## Advisory C Ouncil On National Records A Nd Archives

Date: 
 
          18 
 November 
 2019 
 
Time: 
 
          11:00-16:30 
 
Venue: 
 
          Talks Room, The National Archives, Kew 
 
 
Chair: 
 
          Sir Terence Etherton, Master of the Rolls 

                  
Minutes: 
 
          Anne Hardy, Secretary to the Council 


Members: 
 
Mr Trevor Woolley, Deputy Chair 
 
Ms Hillary Bauer, 
 (Deputy Chair of the Forum) 
 

Mr 
 Michael 
 Smyth 
 
Ms Lesley 
 Ferguson 
 
Dr 
 Helen 
 Forde 
 
Lady 
 Moira Andrews 
 
Ms Liz 
 Copper 
 
Mr 
 John Wood 
 
Dr 
 Peter 
 Gooderham 
 
Ms Jeannette Strickland 
 
Mr 
 Martin Howard 
 
Professor 
 Phillip Johnson 
  
Professor 
 Leon 
 Litvack 
  
Ms Helene Pantelli 
  
Mr 
 David Rossington 
 
Mr 
 Martin Uden 
 
 
Non-members: 
  

TNA: 
 
Mr 
 Jeff 
 James, 
 Chief 
 Executive 
 and Keeper 
 
 
Ms Lucy 
 Fletcher, 
 Director for 
 Government 
 
 
Mr 
 Sam Whaley, 
 Head of 
 Strategy 
 and 
 CEO's Office 
 
 
Ms Victoria D
 avis, 
 Senior Access Manager 
  
 
Ms Helen 
 Potter, H
 ead of 
 the 
 Freedom 
 of 
 Information 
 Centre   
 
Ms Anne Hardy, 
 Secretary 
 to the 
 Advisory 
 Council 
  
 
 
DCMS: 
 
Mr Charles Alexander, Lead Non-Executive Director. 



MR's Office: 
 
Mr Samuel Allan, Office of the Master of the Rolls SUMMARY O
 F ACTIONS 
  
 
Actions agreed at the meeting Item 
 2: 
 
 
ACTION: 
 any member who is interested in taking part in the Working Group should contact the 
 
Deputy Chair. 

 
Item 3: 
 
 
ACTION: 
 MOD 
 are to be asked to provide a written update for February. 

  The possibility of inviting 
 
them to the May meeting should also be left open. 

   
 
Item 4: ACTION: 
 members asked that copies of the memorandum and checklists be provided to them in accessible form. Item 5: 
 
 
ACTION: 
 it was agreed that a TNA pa
 
per on the history of the Forum should be circulated to the 
 
wider membership. 

 
 
Item 7 ACTION: 
 the Code of Practice to be included as an item on the agenda for the February 
 2020 
 
meeting. ACTION: 
  an invitation to be extended to the Deputy Chair to attend a meeting of the Code of 
 
Practice Steering Group. ACTION: 
 TNA t o update the retention application/ 
 update templates to reflect the revised retention 
 
criteria. ACTION: 
 the Secretary to make the arrangements for the April file audit exercise. 

 
 
ACTION: 
 files which are potentially of interest for audit purposes should be flagged at the meeting 
 
where the relevant schedule entry is discussed. ACTION: 
 TNA t o consider how best to feed back the audit findings to departments 
 
 
Item 9 ACTION: 
 new members to be phased into the FOI 
 Panel process by the Secretary. 


## Item 10

ACTION: 
 TNA t o provide the Chair with information on the location of the 
 43 Places of Deposit. 

 
Item 11 ACTION: 
 The Deputy Chair and the Secretary will discuss further the idea that, as part of its 
 
continuous improvement work, t he Council invites feedback from departments. 

  
 
ACTION: 
  The Deputy Chair agreed to check the ICO 
 website for Section 
 27 
 guidance and to 
 
circulate it. 

 
 
ACTION: 
 any members who are interested in obtaining or renewing Developed Vetting Security 
 
Clearance should inform the Secretary. 


 1.  
Welcome, 
 introductions, 
 apologies 
 and declarations 
 of 
 conflicts of 
 interest 1.1  The 
 Chair 
 welcomed the 
 attendees, 
 including 
 six 
 new 
 members, 
 who 
 were attending 
 their 
 
first 
 meeting. 1.2 
 
There were apologies from 
 Mr 
 Stephen 
 Hawker, 
 a 
 new 
 member. 
 
 
1.3 
 
The 
 Chair 
 asked 
 members to declare any 
 conflicts of 
 interest 
 which they 
 had identified 
 in 
relation to 
 the 
 business 
 of 
 the 
 meeting. 1.4 
 
The 
 following 
 recusals 
 apply: 


1.4.1 
 Ms Liz 
 Copper 
 is an 
 employee 
 of 
 the 
 BBC, 
 so 
 will 
 not 
 comment 
 on 
 BBC 
 matters. 
 
 
1.4.2 
 Mr 
 Michael 
 Smyth is unable to comment 
 on 
 matters relating to the 
 Chagos 
 Islands 
 and 
Diego Garcia. 2.  
Minutes 
 and 
 matters arising 
 
 
There were no formal minutes to approve, as the September meeting was a training session. A sum
 
mary of the July minutes has been uploaded to the website. 

 
 
Item 
 2.1 - 
 Wash-up following the September training session The Chair invited members to reflect on the September training session, which included 
 
presentations from ICO, FCO 
 and the TNA D
 igital team. Members thought that the sessions went well and were informative, although there were issues with timing, which meant that the session overran. Paper 2.2 
 - 
 Action Log and Paper 2.2.1 - 
 Action Log Updates The Chair went through the most recent updates to the action log. 

  A nu
 
mber of actions were considered as specific agenda items. 

  The most significant of the finalised actions are the 
 
completion of the process of recruitment and the induction of seven new Council members, 
 

six 
 of whom 
 were 
 able to 
 attend the 
 November 
 meeting. 


The 
 Chair 
 also 
 noted 
 that: 2.2.1 
 now 
 that 
 the 
 new 
 members have been 
 appointed, 
 the 
 Council 
 is ready 
 to 
 take 
 on 
 
responsibility 
 for 
 the 
 public interest 
 test 
 for 
 FOI 
 requests under 
 Section 
 65 
 of 
 FOIA, 
 
although 
 the 
 details have 
 yet to 
 be 
 agreed between DCMS an
 
d the 
 Cabinet 
 Office.  It 
 
was noted 
 that 
 currently 
 the 
 Council 
 has 
 no 
 role in 
 considering 
 FOI 
 requests which 
engage 
 Sections 
 23 
 and 
 24 
 of 
 FOIA, 
 which should be reviewed 
 as part 
 of 
 the 
 revision 
 
of 
 the 
 Code 
 of 
 Practice. 2.2.2 
 the 
 Chair 
 would write to 
 the 
 new 
 Secretary 
 of 
 State once he 
 or 
 she 
 is 
 appointed 
following 
 the 
 general 
 election 
 about 
 the 
 proposed 
 delegation 
 to the 
 Council 
 under 
 
section 66 
 of 
 FOIA. 2.3.3 
 there 
 would be merit 
 in reviving 
 the 
 Working Group 
 and anyone interested in 
 joining 
 
was invited 
 to contact 
 the Deputy 
 Chair. 
ACTION: 
 any 
 member 
 who 
 is interested 
 in taking 
 part 
 in the 
 Working 
 Group should 
contact 
 the 
 Deputy 
 Chair. 

## 3. Access To Records Issues

3.1 
 
Four representatives from 
 MOD 
 attended 
 in person 
 to 
 present 
 on 
 two ongoing 
 issues 
 - 
 the 
 
NDA/ 
 AWE 
 records, 
 which have been t
 he 
 subject 
 of 
 previous appearances 
 at 
 the 
 Council, 
 
and the 
 Service Personnel 
 Records (which include the 
 related 
 issue 
 of 
 the 
 Guards papers, 
which was previously 
 discussed at 
 the 
 July 
 meeting). 
   

 

 

 


3.2 
TNA had also clarified the status of "access under review" records. A note had been 
provided to the Chair and Deputy Chair in the first instance. FOI requests for these records could be handled under Section 65 or 66 of FOIA. If the former, there would be no requirement for the Council to consider the public interest in release through panels under such time as the Council took on such responsibility in relation to Section 65 cases more 
generally. 


3.3 
Overall, both members and TNA staff were content with the proposals, although there are residual concerns about timescales. 

 
 
  
 
3.4 
Members had also sought further information about the legal and practical effects of records being temporarily categorised as "access under review" status. TNA noted that a note had been provided to the Chair and Deputy Chair, in the first instance 


3.5 
Members also reiterated the need for the media group to be prepared to handle any media interest, as per the action log. 

 
 
ACTION: MOD are to be asked to provide a written update for February. The possibility of inviting them to the May meeting should also be left open. 


 

3.6 
 
The 
 department 
 had 
 sought 
 retentions in respect 
 of 
 both the 
 guards and the service 
personnel 
 records. 

## 4. Access To Records

4.1 
 
There were no further 
 recusals. 
General 4.2 
 
A sche
 
dule of 
 closure applications, together 
 with a schedule of 
 retention 
 applications, was 
sent 
 to members 
 prior 
 to 
 the 
 meeting. 
  Members were asked 
 to 
 raise 
 any 
 queries within 10 
days. 4.3 
 
The 
 Senior Access Manager 
 collated 
 the 
 queries 
 and a 
 list 
 of 
 them 
 was circulated with the 
 
papers for 
 this 
 meeting, 
 with responses being 
 provided, 
 where possible.   
 
4.4 
 
At 
 the 
 meeting, 
 members were asked 
 if 
 they 
 were content 
 with the 
 responses provided, 
whether 
 in written 
 form 
 or 
 orally. 
  Where a 
 response had not 
 been 
 provided, or 
 members 
 
remained unhappy, 
 the 
 queries were carried 
 forward. 4.5 
 
The 
 Council 
 formally 
 approved 
 the 
 acceptance 
 of 
 schedules seen outside 
 the 
 meeting, 
 with 
the 
 exception 
 of 
 any 
 queries which were 
 brought 
 to the 
 meeting. 

## Outstanding Queries

4.6 
 
Paper 4.1 
 Queries 
 outstanding 
 from 
 remote 
 schedule 


The 
 Council 
 was content 
 to 
 approve the 
 applications on 
 the 
 basis of 
 the 
 clarification or 
 
additional 
 information 
 provided by 
 the 
 departments, 
 as more fully 
 described 
 in the 
 Annex 
 to 
these minutes. 4.7 
 
Paper 4.2 
 - 
 Queries on 
 Closure and Retention 
 Schedules (July 
 2019) 

 
 
 
The 
 Council 
 was content 
 to 
 approve the 
 applications on 
 the 
 basis of 
 the 
 clarification or 
 
additional 
 information 
 provided by 
 the 
 departments, 
 as more fully 
 described in 
 the 
 Annex 
 to 
these minutes. 
  
 

## 4.8 Paper 4.3 - Queries On Closure And Retention Schedules (November And September 2019)



The Council was content to approve the applications on the basis of the clarification or additional information provided by the departments, as more fully described in the Annex to these minutes. 

  
 
  

4.9 
Other discussion points 


ACTION: members asked that copies of the memorandum and checklists be provided to them in accessible form. 

 


 


5. 
Forum Update (NB: this item took place after item 6 as the meeting was running 
slightly late) 

 

 

 

  


5.1 
The Chair noted that he had chaired the full Forum meeting on 22 September 2019. The meeting was combined with the September training session, so three Council members who 
are not also members of the Forum attended. The meeting focussed on a new strategy and action plan for the Forum, which will be discussed further at its next meeting, which is to be held on 11 December. The need to do a skills audit of members was also identified and this is in hand. It has also been suggested that members convene by teleconference if necessary between meetings. 
 
   

 


5.2 
The Chair noted that it was a useful session and that he had learned more about the Forum and its role as a sub-committee of the Council. 

   
 
  
 
  


ACTION: it was agreed that a TNA paper on the history of the Forum should be circulated to the wider membership. 


 

 


5.3 
The Deputy Chair of the Forum then presented her update. She noted that role of the Council in advising the Historical Manuscripts Commission on Acceptance in Lieu cases. She said the Forum would like to be more actively involved in issues of concern to the archives and academic communities relating to non-government archives. 

 

 
5.4 
It was noted that TNA also undertakes a lot of activity in these areas and that it sometimes 
does so "behind the scenes". 

 


5.5 
In addition, a symposium to celebrate HMC 150 took place on 14 October. The Deputy Chair of the Forum acted as a panel member for this. 


LUNCH was provided. 

## 6. Mps Presentation



6.1 
MPS representatives attended in person further to their July retention application, as the Council had requested further information. 

  

 
6.2 
The departmental attendees described ongoing efforts to address the review backlog. This largely consists of paper files, but there is some digital material. 

  
6.3 
The department noted that it was happy to provide regular updates to the Council. 


6.4 
It also noted that the problem is finite, as MPS records produced after March 2000 are no longer public records for the purposes of the Public Records Act 1958. 

 


DECISION: it was noted that the current retentions expire in 2020, so members asked that the department provide a written update in May 2020. 


 

## 7. Administrative Matters



This section dealt with ongoing administrative and process matters which have arisen, largely from the ongoing work of the Working Group, but also from the September training session. 

   

## Item 7.1.1 - Section 46 Code Of Practice Review



The Director for Government Audience gave a short oral update on progress on the Code of Practice review, for information. She explained the background to and purpose of the Code and noted that the last review was in 2009, so an update is needed, not least to reflect the move to digital records. The process is taking some time, as there is an obligation to consult with statutory stakeholders, such as Cabinet Office and the Office of the Information Commissioner (ICO). 

 
  

  


It was also agreed that an invitation would be extended to the Deputy Chair to attend a meeting of the Steering Group which was planned for January. A copy of the near-final draft of the Code should be available after this meeting and will be circulated to members. 



ACTION: the Code of Practice to be included as an item on the agenda for the February 
2020 meeting. 


 


ACTION: an invitation to be extended to the Deputy Chair to attend a meeting of the Steering Group. 


 


The following three items were briefly introduced by Ms Lucy Fletcher. They had all previously been presented to the Council so were approved. The need to update the templates to reflect the revised retention criteria was noted, though. 



ACTION: TNA to update the retention application/ update templates to reflect the revised retention criteria. 


## Paper 7.1.2 - Revised Retention Criteria

This is a proposed retirement of criteria 3.5 and 7. 


## Paper 7.1.3A - Revised Retention Application Template


 

 


This is a further update on a proposed simplification and standardisation by TNA of the template used by departments when making retention applications. Innovations include a new system of drop-down menu options; a new section on "context" and more information on required timescales. 


## Paper 7.1.3B - Revised Update Template


 


This is a proposed simplification and standardisation by TNA of the template used by departments when providing updates. This was specifically requested by members, to include a red/amber/ green status; an indication of milestones achieved to date and a detailed justification for any application of over three years' duration. 


  


A suggestion that departments should have an additional field where they could propose an update date was rejected, after discussion. 


## Paper 7.1.4 - The Journey Of The File



This paper summarised a presentation which was due to be included in the September training session. However, this had to be deferred because of timing issues. Members 

 
   

 
 
 
thought it a useful and insightful document and recommended that this it be included in TNA 
standard guidance, if possible. 

 
  

## Paper 7.1.5 - October File Audit Report


 
 
A panel of three Council members attended at TNA premises on 31 October to conduct a review of transferred files. This followed on from a similar process in April. The purpose of these sessions is to compare the closure schedule entries for various items with the closed extract(s) which are eventually transferred to TNA and to check for anomalies. A member of the review panel presented the findings and there was a discussion as to how feedback on these could be provided to TNA and departments. All participants agreed that it had been a useful exercise. They noted that: 
 
  

 

 

 
  


-
Some derogatory comments did not in practice seem a good basis for withholding information. However, it was thought that this issue had been addressed to an extent by the current practice of members asking for details of the particular comments relied on. 


-
There was one instance where there seemed to be a cataloguing error. 


-
On one file, some comments were erroneously cited as legal opinion. 

 

They also noted some practical points, such as the need to select a number of files for review, due to the risk that selected items might be unavailable. A suggestion that audits could perhaps be held quarterly was rejected on resourcing grounds. 


 


ACTION: the Secretary to make the arrangements for the April file audit exercise. 



ACTION: files which are potentially of interest for audit purposes should be flagged at the meeting where the relevant schedule entry is discussed. 



ACTION: TNA to consider how best to feed back the audit findings to departments. 

 

## Paper 7.1.6 - Ico Decision


 
 
  
 
  

 

 


An FOI request relating to the Denning papers which the Council received last year went to Internal Review and was subsequently the subject of an appeal to the ICO. The decision is now available. It upholds the Council's position, although a couple of technical points were raised and the delay in responding were noted. No further action is to be taken. The Secretary confirmed that the Council's processes have been reviewed as a result of this request and are now more streamlined. 


## 8. Departmental Retention Requests


  

 


Twenty-eight papers were submitted for consideration at the meeting. It was therefore agreed, in line with the process used at the February session, that that the applications from Arm's Length Bodies should be dealt with out of committee, with members noting in advance any papers which they would specifically like to discuss during the session and the rest to go forward to the Secretary of State. The Council considered papers from departments relating to the retention of records. In addition, a number of departments had provided updates, further to requests from members made at previous meetings. 


  


The Council's decisions made in respect of each paper are noted below. Any resulting approval recommendations then go forward to the Secretary of State. 



ACTION: The Head of Governance will write to departments to notify them of the Council's recommendations, including any which will go forward to the Secretary of State with regard to their retention requests. 



There were applications for retentions of between one and six years from the following departments: 

 


 Department for Business, Energy and Industrial Strategy 
 Department for the Environment, Food and Rural Affairs  Department for International Relations  Department for Transport  Department of Work and Pensions 
 Department for Education  Foreign and Commonwealth Office  Department of Health and Social Care  HM Treasury  Home Office  Ministry for Housing Communities and Local Government  Ministry of Justice  Northern Ireland Office  Cabinet Office 


There were applications for retentions of between two and three years from the following arm's length bodies: 

 
Crown Prosecution Service 
 
 
 
Medicines and Healthcare products Regulatory Agency 


 
Competition and Markets Authority 


Updates were received from the following departments: 

 
The Charity Commission 


 
HM Revenue and Customs 

## 9. Foi Panel Update - Paper 9

  

  

 


9.1 
The Head of the FOI Centre gave an overview of the issues and work undertaken by panels. She also presented the most recent service statistics. She also noted three recent issues: redaction of records; application of Section 27 and application of Section 38. She highlighted work to update FOI guidance, notably on Section 40. The Section 38 guidance is in progress and should be available shortly. 


9.2 
The continued high volume of cases was also noted, as were ongoing staffing issues. 

  


9.3 
There is an intention to phase the new members into the Panel process on the basis that there will be one of them per panel, and that they will not act as the Panel Chair until they have gained some experience of the process. 


ACTION: new members to be phased into the FOI Panel process by the Secretary. 

## 10. Ceo'S Update - Paper 9

10.1 TNA's CEO gave his update on current issues and ongoing matters. He noted progress with 

 

 


the National Archives Trust and the planned relaunch of the Discovering Collections, Discovering Communities conference, as well as new grant funding which has been announced. He also covered the HMC 150 celebrations and his tour of regional archives. The Chair asked if he could be provided with information on the location of the 43 Places of Deposit. 



ACTION: TNA to provide the Chair with information on the location of the 43 Places of Deposit. 

 

10.2 He also noted the work of TNA's legislation team, which as part of the CEO's role as the 

 


Queen's Printer, is currently ensuring that the online legal database legislation.gov.uk is preparing all the legislation ready for Brexit. The Chair noted his admiration for the work of this team. 

 

## 11. Any Other Business

                                                                  
11.1 It was agreed that any of the new (or indeed the existing) members who are interested in 
  

 
obtaining or renewing Developed Vetting Security Clearance should inform the Secretary. 

 


ACTION: any members who are interested in obtaining or renewing Developed Vetting Security Clearance should inform the Secretary. 


 11.2 When asked for feedback on their first meeting, new members said that there had been a lot 

 

 
  

 

 


of business to get through and a lot to take in, but that it had been a very interesting session. They thought that the Schedules process was perhaps a bit unwieldy (although longerstanding members noted that the process had actually become more streamlined and less paper-intensive than it had been previously). The new members also noted their approval of the new remuneration arrangements. 


 


It was suggested that as part of its continuous improvement work, the Council could invite feedback from stakeholders. The Deputy Chair and the Secretary agreed to discuss this further. 



ACTION: the Deputy Chair and the Secretary will discuss further the idea that, as part of its 
continuous improvement work, the Council invites feedback from departments. 

 
 
 
It was noted that there is guidance on Section 27 (which had come up a few times in discussions) on the ICO website. 
 
  


ACTION: The Deputy Chair agreed to check the ICO website for Section 27 guidance and 
to circulate it. 


11.3 There being no further business, the meeting was closed. 


Date of Next Meeting: The next meeting of the Council was to be held on: **10 February 2020,** at TNA premises.