Education, Lifelong Learning and Culture Committee

Meeting date: Wednesday, December 8, 2010

Official Report 358KB pdf

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Public Records (Scotland) Bill: Stage 1

It gives me pleasure to welcome our witnesses this morning. George Mackenzie is keeper of the records of Scotland, Bruno Longmore is the bill team leader and Hugh Hagan is a member of the bill team. All of them are from the National Archives of Scotland. Lindsey Henderson is a principal legal officer from the Scottish Government.

I invite the keeper to make an opening statement.

Thank you, convener.

The Public Records (Scotland) Bill fulfils a key recommendation of the 2007 Shaw report, which found that poor record keeping creates difficulties for former residents of children’s homes who try to trace records about themselves and their time in care. Shaw recommended that the Government review the legislation on public records with a view to renewal. As keeper, I was asked by ministers to conduct that review, which concluded in 2009 that existing legislation on public records was no longer adequate for purpose.

The public consultation in the summer outlined proposals for new legislation, and more than half of respondents stated that lasting improvements to record keeping would require legislation. Less than 5 per cent thought that legislation would not be appropriate.

The bill is short, simple and light touch. It is about looking to the future and modernising how we look after records. As the bill’s title suggests, it is about management of records by authorities. It requires named public authorities to produce and implement a records management plan that is to be approved by the keeper. The keeper has to produce a model plan and guidance based on existing best practice, which strongly encourages self-assessment by public authorities.

When an authority engages a private or voluntary sector body to carry out functions on its behalf, the authority will be responsible for ensuring that the body manages the records relating to that function in line with the authority’s own records management plan. That tackles a key problem that Shaw found: when organisations have provided services on behalf of public authorities, the records have frequently disappeared once the service has terminated or the organisation is dissolved. It is important to note that the bill will not put any obligation on the voluntary body, nor will it give the public authority any power to force the body to do anything.

The bill does not make provision about public access to records, which is already covered by the Freedom of Information (Scotland) Act 2002 and the United Kingdom Data Protection Act 1998. The bill ensures that appropriate records are kept to which access can be given under those acts.

To sum up, ministers’ proposals are not about creating more work for public authorities or burdens for the voluntary sector. The bill is not about prescribing what public records are to be created, but about improving the way in which they are managed. The bill will not lead to more records; in fact, better management means that records with no long-term value can be destroyed sooner. Shaw and, a little later, the Kerelaw inquiry showed just what can happen when we do not pay proper attention to records. That gives the bill strong moral and practical backing, but in the end it is about better management, good governance and improving efficiency in public services.

It is worth saying that, as human memory fades, it is the records, such as those being kept this morning by the official reporters, that are the evidence of actions and decisions. The Public Records (Scotland) Bill will help to manage records better and to safeguard them for the future.

Thank you very much, Mr Mackenzie. That was very helpful. Obviously, the Shaw report made three specific categories of recommendation. Will you give a little more detail on how you will tackle each of them?

First, Shaw found inconsistencies in practice. One reason why we believe that legislation is necessary is to ensure a consistent set of standards across the whole public sector. That does not mean that we intend to prescribe every detail of how authorities manage their records, but that we believe that it is necessary to have across the public sector a consistent framework in which public authorities develop their own plans taking account of their sectoral requirements.

The second point that came out of Shaw is the issue of voluntary bodies, which is definitely a problem. For example when, in adulthood, survivors of care tried to find out what had happened to them, they found that the body that had looked after them no longer existed or that the care home had closed down. They did not know where to go to get their records. I believe that some survivors are still having difficulty in finding out what has happened to their records.

Thirdly, the petition to the Parliament that preceded the Shaw report indicated that inadequate record keeping was widespread. The records that came to Government and into the National Archives of Scotland were preserved. However, in many cases, care homes had not properly kept their records. Those are the main ways in which we will tackle the principal areas to which Shaw drew attention.

How extensive are variations across the board? Are we talking about a large number of variations, or about a sizeable minority?

That is a difficult question. Based on the evidence that we have—the evidence from the first inquiry that took place after the petition to the Parliament, Shaw’s work and the review that we carried out—there is quite a lot of inconsistency across the whole public sector. The legislation on records, which dates back to 1937, is not particularly well known. It was drawn up in a completely different age when a lot of the issues that we see nowadays did not occur, or did not occur to the legislators at the time. Part of our review was to hold focus groups and structured interviews with records managers and public authorities. The very strong impression that we gained was of very inconsistent practice: some places do it extremely well, other places do it less well and some do not do it at all.

Is there confusion among the affected groups about whether they should be part of this?

Some groups will look to more recent legislation such as the Data Protection Act 1998 and realise that they have a right under that. From press reports, we know that there is a lot of ignorance on exactly what data protection means, as there is on freedom of information legislation. Freedom of information and data protection can be called in to back up requests for access, but both are only as good as the records that carry the information that underlie them. If the records do not exist, there is no information, so the rights that one may have under subject access, data protection or freedom of information cannot operate.

It strikes me from the evidence from the Scottish Information Commissioner that he seems to take the view that a voluntary approach would be more appropriate. Obviously, I understand why you do not feel the same way. Will you comment on his view?

I understand the commissioner’s point; he is relating the situation to his position and the operation of the Freedom of Information (Scotland) Act 2002. My honest view on a voluntary approach is that it would work quite well if we were to start doing it right now. Given all the attention that Shaw has drawn to the issue and the fact that a committee of the Parliament is considering the bill, I am convinced that we would get a good result, for a while. The big problem—this is my reason for thinking not that the commission is mistaken but for taking a different view—is what happens after two years or so when the good practice does not continue. As memories fade on the difficulties that we had encountered, record keeping would slip back again in the minds of administrators, perhaps until the next big scandal. Something terrible would happen, for example, to looked-after adults in care.

I suspect that people do not pay attention to records. Of course, I would say that as keeper of the records, but records are fundamental to all our rights and obligations, and we rarely pay attention to them until something goes wrong. We then suddenly realise that we do not have a record any more or that the record is rather embarrassing. We take action only then.

I am sorry to go rather round about the issue. A voluntary approach would have an effect for a while, but I do not believe that that effect would be lasting. We believe that legislation is the only way to get consistency and durability in better record keeping. In addition, we have estimated that the cost of a voluntary approach would be more or less the same as the cost of a legislative approach.

Do the bill team and others have a view on whether the voluntary approach has been considered?

We have certainly looked at the voluntary approach. As Mr MacKenzie said, the cost of that approach was seen as being equivalent to the cost of legislating. Its main focus was on providing a framework across the public sector. Legislation will at least deliver a level playing field, but it will not deliver solutions for individual sectors: that will remain for individual sectors to address. For example, the Looked After Children (Scotland) regulations 2009 address particular issues relating to records, but the bill will present a level playing field on which individual sectors can assess areas of risk and perhaps identify problems in a sector that can be considered in more detail.

A voluntary approach would make things very piecemeal and would make it quite difficult to deal with standards. There is a lot of guidance on records management and there is a lot of information and some very good practice out there, but there is no overarching standard that can be used and addressed. The proposals in the bill require named public authorities to present or implement an agreed records management plan. By doing that, where problems may arise in sectors or across all the public authorities can be identified through the office of the keeper.

I concur with everything that my colleagues have said. From a practical point of view, my job in the National Archives of Scotland for the past eight years has involved working closely with Government bodies on the provision of advice and guidance to them on their records management. I agree that, with the voluntary approach that we have at the moment, there is some good practice and some not so good practice, which is indicative of the playing field that we are on. People have good intentions and do things for a time, but other priorities tend to take over in the longer term and records management falls back. We are continually advising the same people on the same issues over a long period. That is how things work at the moment; I do not think that things would get any better if we went down a voluntary route.

I do not think that many people would disagree with the contention that vulnerable people, such as people who have been in children’s homes, have the right to have their records and the system around them protected by law, but would you comment on the written evidence that we have received on the scope and number of organisations that should fall under the legislation? For instance, the National Museums of Scotland finds it difficult to understand why it would be bracketed with children’s homes. What number of organisations needs to fall within the scope of the legislation?

10:15

The schedule to the bill indicates the range of bodies that we believe should fall within the legislation. I agree that the decision whether an individual body falls or does not fall within it could be somewhat marginal, but overall we are aiming to catch all the organisations that are connected directly to Scottish Government, that receive substantial public funding and which are producing and providing services to the public.

Although Shaw is the driving force—or, perhaps, the moral imperative—behind the legislation, we do not see the bill as trying to solve only the Shaw problems. It has come out in the review of legislation and, in a sense, in the evidence on the bill, that the attitude to records is not consistent, as it should be across the public sector, and that there would be great benefits to the public sector in terms of efficiency, accountability and governance if record-keeping standards generally were raised. That is why we have deliberately gone wider than simply the organisations that look after vulnerable people. We believe that the legislation should go further than that, which is why NMS finds itself within the scope of the bill.

Good morning. Section 3(1)(b) of the bill deals with

“records created by or on behalf of a contractor”.

Mr MacKenzie has already said that he does not think that the bill would impose any duties on the third sector, because the responsibility would rest on the authority to manage its records. Notwithstanding that, I believe that the third sector has expressed concerns about the requirement. One comment that has been made is that it would

“mean that every document, minute or email we produce discussing in any way the delivery of a service for a public authority would be deemed a public record and could therefore be subject to the provisions of this bill”.

That is quite concerning if it is correct. Can panel members give their views on the impact on the third sector?

That question goes to the heart of one of the voluntary sector’s big concerns. We take those concerns very seriously. We have already engaged with the voluntary sector and are in the process of setting up a further meeting to draw out some of their concerns.

My main point is that their concern that the definition of “public record” means that every scrap of information that voluntary sector bodies produce will be subject to the legislation and will therefore have to be kept or be put into the public domain in some way, which I think underlies their fear, is not correct. The intention is not that they will have to keep every single piece of paper; it is simply that the authority will ensure that they manage the records relating to that function in accordance with the authority’s own plan.

I emphasise that the bill is about good management of records. That does not mean keeping everything; in fact, it would possibly be the worst form of record keeping to keep everything or put everything into the public domain, because one would be able to find nothing at all. Good records management is about identifying what is important: what are the vital records and what records have long-term value? We identify those and draw up schedules that say that records will be kept for 10 years or permanently or, on the other hand, that a record need be kept for only six months and can then be destroyed. Ultimately, we take the voluntary sector’s view very seriously, but we believe that it is based on a misinterpretation of the way in which the bill is intended to work and also on a misinterpretation of the relationship that voluntary sector bodies have with the local authority.

The point that I made at the outset was that the bill says nothing whatever about putting any obligation on voluntary bodies. The responsibility will be with the authority, not with such bodies. The bill will not give an authority any power whatever to force the voluntary body to do anything and will not change the status quo at all. The voluntary sector is concerned about that, but that is not the intention and it is not in the bill.

In our discussions with colleagues from the third sector, voluntary and private organisations, confusion has arisen about data protection and freedom of information legislation. They feel that lots of organisations have not yet got to grips with that. The bill is an example of that confusion because there is misunderstanding of its proposals. It is not about freedom of information or data protection; it is about something quite different and there is a danger that issues are being conflated.

As we know, all information that is recorded in a public authority is subject to that other legislation and can be asked for by a member of the public through an access request. Similarly, all the information that pertains to an individual can be asked for through a subject access request under data protection legislation. That is fine as it stands, but what we propose in the bill will have no impact on that. All that we seek to do through the bill is to ensure that records that are created, which are created in any case by every organisation, that they are managed through their life cycle, retained where they need to be retained for longer, but destroyed auditably and correctly after the shortest possible time so that they do not take up space and resources or cause confusion.

I back up what George MacKenzie said and confirm that a public authority creates public records of its functions and those of a contractor that carries out functions on its behalf. Where a contractor produces lots of records about a function, they might well be public records, but the bill does not say what has to happen to those records. It does not say, “You have to keep them for X amount of time”; it simply says that the records have to be managed by the authority in accordance with its plan. The bill does not impose any duties on the contractor. As George MacKenzie said, the bill does not give the authority any new powers to make contractors do anything.

It was mentioned earlier that the voluntary sector’s view was based on a misinterpretation of the bill. Are you confident that the authorities will not misinterpret it? Each of them will look at the bill in the light of their own circumstances and make their decisions in that way.

We can ensure that that is not the case through approval of the records management plans. We will encourage a lot of dialogue about the creation of the plans in the run up to the commencement of the legislation. The model records management plan that we will produce will also give clear guidance. Between the records management plan approval and the guidance that the keeper will produce, we will seek to ensure that if a public authority took what in my view is the completely crazy opinion that all records should be kept, we would be able to avoid that by not approving a records management plan that said that the contractor will have to keep everything.

Another concern was that confidential records would become available in the public domain, such as records that are

“crucial to developing and maintaining trusting relationships”.

You are confident that that would not be the case.

Yes. The bill makes no change whatsoever to the situation about information of that kind—confidential or otherwise. We are not doing anything to alter the status quo in relation to confidentiality of therapists’ notes and so on.

You mentioned that you are going to have meetings with the relevant organisations. Are you confident that you will be able to assuage their fears and worries and, if necessary, propose amendments that would put their minds at rest?

There is a clear challenge to meet their concerns and that is why we are actively working on a forum and having discussions with them. The challenge for us, as the officials who are dealing with the bill, is to make the arguments to the voluntary sector and show it that it is misinterpreting how the bill will operate. It will also be helpful to share with the sector some of our thinking about what would go into a records management plan and the guidance.

The other thing that we need to try to do is to get officials to speak to the records managers—some of the voluntary sector has them—who will probably understand more about what good management of records is. That is not an expensive or difficult thing to do.

You do not believe or accept that there is any need for the bill to be withdrawn.

I am sure that you would not expect me to say that I do. We are here as officials; questions about the legislation and the proposals and so on are for the minister to answer when you speak to her next month.

As a professional record keeper, I fundamentally believe in the bill. I believe that it is necessary and that we have got the balance about right between the need to be a little prescriptive in having a records management plan and the need to be not too over the top.

We considered the model in New Zealand, which two years ago passed a records act that is very much more prescriptive and really lays down the law to public authorities. We did not believe that that was an appropriate way to go in Scotland, so we have pitched our approach at the level that we think is correct. As an archivist and keeper of the records, I believe that we have the balance right in the bill.

I want to ask about the impact on local authorities. The submission that we received from the Convention of Scottish Local Authorities flagged up a few concerns, although I think that it was generally in favour of the principle of better record keeping. Its first concern was about the definition of “public record”. Is that a genuine concern? Do we need to do more to make sure that the definition is clarified?

If you believe that linked to the notion of “public record” is the idea that you have to keep the record, put it all in the public domain or do certain things, I can understand that concern. However, that is not the case. The definition is deliberately wide and we believe that that is necessary to catch all the potential pieces of information and records that are created. I emphasise that we are not trying to prescribe what is to happen to records that are deemed to be public. It does not mean that they are put in the public domain or that they have to be kept; it simply means that they have to be managed according to a structured plan.

COSLA perhaps got unnecessarily hung up on the definition, which has to be wide because it is difficult for us to predict now what records public authorities might create in the future. I guess that most such records will be digital in the future. Our definition is wide so that it is future proof and potentially will apply to information that is recorded in any form that the authority might produce. That is part of the approach, but it does not mean that the authority will have to do certain things with the records, such as making them public or looking after all of them.

With the concordat between central Government and local government, there is greater scope for flexibility for councils setting their own local agendas. Do you see any conflict between that and asking for consistency on a national basis, or do you think that the balance can be maintained quite satisfactorily?

I think the balance needs to be maintained. The consistency that we are talking about relates to a fairly broad framework, within which there is plenty of scope for individual changes and conditions to be taken into account when an authority is drawing up its plan. We would expect, for example, that most of the Scottish local authorities would have similar records management plans and we would be keen to work with them to ensure that that was the case. However, that would be a decision for them, in conjunction with us. We are looking for overall broad consistency, rather than specifics.

Can you clarify whether the historic private archives that are under local authority control would be covered by the bill?

The bill says nothing at all about the ownership of records; it would depend on the circumstances in which the authority had received or taken in the records. I know that many local authorities operate historical archives, and in some cases records have been gifted or left to the authority. In those cases, the records would be covered by the bill. However, records that were deposited with the local authority would not be covered. The same really applies in the National Archives of Scotland. Essentially, we are the public record keeper—the nation’s memory—but we also have some very rich private collections. Some of those have been bought by the nation and are now considered to be public as well, but some collections are simply deposited with us, and the ownership of those is still with private bodies.

10:30

I apologise for my late arrival this morning, convener.

We have picked up from a number of responses concern about the length of the consultation period and its timing, given that it fell between June and August, which is obviously a holiday period. What are your views on the consultation and those criticisms?

Certainly, the consultation period was short: it was really dictated by the parliamentary timetable. However, I believe that the consultation period was adequate and we have had a very large number of helpful consultation responses. The formal consultation period was preceded by work that we did in reviewing the situation, so we were gathering evidence for quite a while before the consultation. There has been a very good opportunity for views to be aired. I am sure that in an ideal world some people would have preferred more time to have been available, but I am not at all convinced that that would have meant any great change or improvement to the responses that we received.

It is fair to say that it is the third sector that has raised most concerns with us. One of the concerns is that a number of bodies within that sector were unaware of the bill or of what it would mean for them, which may partly explain some of their late submissions and the fact that some of them are calling for the bill to be withdrawn. They do not feel that they have been able to offer input and do not have an understanding of how the bill would affect them. What are your views on that?

The Scottish Council for Voluntary Organisations is one of the bodies that has called for the bill to be withdrawn. It made the point that the consultation period was short, and I cannot deny that it was. However, I think that SCVO is substantively concerned about the issues that we spoke about a few minutes ago. I reiterate that I believe that that is based on a misinterpretation. We are still open to dialogue and are very keen to have further dialogue with the voluntary sector and to discuss with it the details of how the bill might operate. For example, we could look at case studies and talk through with the sector how we see the bill working in practice, which will help to allay some of the concerns about the process.

Would there be guidance that included such worked-through examples?

Yes, absolutely. I will be honest and say that we cannot do this ourselves; the keeper of the records will not be able to do this himself or herself. We have to do it collaboratively through dialogue and discussion. There is a lot of good practice out there, but it is not always known across the entire sector. One of the issues will be to ensure that best practice is drawn out from, for example, local authorities and spread around so that all are aware of it. There is very good practice in the voluntary sector, too. Clearly, a lot of good lessons have been learned from the Shaw report and from other difficulties that the sector has had. Our role will be to ensure that it is spread around and that knowledge is widened so that people really understand what is involved.

I have a final question. It is predicted that the financial costs of the bill will be relatively small, but we are in a very tight economic circumstance and lots of other pieces of legislation are hitting local authorities just now, including the Education (Additional Support for Learning) (Scotland) Act 2009 and the Children’s Hearings (Scotland) Act 2010. Might local authorities genuinely feel that trying to get best practice “spread around”, as Mr MacKenzie put it, could actually increase costs?

Overall, it will not. Good records management is not free, but it is cheaper than bad records management or no records management. However, the cost will sometimes take a little bit longer to become evident. The issue is probably that in one or two cases there may be a short-term need for greater expenditure. I am absolutely convinced that that will lead to greater efficiency across the piece and that the sector as a whole will feel the benefits in time. If an organisation is currently fully complying with the freedom of information requirements, the costs of the bill will be virtually nil to it because it already has the infrastructure in place to do what is required. If it is not complying at the moment with FOI, it may have to take steps to do so. However, our very strong feeling is that over the whole of the sector and over a period there will probably be a reduction in overall costs and an improvement in efficiency.

Thank you very much.

Perhaps I can clarify that the reference to complying with FOI is partly a reference to complying with the code of practice on records management under section 61 of the Freedom of Information (Scotland) Act 2002.

Thank you for that, Lindsey. I should have made it clear that when I referred to compliance I meant complying with that code. Organisations that are complying with it are already doing records management well.

Right. Thank you very much indeed for providing evidence this morning.

10:37 Meeting continued in private until 11:24.