The NRS was wrong to deny access to historic records - Information Commissioner

There's been an interesting development with regards to the appalling level of access for researchers to historic records at the National Records of Scotland (www.nrscotland.gov.uk) during the Covid pandemic. 

In mid June 2021, an unnamed applicant, unable to gain access to the NRS site to view some sheriff court records due to the NRS's Covid restrictions, wrote to the archive to ask for access under the Freedom of Information Scotland Act (FOISA). The NRS responded saying that it was unable to do so, citing an exemption under Section 25 of the Act, and advising the applicant that an appointment could be booked to view the records on site. 

Unable to get an appointment due to the restrictions in place, the applicant requested a review of the decision, believing that this FOISA exemption did not apply. In response, the Keeper of the NRS admitted that Section 25 did not in fact apply, but advised that it was not possible to provide access to the records in question as priority was being given to academic researchers only at that point. Copies could not be provided either due to restrictions on the copying services in play. The applicant was advised to basically check back in August when it hoped the archive would re-open access further to some extent from September. 

Unhappy with this response, the applicant wrote to the Information Commissioner, asking for a review under section 47 of the FOISA, challenging the Keeper's reasoning for the decision given. Confirming this to be a valid application, the Commissioner wrote to the Keeper of the NRS advising of an investigation, and inviting comment (as per section 49 of the FOISA). In the NRS response, the Keeper advised that there were seventy FOI cases 'on hold' due to restrictions at the facility during the Covid pandemic, due to "difficulties in securing access to its buildings and the records stored in them". The Keeper also advised that there were other factors such as the fact that access to the the records required consent of the Scottish Courts and Tribunals Service, citing Section 22 of FOISA.

Following the investigation, the Information Commissioner has concluded the following:

The Commissioner finds that the Keeper of the Records of Scotland (the Keeper) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant.

The Commissioner finds that the Keeper failed to comply with section 21(4) and (5) of FOISA, by failing to conduct a compliant review and communicate the outcome to the Applicant. The Commissioner now requires the Keeper to carry out a review (or secure the conduct of such a review, in terms of section 22(4) and (5) of FOISA) meeting the requirements of section 21(4) and notify the Applicant of the outcome (disclosing information or, as appropriate, providing reasons for not doing so) in terms of section 21(5).

The Commissioner requires the Keeper to do this by 31 January 2022.

The deliberations behind these conclusions are noted in paragraphs 15-21, including the fact that "although the Keeper highlighted the challenges of the request being subject to section 22, no indication was given that section 22 had actually been complied with in relation to the request" - and that with regards to the provisions offered under Section 1 (1) of the FOISA, "At the time of the Keeper's review in this case, none of these qualifications appear to have been considered relevant by the Keeper".

The full decision notice is available at https://www.itspublicknowledge.info/ApplicationsandDecisions/Decisions/2021/202100883.aspx, which adds that either party can appeal the decision within 42 days.

COMMENT: What more can be said? I don't know if the NRS has appealed this ruling (and am happy to update this post with the outcome if so), but when you compare the NRS service response to Covid with that of PRONI in Belfast, and TNA down south in London, it has been the difference between night and day. 

There are some great records held at the NRS, and there are some great, dedicated archivists working there - but as an institution, Scotland deserves a much better service provision from those running our taxpayer funded national archive.

Chris

My new book Tracing Your Irish Ancestors Through Land Records is now available to buy at https://bit.ly/IrishLandRecords. Also available - 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. Further news published daily on The Scottish GENES Facebook page, and on Twitter @genesblog.