Freedom of Information and National Records of Scotland

The Freedom of Information (Scotland) Act 2002 does not refer to National Records of Scotland by name as all rights and responsibilities under the legislation are vested in the office of the Keeper of the Records of Scotland. The Keeper and the Registrar General of Births, Marriages and Deaths for Scotland are both listed in schedule 1 as Scottish public authorities to which the Act applies. These non ministerial departments are held by the Chief Executive of National Records of Scotland. NRS is therefore under the same obligations as any other named authority, but FOISA also places additional responsibilities on the Keeper.

Special provisions relating to NRS

FOISA applies to the corporate information which NRS creates and receives in conduct of its business in the same way as for any other Scottish public authority. However, special provision is made for information contained in archive material which NRS holds on behalf of other authorities covered by FOISA.

Information transferred to the Keeper which he makes available for inspection and, in so far is practicable, copying, is covered by the ‘otherwise accessible’ exemption of FOISA. This information is made available for consultation in the usual way in the NRS search room.

If NRS receives a request for information which has been transferred to the Keeper by a Scottish public authority and which has not been designated as open information for the purposes of the FOISA, the Keeper must send a copy of the request to the transferring authority as soon as possible. The authority must then make a decision about whether or not the information can be released and inform the Keeper, who must in turn inform the applicant. Because of the need to consult the transferring authority NRS is given 30 working days to reply to such requests rather than the usual 20 (see sections 10(2) and 22 of the Act).

NRS has its own statutory fee-setting arrangements and is therefore excluded from the FOISA fees regulations (section 9(7)) when charging for research and copying of archive material. NRS fees and charges are available on this website.

Information transferred from organisations or individuals not subject to the FOISA

Private Records

Information which NRS holds on behalf of organisations or individuals not covered by FOISA (e.g. private companies and private individuals) is not subject to FOISA. If, however this type of information has been either gifted to or purchased by NRS it is not held on behalf of another person or organisation and will be subject to FOISA. Where material has been gifted subject to terms and conditions which seek to limit access to the material, it may be necessary to consider whether the ‘confidentiality’ exemption under section 36 of FOISA applies.

UK Government Records

NRS holds a certain amount of information on behalf of UK Government departments operating in Scotland and on behalf of some cross-border authorities. Where such information has not been designated as open information the UK Freedom of Information Act applies and the Keeper must refer requests to see it to The National Archives (TNA) in London. This is because this material is held by NRS under section 3(8) of the Public Records Act 1958 and section 5(1) of the Public Records (Scotland) Act 1937, which effectively means that they have been transferred to NRS by the UK Keeper of the Public Records. A concordat between the Scottish Government and the Department for Constitutional Affairs sets out how this arrangement works. Information which has been designated as open and is catalogued is deemed ‘otherwise accessible’ and is made available for consultation in the usual way in the NRS search room.

Pre-Devolution Records

NRS holds many pre-devolution records of the former Scottish Office which are subject to the Transfer of Property etc. (Scottish Ministers) Order 1999. Most of the information in these records which has not been designated as open information is subject to FOISA, but a small number of the records were held or used wholly or mainly in connection with the exercise of reserved functions and the information in these is subject to the UK Freedom of Information Act. An agreement between the Scottish Government and the Scotland Office sets out how this arrangement works. Further information can be found in Guidance on the Agreement Between the Scottish Executive and the Scotland Office on Pre-Devolution Records of the Scottish Office.  Information which has been designated as open and is catalogued is deemed ‘otherwise accessible’ and is made available for consultation in the usual way in the NRS search room.