On Friday 26th September I blogged a
piece about the legal challenge by Ancestry (www.ancestry.com) to try to force the
National Records of Scotland (www.nrscotland.gov.uk) to grant it access to many of the
records available on ScotlandsPeople (see Ancestry and the NRS - When
the Corporate Genealogy World Turns Ugly https://scottishgenes.blogspot.com/2025/09/ancestry-and-nrs-when-corporate.html).
It's the most read blog post on this site in over a year, and indeed
commented on, so thanks to all who have taken the time to do so.
I have now had a chance to read the
legal arguments and judgment over the case from Judge Foss of the
General Regulatory Chamber in London, published on September 10th
2025, which you can find at
https://caselaw.nationalarchives.gov.uk/ukftt/grc/2025/1088. It took
me an hour and half to plough through, and there is a lot of legalese
within it! But it is an interesting document for many reasons, not
just with regards to the issues at point themselves, but with regards
to some background information concerning the NRS in recent years, as
well as Ancestry's extraordinary points made whilst contesting the
case. I'll summarise some of these, and include the relevant paragraph numbers in
the submission in brackets where relevant, should you wish to read more on them.
Ancestry is seeking to be granted
access to NRS digital records and indexes on the basis of the Open
Government Licence v3, as facilitated by the Re-use of Public Sector
Information (RPSI) Regulations 2015, “to grant a worldwide,
royalty-free, perpetual, non-exclusive licence to: copy, publish,
distribute and transmit the relevant information; adapt the
information; and exploit the information commercially and
non-commercially for example, by combining it with other information
or by including it in the licensee’s own product or application”
(para 14). The records sought are:
Ancestry later added the 1921 Scottish
census to this wish-list. It noted that all of the information requested is to be
“re-used” to “carry out genealogical research as part of (its)
genealogy technology offering” (para 16) I've put "re-use" in inverted commas for a reason, as it is fundamental to what is going on here.
The NRS refused Ancestry's approach on
2 December 2022. Ancestry lodged a complaint with the NRS on 4 May
2023, stating that it failed to comply with the RPSI (para 20). Amongst the
complaints made was that the NRS was being discriminatory with
regards to its interpretation of the RPSI, not least because it had
already previously provided access to records for FamilySearch. NRS
had also claimed some of the records had third party intellectual
property rights, i.e. it didn't have the sole right to grant access
to them; Ancestry asked for a clarification on this (the NRS and
Ancestry later agreed a revised list on this basis for the ongoing
proceedings).
The NRS rejected Ancestry's complaint
on 21 June 2023, stating that any arrangements it had with other
parties were not exclusive, and that even if there had been such
arrangements, this didn't mean that it had to make information
similarly available to other parties (it was also pointed out in
later proceedings that the agreements with FamilySearch preceded the
RPSI legislation, some of it from 64 years ago - see below).
NRS also said that Ancestry's attempts
to justify a “re-use” of the info were not based on how that term
has been defined in the relevant RPSI legislations from 2005 and
2015, which is defined as “for a purpose other than the initial
purpose within that public sector body's public task for which the
document was produced”. It noted that Ancestry's intent for the
material was not for a purpose “other than the initial purpose
within [NRS’s] public task [to collect, preserve and produce
information about Scotland's people and history and make it available
to inform current and future generations], for which [it] was
produced” (para 28). Bottom line, it was alleging that Ancestry
wanted the info for the same reason that the NRS was using it, so it
wasn't a “re-use”.
Ancestry appealed to the Information
Commissioner on 2 August 2023. In 2024 submissions were made to the
Commissioner by both Ancestry and the NRS (paras 29-32). The
Commissioner found in favour of the NRS, although the Tribunal was later criticial that a lot of reasoning for this was not expanded upon in the decision notice.
On the back of this Ancestry appealed
the Commissioner's findings on 28 May 2024 at a Tribunal of the
General Regulatory Chamber (https://www.gov.uk/courts-tribunals/first-tier-tribunal-general-regulatory-chamber) in London, a UK body which decides appeals
from regulatory bodies across a diverse range of jurisdictions.
Ancestry claimed that the NRS's refusal was unlawful, not least
because it stated that the NRS had not interpreted RPSI correctly,
that the NRS did not adhere to Guidance on the implementation of
the Re-use of Public Sector Information Regulations 2015,
published by The National Archives (i.e. TNA, based in England), and
that it had entered previously into an exclusive arrangement with
FamilySearch.
There is then a LENGTHY (it took me an
hour to read!) analysis of the legal arguments involved from
Ancestry, the NRS and the Information Commissioner, as well as the
Tribunal's own team. Along the way, there was a discussion on the
definition and validity of the use of the term “re-use” by the RPSI, the
NRS's relationship in the past with FamilySearch, the NRS's reliance
on finances from ScotlandsPeople, and much more.
Appearing as witnesses for the NRS were
Dr. Janet Egdell, who at the time of her appearance was Interim Chief
Executive of NRS (Registrar General and Keeper of the Records of
Scotland) and Linda Sinclair, Director of Corporate Services and
Accountable Officer at NRS. For Ancestry, Quinton Atkinson, Senior
Director of Global Content Acquisition, made an appearance as a
witness. Ancestry detailed its case in paras 77-85, the NRS from
paras 86-101.
There were some interesting points
discussed.
NRS, for example, pointed out that
Ancestry has had access to TNA and GRO records from England and
Wales, but with the GRO records it only has the indexes, whilst its
access to census records was partly as a result of Ancestry
investing in their digitisation in partnership with TNA; this
contrasts with Ancestry's demands for the statutory BMD records and
censuses from Scotland.
Ancestry did say that it could
compensate NRS for access to the records, but did not quantify by how
much, nor how this could be calculated.
NRS also noted that it could lose
£3.7 million a year in revenue (based on the average income over
the last six years), although it did admit that it had not
calculated how this might be offset by any income from Ancestry if access was granted. However, NRS did also note that there would be
significant additional costs to it if Ancestry was successful, not
just in staffing costs for the initial transfer of the records, but
also on an ongoing basis, for example with annual updates of records releases.
Paragraphs 89-91 provide some
interesting details on recent ScotlandsPeople activity:
89. We were shown NRS’s audited
financial statements for the year ended 31 March 2024... The
statements indicate that in 2023-2024, NRS had 993,000 users on
ScotlandsPeople (1,484,852 in 2022-2023), resulting in a total of
7,094,000 sessions and 85,000,000 page views, and that NRS had added
around 300,000 new images to the records available on ScotlandsPeople
(385,000 in 2022-2023).
90. Ms Sinclair explained that NRS
is funded by the Scottish Government and by the income generated from
ScotlandsPeople, the latter intended to be reinvested in the delivery
of public services. She demonstrated by reference to NRS’s 31 March
2024 financial statements that in that financial period, NRS had
suffered a shortfall of £0.6 million; the difference between income
of £4.361 million deriving from charges set by secondary legislation
for accessing the information on ScotlandsPeople, and the operational
cost of ScotlandsPeople in the sum of £4.994 million.
91. The comparable figures for the
year ended 31 March 2023 were income received of £5.129 million and
operational cost of £4.782 million, delivering a surplus of
£347,000.
This in part helps to explain why NRS
believes Ancestry's bid is hostile to its future public sector
purpose and revenue raising (although the Tribunal responded that
NRS's claims that it could lose £3.7 million a year were
hypothetical, as no real modelling had been carried out into this
number, or any impact if Ancestry was successful in its bid). NRS
also noted that its recent move of its material from its own domestic
servers to cloud based storage (which caused all sorts of grief for
users when it first occurred) cost the archive £560,000 to
implement, and took 11 months to do so.
Paragraph 99 also noted NRS concerns on
this being set as a form of precedent:
99. Ms
Sinclair’s evidence was that the scope for future requests for
re-use could be vast, noting that there are 1800 organisations
registered with the Community Archive and Heritage Group of the
Archives and Records Association (UK and Ireland), 32 local
authorities and trusts in Scotland and 10-15 large commercial
genealogy website providers. Compliance with other requests would
entail: the initial transfer of the information; ensuring, where
necessary, the ongoing application of any relevant security and
information governance standards to the information; the potential
for enquiries back to NRS in relation to correction or amendment of
the information; and establishing appropriate charges under RPSI to
cover a reasonable return on investment, direct, indirect and
overhead costs.
Ultimately the Tribunal made two
findings in this appeal:
278. The Tribunal finds that the
Request was a request for re-use within the meaning of RPSI. To that
extent, the Decision Notice is not in accordance with the law, and to
that extent the Appeal must be allowed.
This basically means that Ancestry was
right to claim that its intended re-use of the NRS material was indeed within the definition of the RPSI.
279. The Tribunal finds that NRS’s
exercise of its discretion to refuse the Request was not in breach of
any requirement of RPSI. To that extent the Decision Notice is in
accordance with the law, and the Appeal must be dismissed. To the
extent that the Appellant relies on alleged infringements of public
law in support of its Grounds of Appeal, those parts of the
proceedings are struck out under Rule 8(2) of the Tribunal Rules.
In other words, the NRS did have a
right to refuse Ancestry's request, because “Regulation
7(2) provides that a library, museum or archive holding intellectual
property rights in a document may (my emphasis) permit re-use of that document”. 'May' also implies 'may not', and the NRS indeed had a
lawful right to exercise its own discretion under RPSI to refuse the
request, as provided for currently within statute.
With regards to future actions, the
Tribunal noted that it had no powers to rule on what it termed a
“public law challenge”, in this case whether the
NRS should actually have a right in the first place to exercise discretion to refuse the
request made by Ancestry. "We do not consider that the Tribunal has
jurisdiction to determine the lawfulness in public law terms of NRS’s
refusal of the Request" (para 271). Hence why there is likely to be a new
action by Ancestry.
So that's the
background to it all, but you can read the whole thing for yourself - just have a flask of coffee handy when you do, it is very long! And
on the basis of what you read, you can come to a judgement about
whether Ancestry is right to pursue the actions that it has so far
taken.
I can't say that
I have changed my mind on it.
Incidentally, with regards to FamilySearch's
relationship in the past with the NRS, there was a detailed list of
past agreements which may be of interest, summarised as follows:
- 1951: agreement to microfilm old
parochial registers and early Census records of Scotland
- 1989: agreement to microfilm the Old
Parochial Registers of Scotland, 1553-1854, producing a set of fully
indexed data on computer output microfiche of the registers of
baptisms, births and marriages for 1553 – 1854
- 1989: 2nd agreement to microfilm the
old parochial registers of the Church of Scotland, 1553-1854, the
Scottish statutory registers of births, deaths and marriages,
1855-75, 1991 and 1891, the Annual Indexes to the statutory
registers, 1855 – 1959, miscellaneous minor records, to 19th
century and Scottish Census returns, 1841-1891, information from
which could be added to its International Genealogical Index (the
IGI).
- 1993: agreement to microfilm the 1881
Scottish Census Returns
- 1999: agreement to provide GSU
personnel to a third party provider to digitise and index certain
testamentary papers and wills of Scotland from 1500 – 1875 (I
assume this was the Scottish Documents project)
- 2003: agreement to digitise the Kirk
Sessions Records.
- 2006: agreement for the digitisation of
the registers of Sasines, 1573-1901.
An interesting comment in paragraph 211
is that the NRS claims it is investigating the appearance of certain
Scottish census records on the FamilySearch platform (the terms of the agreements note the microfilmed records are for use by LDS members only).
Chris
Order Researching Ancestral Crisis in Ireland in the UK at https://bit.ly/4jJWSEh. Also available -Tracing Your Belfast Ancestors, Tracing Your Irish Ancestors Through Land Records, Sharing Your Family History Online, Tracing Your Scottish Family History on the Internet, Tracing Your Irish Family History on the Internet (2nd ed), and Tracing Your Scottish Ancestry Through Church and State Records - to purchase, please visit https://bit.ly/ChrisPatonPSbooks. For purchase in tthe USA visit https://www.penandswordbooks.com. Further news published daily on The Scottish GENES Facebook page.
