FOIA in 2005, The National Archives received 1,749 FOIrequests to information, 532 of which were for information in closed records.13

Between 1 January 2005 and 31 July 2009, The National Archives had received 10,540FOI requests to closed records where the applicant has made specific requests for access

to closed information.14 The National Archives handles between 250 and 450 requeststo closed records at any given time, with approximately 97 per cent answered within the

statutory deadlines stipulated by the Act.15 One of the underlying reasons for TheNational Archives’ consistently high number of FOI requests is that its Catalogue,

which lists all of the records held by The National Archives, links to a straightforwardelectronic form for the public to use in requesting access to closed records.16

The expected impact of FOI caused the creation of the FOI Unit with two membersof staff in 2004. By the time of writing it had become the FOI Centre, with nine full-time staff working on the handling of incoming requests (requests to closed

information and corporate information only). The volume and complexity ofrequests received has ensured that The National Archives has developed considerable

expertise in the sensitivities that apply to historical information.The National Archives has been and continues to be pro-active in the release of

information. During 2004, an exercise to re-review transferred records that were stillclosed led to the release of 50,000 records to mark the full implementation of the Act in

January 2005. The scope of records released included such topics as the revision ofsupplies needed in an emergency,17 health measures to discourage smoking ingovernment departments18 and arrangements for tracing smallpox contacts.19 In the

FOI era, The National Archives continues to release large volumes of information whichhas not been requested but need no longer be withheld or which was subject to an

exemption which has now fallen away.20 The National Archives also publishes lists of allthe closed records that have been opened as a result of FOI requests.21 This transparent

approach by The National Archives is because the Chief Executive continues to have astatutory obligation under the Public Records Act to arrange that reasonable facilities are

available to the public for inspecting and obtaining copies of records that are released.22

The Role of the Lord Chancellor’s Advisory Council in the FOI Era

The function of the Lord Chancellor’s Advisory Council on National Records and

Archives is to advise the Lord Chancellor, and through him other ministers as

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appropriate, on all matters relating to records and archives in the United Kingdomand in particular England and Wales. The remit of the Council for the United

Kingdom as a whole is without prejudice to matters covered by records andarchives legislation of the devolved administrations. The Council was established by

the Lord Chancellor on 1 April 2003 to reflect his wider role in relation to archivesfollowing the bringing together of the Public Record Office and the Historical

Manuscripts Commission within The National Archives. As a Ministry of JusticeNon-Departmental Public Body that operates independently, the Council performs

an important ‘checks and balances’ function in the public records system because itadvises government on behalf of the public. The Council has a wide-ranging remitand carries out three separate functions which reflect its origins as three distinct

bodies, but it operates as one Council.23 The three main functions are outlinedbelow.

Public Records – Retention under The Public Records Act and matters relating toaccess or closure under FOIA: This function currently forms the majority of theCouncil’s work. The Council advises on applications from government depart-ments for the retention of public records. Records are normally transferred to TheNational Archives by the time they are 30 years old, and government departmentsare required to seek the approval of the Lord Chancellor to keep them in theircustody beyond that date. Records are normally retained if they relate to security orintelligence matters, or are required for ongoing business. Within this remit, theCouncil also advises government departments on information management issuesthey may have. For example, in exceptional circumstances a department may seek amoratorium on the transfer of records or may seek to re-close informationpreviously open. The Council advises on such issues, as can be seen in its annualreport of 2007–2008.24

When a government department wishes to refuse access to historical informationheld at The National Archives on the grounds that a qualified exemption applies, itis obliged to consult the Lord Chancellor as described above. This role has beendelegated to his Council. The Council also has a role in advising on the closure ofpublic records upon transfer to The National Archives (FOIA).25

Non-Public Records: The Council also has a role in advising on general issuesrelating to non-public records for all of the United Kingdom. In practice, theCouncil advises the Chief Executive of The National Archives as HistoricalManuscripts Commissioner on cases where private archives have been accepted inlieu of inheritance tax by the government and a decision is needed on where theyshould be allocated and any conditions that should be imposed. The Councilreceives progress reports on the care of such archives, and also considers archivalstrategy from The National Archives in relation to non-public records.

The Public Records System Generally (including policy and legislative changes at TheNational Archives): The Council considers the effect on the public records systemon such issues, and advises the CEO of The National Archives accordingly.

The introduction of FOIA has strengthened the role of the Council in advising on

public access to public records. Previously the Council reviewed applications for

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closure of records beyond the standard 30-year period. In the FOI era, it has anexplicit role in advising the Lord Chancellor on the application of FOIA to historical

information.26 At its quarterly meetings the Council considers applications forclosure of records, which always state the volume of records the government

department seeks to close, the date range of the records and the FOIA exemption(s)under which it seeks to close the information. For example, the Ministry of Justice

may seek to close sensitive information about juvenile defendants for the lifetime ofthose persons under the personal information exemption (section 40). The Council

can find itself reviewing up to a thousand such individual applications at eachmeeting.

If the Council has any doubts about an individual application, it requests more

information from the government department about its sensitivity. The Council onaverage queries up to 5 per cent of total applications. In the vast majority of cases,

once the Council has received more detail on a queried closure, it is satisfied that it isin the public interest for the information to be closed. However, the Council

sometimes concludes that it is not in the public interest for information to be closed.When this occurs, the government department usually withdraws its application for

closure and reassesses the sensitivity of the information in question or, exceptionally,the cases can be escalated to the Lord Chancellor for consideration. The annual

reports of the Council which are laid before Parliament not only contain examples ofwhere the Council has sought further information or has advised against the closureof information, but also where government departments have proactively released

information.27

The Council also has a role when a government department wishes to refuse access to

information held at The National Archives, as described above. This particular functionhas introduced an additional layer of scrutiny of government when a department wants

to keep closed historical information in transferred records on the grounds that thepublic interest lies in claiming an FOI exemption. Several ad hoc panels of three

volunteer Council members are convened every year to consider the public interest testthe government department has carried out. Last year, over 30 such panels wereconvened to advise on hundreds of cases. This not only reflects the consistently high

number of FOI requests received by The National Archives but also indicates theresource implications for both the FOI Centre of The National Archives and the

Council’s volunteer members. Panels usually advise on a range of sensitivities but mostcommonly tend to advise on the public interest in high profile unsolved murder cases,

diplomatic relations and crimes of a gruesome nature. As the body that oversees thetransfer process and gives consistent advice, the Council has influenced the access

decisions of government. For example, in 2004, the Council was instrumental inadvising on the principle adopted by central government departments that the lifespan

of a living individual should be estimated at a hundred years for the purposes ofcalculating the closure period for sensitive personal information.28

The Information Commissioner’s Office (ICO) is the body that regulates access

and privacy legislation. It promotes access to official information and protects

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personal information by encouraging good practice and investigating and ruling oncomplaints.29 In key areas where the ICO has investigated appeals relating to

information held at The National Archives that has previously been considered by theCouncil, its findings have in most cases mirrored the advice of the Council. The

advice given by the Council that some information on high profile prisoners such asMyra Hindley, Harold Shipman and the Krays should be closed under certain

exemptions was mirrored in a decision notice of the ICO.30 In another case, its advicewas consistent with a decision of the Information Tribunal,31 which hears appeals

against ICO decisions. In this case the Tribunal upheld the decision of The NationalArchives and the Metropolitan Police Service not to release the unsolved murder casefile on Jean Mary Townsend.32 The Lord Chancellor’s Advisory Council had on a

number of occasions advised that the public interest favoured not releasing theinformation.

Despite being a small public body with no executive functions, this suggests thatthe work of the Council in performing an independent ‘checks and balances’ role

enhances the transparency of the public records system in the FOI era. Theresponsibilities under FOIA delegated to the Council by the Lord Chancellor ensures

that the Council first and foremost considers the public interest when advising onaccess to historical government information, thereby providing an additional layer of

scrutiny in the public records system since the advent of FOIA.

Notes

[1] UK. Laws, Statutes etc. Freedom of Information Act 2000, c.36, 2000. Sections 1 and 17.[2] UK. Government. Open Government Code of Practice on Access to Government Information,

2nd ed. 1997.[3] The National Archives (TNA). Freedom of Information and the archives: your rights of access.[4] UK. Laws, Statutes etc. Freedom of Information (Scotland) Act 2002, asp. 13, 2002.[5] Although these bodies remain separate legal entities, they function as a single entity and the

name The National Archives is used for operational purposes.[6] The Freedom of Information Act refers to the Public Record Office, not The National

Archives, but to avoid confusion the name The National Archives is used throughout thisarticle because it is the name used for operational purposes.

[7] Section 15 of the Freedom of Information Act identifies The National Archives as the‘appropriate records authority’ and the relevant government department as the ‘responsibleauthority’. Section 66 then sets out the responsibilities of the records authority and theresponsible authority when a request is received for records that have not yet been released.

[8] UK. Laws, Statutes etc. Freedom of Information Act 2000, c.36, 2000. Section 2(3). Ministry ofJustice. Guidance on Absolute and Qualified Exemptions.

[9] Section 66 of Freedom of Information Act 2000. The Lord Chancellor’s Advisory Council onNational Records and Archives advises on behalf of the Lord Chancellor with regard tohistorical information with the exception of section 23 (Information supplied by, or relatingto, bodies dealing with security matters).

[10] Section 5(1) Public Records Act, 1958 was deleted by the Freedom of Information Act 2000(c.36), sch.5, para.2. Formerly: ‘Public records in the Public Record Office, other than those towhich members of the public had access before their transfer to the Public Record Office, shall

The National Archives in the Freedom of Information Era 143

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not be available for public inspection [until the expiration of the period of thirty yearsbeginning with the first day of January in the year next after that in which they were created,or of such other period], either longer or shorter, as the Lord Chancellor may, with theapproval, or at the request, of the Minister or other person, if any, who appears to him to beprimarily concerned, for the time being prescribe as respects any particular class of publicrecords.’

[11] In his ‘Liberty’ speech in October 2007, the Prime Minister said that ‘It is time to lookagain at whether historical records can be made available for public inspection much moreswiftly than under the current arrangements.’ See http://www.number10.gov.uk/Page13630(accessed 25 November 2009). The Prime Minister subsequently commissioned a review ofthe current 30-year transfer period. Independent Review. Review of the 30 Year Rule, January2009.

[12] Public record bodies can retain their records beyond 30 years under section 3(4) of PublicRecords Act, 1958.

[13] Figure for total number of requests for first quarter of 2005 from UK GovernmentDepartment for Constitutional Affairs. Figure for number of FOI requests to closed recordsfrom an internal document held by the Lord Chancellor’s Advisory Council on NationalRecords and Archives (dated 17 March 2009).

[14] Figure from internal document held by The National Archives (dated 26 August 2009).[15] The National Archives is allowed an additional 10 working days to respond to FOI requests

relating to transferred records that have not yet been released. Statutory Instrument. TheFreedom of Information (Time for Compliance with Request) Regulations 2004.

[16] http://www.nationalarchives.gov.uk/catalogue/default.asp?source¼ddmenu_search3&j¼1 (ac-cessed 1 September 2009).

[17] The National Archives’ Catalogue, file reference: STAT 14/3855, http://www.nationalarchives.gov.uk/catalogue/displaycataloguedetails.asp?CATLN¼6&CATID¼3458133&SearchInit¼4&CAT(accessed 6 September 2009).

[18] The National Archives’ Catalogue, file reference: BA 23/30, http://www.nationalarchives.gov.uk/catalogue/displaycataloguedetails.asp?CATLN¼6&CATID¼8039224&SearchInit¼4&CATREF¼BAþ23%2F30 (accessed 6 September 2009).

[19] The National Archives’ Catalogue, file reference: MH 148/367, http://www.nationalarchives.gov.uk/catalogue/displaycataloguedetails.asp?CATLN¼6&CATID¼3851088&SearchInit¼4&CATREF¼MHþ148% 2F367 (accessed 6 September 2009).

[20] Under section 63 of FOIA, some exemptions fall away when the record containing theinformation is more than 30 years old.

[21] See http://www.nationalarchives.gov.uk/releases/2009/default.htm (accessed 6 September2009).

[22] UK. Laws, Statutes etc. Public Records Act 1958, c.51, 1958. Section 5(3).[23] The Advisory Council on Public Records, The Advisory Council on National Records and

Archives and the Advisory Council on Historical Manuscripts. For the terms of reference ofthe Council see http://www.nationalarchives.gov.uk/advisorycouncil/tor.htm (accessed 1October 2009).

[24] http://www.nationalarchives.gov.uk/advisorycouncil/default.htm (accessed 8 October 2009).[25] Ministry of Justice. Guidance on Codes of Practice.[26] The Public Records Act was amended to this effect through paragraph 1 of Schedule 5 to

FOIA.[27] Advisory Council. Reports to the Lord Chancellor.[28] Internal Advisory Council file: Life expectancy and the closure of personal records (reference

ACNRA/04/11), February 2004.[29] Information Commissioner’s Office.

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[30] The Council does not have a role in advising on procedural matters. Decision notice dated 19/03/2009, http://www.ico.gov.uk/tools_and_resources/decision_notices.aspx.

[31] Information Tribunal.[32] http://www.informationtribunal.gov.uk/DBFiles/Decision/i134/Hargrave.pdf, Ruling dated 3

December 2007.

References

Information Commissioner’s Office. Available at http://www.ico.gov.uk/ (accessed 11 December2009).

Information Tribunal. Available at http://www.informationtribunal.gov.uk/ (accessed 11 December2009).

The National Archives (TNA). ‘Freedom of Information and the archives: your rights of access’.Undated leaflet. Available at http://www.nationalarchives.gov.uk/documents/access_rights.pdf (accessed 1 September 2009).

———. Document releases. Available at http://www.nationalarchives.gov.uk/news/latest-releases.htm (accessed 6 September 2009).

———. Advisory Council. Reports to the Lord Chancellor. Available at http://www.nationalarchives.gov.uk/advisorycouncil%5Cdefault.htm (accessed 11 December 2009).

———. Advisory Council on National Records and Archives. Role and Functions of the Council.Available at http://www.nationalarchives.gov.uk/documents/ac-role.pdf (accessed 11December 2009).

UK. Government. Department for Constitutional Affairs. Available at http://www.dca.gov.uk/foi/reference/statisticsAndReports.htm (accessed 6 September 2009: archived content).

———. Open Government Code of Practice on Access to Government Information, 2nd ed. 1997.Available at archived site http://www.dca.gov.uk/foi/ogcode984.htm#what (accessed 1September 2009: archived content).

UK. Laws, Statutes etc. Freedom of Information Act 2000, c.36, 2000. Available at http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_1 (accessed 1 September 2009).

———. Freedom of Information (Scotland) Act 2002, asp. 13, 2002. Available at http://www.opsi.gov.uk/legislation/scotland/acts2002/asp_20020013_en_1 (accessed 11 December2009).

———. Public Records Act 1958, c.51, 1958. Available at http://www.opsi.gov.uk/acts/acts1958/pdf/ukpga_19580051_en.pdf and at http://www.nationalarchives.gov.uk/policy/act/default.htm(accessed 11 December 2009).

———. Statutory Instrument. The Freedom of Information (Time for Compliance with Request)Regulations 2004. Available at http://www.opsi.gov.uk/si/si2004/20043364.htm (accessed 12December 2009).

———. Independent Review. Review of the 30 Year Rule, January 2009. Available at http://www.30yearrulereview.org.uk/ (accessed 1 September 2009).

UK. Government. Prime Minister. Speech on ‘Liberty’, 25 October 2007. Available at http://www.number10.gov.uk/Page13630 (accessed 11 December 2009).

———. Ministry of Justice. Guidance on Absolute and Qualified Exemptions. Available at http://www.justice.gov.uk/guidance/foi-exemptions-public-interest.htm (accessed 7 October 2009).

———. Ministry of Justice. Guidance on Codes of Practice. Available at http://www.justice. gov.uk/guidance/foi-guidance-codes-practice.htm (accessed 16 October 2009).

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