Adequate arrangements must be in place for the management of records created and held by third parties who carry out any functions of the authority.
In line with the Keeper of the Records of Scotland’s (The Keeper’s) obligations under the Public Records (Scotland) Act 2011 (the Act), the following guidance is issued regarding an authority’s obligations to public records being created by third party organisations, when delivering a public function under contract to a public authority scheduled under the Act.
Section 3 of the Act describes the meaning of ‘public records’ for the purposes of the Act. It says that public records in relation to a named authority means records created by, or on behalf of, the authority in carrying out its functions. This is extended to records created by, or on behalf of, a contractor carrying out the authority’s functions, and includes records that have come into the possession of the authority or contractor in carrying out the authority’s functions. Records created or held by a third party contractor, that are not done so in relation to that contractor carrying out a function of the public authority, are not public records under the Act.
It is important to make clear that the Act applies only to named authorities. The Keeper’s authority as regulator of the Act does not extend to private, commercial, charitable or public bodies not named under the Schedule to the Act even if they are delivering the functions of named public authorities. The obligation to ensure that public records being created or held as described above lies entirely with the named authority.
This guidance is therefore designed to help named authorities meet their obligations to those public records being created and held on their behalf, by third parties contracted to supply one or more of their public functions.
It is a fundamental requirement of a records management plan that it can satisfy the Keeper that public records being created or held by third party organisations are being properly managed, in line with the public authority’s records management plan. This will be best achieved by the named authority providing the Keeper with evidence of how it satisfies itself that the third party can meet this requirement.
Evidence
The Keeper will expect to see evidence under an authority’s records management plan of the processes it follows in order to provide it with the necessary assurances that third party organisations, when contracted to deliver a public function on its behalf, can robustly manage the public records it will create and hold as a consequence.
Such evidence would include the contractual paperwork that provides for the arrangement. It could also include policies and procedures created and followed by the authority in the process of running a reliable, transparent and credible procurement procedure.
Procurement guidance for authorities and contractors
This guidance, ‘Records Management Clauses for Contractors’ and the “Guidelines for Contractors’, sets out general good records management practice that all named authorities and third party contractors should consider, before embarking on a procurement exercise - https://www.scottisharchives.org.uk/resources/arms/
Contractual arrangements
Sample documents, regarding contractual arrangements which safeguard public records created and/or held by a third party, might give you an idea of what such a document should include and how it might be styled. Examples of contractual arrangements between a public authority and third party contractor:
File 01. The Service Level Agreement template of the commissioning authority, NHS Ayrshire and Arran, provides an example of a clause which sets out the expectations of the commissioning authority on its third party, in relation to fulfilment of PRSA obligations
File 02. Food Standards Scotland have adopted standard Scottish Government terms and conditions for all contracts.
The template contracts used for whichever function is being contracted, whether for goods or services, clearly set out the arrangements for information and records governance which ensure compliance with the authority’s Records Management Plan
File 03. The Scottish Prison Service have developed minutes of agreement with third party contractors, which set out requirements for compliance with all SPS records management policies and procedures
Policy commitment
The inclusion of third party records in the named authority’s own records management policy would indicate a strategic commitment by the authority to ensure robust records management is extended to third party contractors.
File 04. Dumfries and Galloway Council’s Records Management Policy
Includes a statement establishing the scope and purpose of the policy, which includes specific reference to third parties who create, capture or maintain records relating to council functions
