the s.46 records management code - act now

BCS CERTIFICATE IN FREEDOM OF INFORMATION - DAY 5

© Act Now Training Ltd 2015

BCS FOI Course: Day 5

Records Management CodeRelated Legislation

Welcome

Please help yourself to a drink.

We start at 10am.

Day 5: Course Outline

• Section 46 FOI Code on records management

• Access to historical records• Re Use of Public Sector Information

Regulations• the interaction between FOI and other

legislation• exam technique and pitfalls to avoid.

The S.46 Records Management Code

Ibrahim Hasan

Act Now Training



Status of the Code

• Fulfils Lord Chancellor’s section 46 duty

• Revised in July 2009

• Not legally enforceable

• Information Commissioner must promote the observance of the code

• All records held irrespective of the technology used to create and store them or the type of information they contain. It includes,– paper files – digital records management systems – business and information systems – finance systems– geographical information systems– contents of websites

Code Applies to:

Aims of the Code

• Part 1– To set out the practices which relevant authorities

should follow in relation to the creation, keeping, management and destruction of their records

• Part 2– Provide a framework for the review and transfer of

public records that have been selected for permanent preservation at The National Archives or other places of deposit



All public authorities (part one)

All bodies subject to the Public Records Act 1958 and the Public Records Act (NI) 1923 (part two)

Who has to comply?

THE NINE RM BEST PRACTICE REQUIREMENTS

Organisational Arrangements

Best Practice 5.1.a– Recognition of records management as a

core corporate function – Inclusion of records and information

management in the corporate risk management framework

– A governance framework that includes defined roles and lines of responsibility



Organisational Arrangements (2)

– Clearly defined instructions, applying to staff at all levels of the authority, to create, keep and manage records

– Identification of information and business systems that hold records

– Consideration of records management issues when planning or implementing ICT systems

Organisational Arrangements (3)

– Induction and other training to ensure that all staff are aware of the authority’s records management policies, standards, procedures and guidelines

– An agreed programme for managing records– Provision of the financial and other

resources required to achieve agreed objectives in the records management programme

Records Management Policy

• Best Practice 5.1.

• Authorities should have in place a records management policy, either as a separate policy or as part of a wider information or knowledge management policy



Keeping Records to Meet Corporate Requirements

• Best Practice 5.1.c

• Authorities should ensure they keep the records they will need for business, regulatory, legal and accountability purposes

Records Systems

• Best Practice 5.1.d

• Authorities should keep their records in systems that enable records to be stored and retrieved as necessary

Storage and Maintenance

• Best Practice 5.1.e

• Authorities should know what records they hold and where they are, and should ensure that they remain usable for as long as they are required



Security and Access

• Best Practice 5.1.f

• Authorities should ensure that records are stored securely and that access to them is controlled

Disposal

• Best Practice 5.1.g

• Authorities should define how long they need to keep particular records, should dispose of them when they are no longer needed and should be able to explain why records are no longer held

Collaborative Working Records

• Best Practice 5.1.h

• Authorities should ensure that records shared with other bodies or held on their behalf by other bodies are managed in accordance with the Code



Monitoring and Reporting

• Best Practice 5.1.i

• Authorities should monitor compliance with the Code and assess the overall effectiveness of the programme

Code Part 2

• arrangements which authorities should follow to ensure the timely and effective review and transfer of public records

• facilitate the performance by the Public Record Office, the Public Record Office of Northern Ireland and other public authorities of their functions under FOI

Public Record Bodies

• central government department

• non-departmental public bodies

• the courts

• the armed services

• the National Health Service



Public Records Act 1958

– Established cohesive regulatory framework for public records at the Public Record Office ( The National Archives) and other places of deposit

– transferred responsibility for public records from the Master of the Rolls to the Lord Chancellor

– stipulated that records would be transferred to the Public Record Office 30 years after creation and that most would be opened 50 years after creation reduced to 30 years by the Public Records Act 1967

S.63 FOI – Historical Records

• A record becomes a historical record after 30 years (date of last record on file)

• Historical records cannot be exempted under certain exemptions (see below)

S.28 - Relations within the UK

S.30(1) - Public authority investigation

S.32 - Court proceedings

S.33 - Audit functions

S.35 - Formulation of policy

S.36 - Conduct of public affairs

S.37 (1)(a) - Communication with royal household

S.42 - Legal privilege

S.43 - Commercial confidentiality



After

60 years :

S.37(1)(b) - Honours

100 years :

S.31 - Law enforcement

Constitutional Reform & Governance Act 2010

• Reducing 30 year rule to 20 years• Transitional period commencing 2014• Parallel reduction in lifespan of some

exemptions

• In force 1st Jan 2013 but transitional arrangements start 1st Jan 2014.

From 1/1/14 – 1 year reduction per annum

• Sections 30 • Section 32 • Section 33 • Section 35 • Section 36 • Section 42



FOI Modifications

• In reviewing records for public release authorities should ensure records become available at the earliest possible time

• Consider which records are available for release on transfer as no exemptions apply

• Consider which information are available for release on transfer as exemptions cease to apply after 30 years

• Prepare a schedule identifying the above

Other Legislation

• Local Government Acts

• EU Regulations

• Re Use of PSI Regulations

• Audit Commission Act

Access to Local Government Information



Local Government Transparency Code

• Applies to councils in England only

• Local Government Planning and Land Act 1980

• Schedule 2 legally binding

Data To Release• Expenditure over £500, (including costs, supplier and

transaction information)

• Grants and payments under contract to the voluntary community and social enterprise sector

• Names, budgets and responsibilities of staff paid over £58,200

• Organisational chart

Data To Release (2)

• Members' allowances and expenses• Copies of contracts and tenders• Policies, performance, audits and key

indicators on the authorities' fiscal and financial position

• Data of democratic running of the local authority including the constitution, election results, committee minutes, decision -making processes and records of decisions



Proactive Release

• Data to be supplied in useful formats

• Allow business and others to re use information for commercial and social purposes

• Inherent encouragement of commercial use

Legislation

• Part 5A Local Government Act 1972

• Local Government Act 2000

• Specific Legislation

• DPA, FOI and EIR

Part 5A Local Government Act 1972

• Amended by Local Government (Access to Information ) Act 1985

• Public right to access meetings and documents of council, committees and sub committees

• Exemptions in schedule 12A (amended)

• Members have more rights



Local Government Act 2000

• Apply to executive arrangements

• Specific regulations

• Require public authorities to allow the public access to ‘key decisions’ and ‘forward plans’ and records of executive decisions.

Article

Access to Information in Local Government

http://tinyurl.com/awk7fe9

EU Regulation 1049/2001

• passed on 30th May 2001

• public access to European Parliament, Council and Commission documents

• each institution is required to publish an annual report on the Regulation's implementation



S.15 Audit Commission Act 1998

Veolia v Nottinghamshire County Council and others [2010] EWCA Civ 1214

Wide range of documents covered by ACA

Section 15 subject to confidentiality

Official Secrets Act 1989

• S.1 Offence

• Section 44 Exemption

• http://en.wikipedia.org/wiki/Official_Secrets_Act_1989

The Re-Use of Public Sector Information Regulations

2005



What’s it all about?

• The public sector produce information

• The regulations exist to transform public sector information into a saleable commodity

• The private sector can aggregate, add value or repackage it, and make money out of it

EU Directive (2003/98/EC)

• Harmonise the trade in, and re-use of, public sector information across Europe

• The purpose is to create a European Information Industry to rival the one in the USA (where government information is not subject to copyright)

• The Directive was signed in 2003

• Regs came into force on July 1st 2005

Coverage

• Central Government Departments

• Local Government

• The Police and Fire services

• The National Health Service

• Parliament

THEY DO NOT INCLUDE:

• Schools, universities and educational establishments

• Cultural organisations (e.g. museums and libraries)

• Public Sector broadcasters (e.g. the BBC, Channel 4?)



Power not Duty

• Public sector bodies get power to :– licence and release information for re-use– to place conditions on that use– to charge organisations for re-use

• They must comply if they wish to cite copyright, licensing or re-use conditions

Information

The Directive cites:

• Social information• Economic information• Geographical data*• Weather information• Tourist information• Business information*• Patent information• Educational information

OPSI cite:

• Statistics• Scientific research• Meteorological data• Patent information• Leaflets and forms• Official Records• Census data

Information (2)

• You don’t have to create or adapt information because someone has asked you to

• You don’t have to provide extracts where to do so requires disproportionate effort

• You don’t have to continue to produce something purely because others want to re-use it



Not Information

• Information exempt under FOI

• Disclosures which would breach Data Protection principles

• Information for which someone else holds the copyright

• Information “outside the public task” of the organisation

Summary of Requirements

• An information asset list – electronic, online and searchable

• Internal and external procedures for re-use

• Transparent conditions for re-use

• Clear charging policies

• A level playing-field, ensuring that Re-Use affects everyone equally

Charges

• PAs can charge for the re-use of information

• Charge can include the cost of production and a “reasonable return on investment”

• All charges must be consistent



Procedure

• A request for re-use should be in writing, and in legible, permanent form

• 20 working days to deal with

• Procedure should be published

• Refusals require clear explanation

Licences and Conditions

• Licences can be used to fix how information is re-used

• They must be clear and consistent

• They should not “unnecessarily” restrict the way in which information can be used, or to restrict competition

• You must not discriminate between applicants

• You must not enter into exclusive arrangements unless it is to provide a public service

OPSI’s Role

• There are no penalties for non-compliance

• OPSI have a system of dispute resolution to clear up disagreements and disputes within the re-use framework – unfair conditions, unfair refusals to allow re-use

• There is an appeal to the Advisory Panel on Public Sector Information



Re-Use and FOI

• FOI applies to access – does not permit re use

• Regs designed to encourage re use but no obligation to allow re use

• Your asset list will sit with, or within, your publication scheme

• Your procedures for Re-Use may sit with your FOI request procedure

FOI on EIR

Section 74• Allows for the making of regulations…“for the

purpose of implementing the information provisions of the Aarhus Convention”

Section 39 • Exempts information if the public authority holding

it…“is obliged by regulations under section 74 to make the information available to the public in accordance with the regulations”

FOI Amends DPA

• New type of data

• Unstructured Filing Systems



Which regime applies?Whose information is being requested?

FOI S.40(2) EIR Reg 12 & 13

Own info Third Party Info

FOI S.40(1)EIR Reg 5(3)

DPA S.7

The Exam

Practical Issues

Timetable

Homework

Revision

Exam

Extra Time/Reasonable Adjustments

Complaints



The Exam – Pass Mark 50%

Section A

• 10 Multi-choice questions• Answer all – 1 mark each

Section B

• 8 bullet point/short answer questions• 5 points = 5 marks per question

Section C

• Case Study Compulsory 20 marks• Two further questions 15 marks each

I hear and I forget. I see and I remember.I do and I understand.

Section A

• There’s only one right answer

• Indicate your answer by a filling circle

• Mark only one answer• Rub out a mistake• Answer again



Section B Questions

It asks for bullet point style answers

Don’t write essays

One page maximum

Five lines preferable

ten minutes each

Section C Questions

It asks for essay style answers

Don’t give bullet points

Plan before you start

About 25 minutes each

Exam Technique

Write legibly

Don’t use carpet-bombing

Analyse what the question is about

Plan your answer

Give the answer required

Write legibly



Exam Technique (2)

Plan ahead

Eat a light lunch

Arrive early

Take a few quality pens and a pencil

the s.46 records management code - act now

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