More on the legal proceedings by Ancestry against the National Records of Scotland

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:

• Scottish Census Records 1841-1911
• Statutory (Civil Registers): Births (1855 – 1921), Marriages (1855 – 1946) and Deaths (1855 – 1971)
• Old Parochial Registers: Births and Baptisms (1538-1854), Banns and Marriages (1538-1854), Deaths and Burials (1538 to 1854)
• Low Churches/Dissenters Parish: Births and Baptisms (1746-1921), Banns and Marriages (1746-1946), Deaths and Burials (1746-1971)
• Valuation Rolls (1855-1940)
• Wills: Wills & Testaments (1513-1925), Soldiers’ Wills (1857-1965)
• Prison Registers (1867-1879)
• Photographs: images taken from medieval documents and photographs (18th and 19th century)
• Public Register of All Arms and Bearings in Scotland: Coats of Arms (1672-1921)
• Military Service Appeals Tribunal records (1916-1918).

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

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