Following the Shaw Report in 2007, the Keeper of the Records of Scotland ("the Keeper") was asked to review the public records legislation in Scotland. The Keeper's review found that poor record keeping practices existed throughout the public sector and made several recommendations to the Scottish government. As a result, the Public Records (Scotland) Act 2011 ("the Act") was created and is set to come into force in January 2013.
What does the Act do?
The Act is aimed at providing a better record keeping framework and procedure for public authorities to use across Scotland.
The Act defines what a public record is, and introduces Record Management Plans ("RMPs") which public authorities will be expected to produce, setting out the procedure for the review, storage and disposal of public records in their area.
How does this affect private and voluntary sector organisations?
Although the Act only directly applies to authorities named within the Act (mostly local authorities & organisations) in reality it has a wider reach, extending to private and voluntary sector organisations. These organisations are brought into the Act's scope through the broad definition given to "public record" which includes records created or held by both authorities and their contractors whilst carrying out the authority's functions.
Much of the work carried out by private and voluntary sector organisations is delivered through contracts with public authorities - meaning all documents they create or hold relating to jobs undertaken for a listed authority will be subject to that authority's RMP.
What should we do?
A forum has been running with stakeholders, the Keeper and the National Records for Scotland ("NRS"), discussing the timetable for enforcement, the form of the RMPs and developing guidance. Whilst the NRS initially aimed to produce a draft model RMP and guidance for consultation at the end of 2011, this was delayed until January 2012 and is now expected to be published for consultation this month (February 2012). The forum intended to have their last meeting in December 2011 however, contractors affected by the legislation (and who have missed the opportunity to be involved in the forum) will still have the opportunity to engage with their local authorities, the Keeper and the NRS, to express their views and contribute to the consultation up until implementation in January 2013. It is hoped that this collaborative approach will reduce the cost and burden placed on organisations.
What if we are in breach of the legislation?
There is still some time before the Act is enforced and the Keeper will also allow a grace period between the Act coming into force and sanctions being imposed.
In any event the powers to enforce the legislation have already been labelled as "light touch". Those in breach may be issued an action notice, and if they fail to comply with this the Keeper's only other power of enforcement is to publicise their failure. However, these powers do not extend to private and voluntary sector organisations and so it is unclear what reprimands those organisations would face (if any). Although there may be a commercial risk that a connection with an authority which is publicly named and shamed negatively impacts on an organisation's reputation, resulting in damage to or dilution of their brand.
For more information:
- Access to Tom Shaw's Report "Historical Abuse Systematic Review" is available here.
- Access to National Archives of Scotland webpage is available here.
- Access to Public Records (Scotland) Act 2011 is available here.
- Access to the National Records of Scotland online forum is available here.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
