## Annex B Advisory Council On National Records And Archives 16Th Annual Report 2018-19

To the Right Honourable Jeremy Wright, QC, Secretary of State for Digital, Culture, Media and Sport ('**DCMS**'). 

## Part One - Executive Summary Background

The Advisory Council on National Records and Archives (the '**Council**') is an independent advisory body, created under the Public Records Act 1958 and exercising statutory functions under that Act. It advises the Secretary of State for Digital, Culture, Media and Sport (the '**Secretary of State**') on issues relating to access to public records. It also carries out duties under the Freedom of Information Act 2000. 

Through its sub-committee, the Forum on Historical Manuscripts and Academic Research (the '**Forum**'), the Council also advises the Chief Executive of The National Archives and Keeper of Public Records on matters relating to private (non-governmental) archives outside the public records system. 

The Council's and the Forum's respective remits are described in more detail in **Annex A** and membership details are included in **Annex B**. 

## Highlights For 2018-19

It has been another busy year for the Council, not least because there has been a fall in the number of members at a time when the Council's workload is still at a historically high level. One member, Ms Angela Kelly, resigned in September 2018 and two others, Sir John Ramsden and Dr Elizabeth Lomas, retired during the period. This meant that the membership at 31 March 2019 stood at ten, compared with 13 at 31 March 2018, and a maximum permitted membership of 18. However, a new recruitment process commenced on 11 March 2019, with a final closing date for applications of 29 April 2019. The response to this was encouraging even though the final outcome was not known at the date of this report. 

 

The Council: 
 

 
held four meetings, plus one training session in 2018-19; and 
 
dealt with **5,843** closure and 970 retention requests.  
 
In total, this represents a **decrease** in the volume of requests **of 8%** compared with 2017-18, but an increase of 35% compared with 2014-15. 

The Council also dealt with 440 cases under the Freedom of Information Act ('**FOIA**') in the financial year 2018-19, with 26 FOIA panels taking place.   

The Council also dealt with one FOIA request which was made directly to it and handled the subsequent internal review process. 

The Working Group, led by Mr Trevor Woolley, the Deputy Chair, continued to look at ways to improve the Council's efficiency and effectiveness. Building on the excellent work which was started in 2017, it has implemented various improvements to the Council's processes and procedures, including, most recently, a new mechanism for dealing with unresolved disagreements with departments and a quality assurance review process. It has also prepared an initial submission from the Council to DCMS in relation to the proposed revision of the Code of Practice (under s.46 of the Freedom of Information Act). 

 

## Part Two - The Advisory Council'S Work In 2018-19 Meetings

The Council has held four meetings in the period since the last annual report: in May, July and November 2018 and in February 2019, together with a successful training event for members in September 2018. Council meetings were attended by members, as well as by Jeff James, The National Archives' Chief Executive and Keeper of Public Records. Other representatives from The National Archives who possess particular expertise relating to the issues considered by the Council also participated, as necessary. 

Departmental representatives may also attend meetings to present their submissions, by invitation. The Animal Plant and Health Agency and Cabinet Office both attended meetings during the year and the Foreign and Commonwealth Office gave an illuminating presentation to the September training session on their processes and procedures for records selection. 

## The Advisory Council'S Procedures And Processes

During the course of the year, the Council has continued to implement changes designed to enhance its efficiency and effectiveness, following up on the recommendations made by its Working Group. The most significant of these has been to introduce a sample review of files which the Council had agreed, on the basis of departmental submissions, to transfer as closed to The National Archives. This process is designed to provide assurance to the Council that departmental summaries of the records they recommend to the Council for closure are fair and accurate. The first such review took place in April 2019 and the findings were presented to the May 2019 meeting of the Advisory Council. This and subsequent reviews will inform feedback to departments on best practice in preparing submissions to the Council.  

It is also hoped that a number of the recommendations made by the Working Group will be reflected in a revised Code of Practice under s.46 of FOIA, which, at the date of publication of this report, was still the subject of a consultation exercise. As part of its recommendations, the Council is seeking to codify that its responsibilities are limited to advising on the balance of the public interest in the release or closure of records and do not encompass the provision of advice on the use of FOIA exemptions which are not subject to a public interest test ('**absolute exemptions**').  

## Engagement With Dcms

The Chair and the Secretary of State met in January 2019 to discuss the Council's key priorities and the challenges it faces over the next 12 months. Items on the agenda for the meeting included recruitment, remuneration and the Code of Practice review. I am pleased to note that progress has since been made in all these areas. Lord Ashton from the Department for Digital, Culture, Media and Sport also attended this meeting, as well as the July Council meeting, as an observer.   

A tailored review of the Council's functions was planned by DCMS for 2019 but I understand that the date for this is likely to be postponed while preparations for the UK's exit from the European Union are still underway. 

## Engagement With Departments

Staff from the Animal Plant and Health Agency ('**APHA'**) attended the November meeting to present further information to members on a substantial retention submission that it had made. Cabinet Office staff also appeared at that meeting, to discuss procedural issues under FOIA which the Working Group had identified.   

Following agreement during the previous period that some records being reviewed for transfer would need to take into account the negotiations for exiting the European Union, a memorandum on the UK's exit-related considerations was delivered by the Department for Exiting the European Union to the May 2018 meeting and was approved, with a minor revision. Other memoranda, which provide advice on handling of common issues, were updated during the period, notably from the Foreign and Commonwealth Office. 

 
The Council received retention applications during the period from the Foreign and Commonwealth Office; Ministry of Defence; Cabinet Office and the Prime Minister's Office (the bulk of the applications), as well as from the Home Office; the Department for Transport; the Department for Health and Social Care; the Crown Prosecution Service; Her Majesty's Revenue and Customs; the Ministry of Justice; the Attorney General's Office; Highways England; Natural Resources Wales; the Government Actuary's Department; the Department for Education; the Defence Geographic Centre; the Department for Environment, Food and Rural Affairs; the Department for Digital, Culture, Media and Sport; the Department for Business, Energy and Industrial Strategy and some from the Northern Ireland Office and Welsh Government.  

 
A large proportion of retention requests are made for security reasons, with smaller numbers of technical records retained for business reasons, or because they are relevant to ongoing public inquiries. Applications which are not queried go forward for approval by the Secretary of State, by means of a Retention Instrument. 

 
The Council also considers at its meetings submissions from departments relating to the management of review backlogs or where retention is sought for administrative purposes, in relation to documents which are not selected for permanent preservation. A smaller number of cases relate to records which have been selected for permanent preservation. The Council received such retention applications from the Animal and Plant Health Agency; the Attorney General's Office; the Cabinet Office; the Charity Commission; Companies House; Defence Geographic Centre; the Department for Education; the Department for Health and Social Care; the Department for Transport; the Department for Work and Pensions; the Department for Environment, Food and Rural Affairs; the Foreign and Commonwealth Office; HM Treasury; the Home Office; the Ministry of Housing, Communities, and Local Government; the Ministry of Justice; Northern Ireland Office; 
Natural Resources Wales and The National Archives.  Some departments made more than one application during the period. Generally, a period of one or two years was sought. In a small number of cases, three or even four years was requested. 

 
The outcome of these applications was as follows: 

 
For 12 of these requests, the Council was content to recommend to the Secretary of State that permission be given to the relevant organisation to retain its legacy records for the period requested. 
 
In four cases, the relevant organisation was asked to provide further information regarding key project dates and resources before a recommendation to the Secretary of State could be made. One organisation was also asked to attend the relevant Council meeting in person to provide further detail. 
 
In three cases, the recommendation was that the department be granted a lesser retention period, but that it be invited to reapply for a longer period in due course, if necessary. 
 
In the remaining cases, the Council was content to recommend the retention but asked for further updates to be provided, to ensure that departmental records management projects remained on track.  One of these organisations was requested to attend the relevant meeting in person to give further detail. 
The Council also considered updated papers from HM Land Registry; the Foreign and Commonwealth Office; the Charity Commission; Cabinet Office; the Department for Education; the Ministry of Justice; the Attorney General's Office; HMRC and the Ministry of Defence. 

In February 2019, an update was also provided by the Ministry of Defence on its plans for the transfer of military service personnel records from the early part of the last century. Further detail was requested by the Council. At the same meeting, the Ministry of Defence, in conjunction with another organisation asked for a number of files held at The National Archives to be given the status of 'access under review'. The Council asked for further information on the review process involved and a plan for reviewing the records. The matter was still ongoing at the date of this report, so further detail on it will be provided in the next financial year. 


## Access To Public Records Closure Of Records Under The Freedom Of Information Act Metrics

Key metrics for the period are set out in **Appendix C**. 

Process 
 
Given the very large volume of applications placed before it, the Council works on the basis of summaries prepared by departments and vetted by The National Archives. The Council will ask for more details and question apparent weaknesses in the arguments for closure until it is satisfied; or until the department withdraws or modifies the request. Occasionally, the Council may request that one of its members' sees the full record. Further information on how the Council scrutinises and challenges the applications it receives is available on the Council's website: 

## Nationalarchives.Gov.Uk/About/Our-Role/Advisory-Council

The Council queried **13.5%** of applications for the transfer of records closed under qualified (i.e. not absolute) exemptions. This figure compares with 17% in 2017-18.  This change can be explained, at least in part, by the fact that departments are now providing fuller explanations in their applications. In addition, the explanatory memoranda and guidance are constantly evolving and are now well understood by all parties. 

In the majority of cases where the Council has raised queries, it has asked  departments to make the arguments for closure clearer, rather than to alter the duration of the closure period or to amend the FOI exemption to be applied to the records. Overall, there is still further scope for departments to improve the quality of their submissions and working with them to do this is one of the Council's key priorities for next year.  

In one case, the Council nominated a member to view a record because it was unpersuaded by the department's justification for closure. However, the review process did not take place, as the department subsequently withdrew the application. 

In another case, the Council recommended in favour of transferring the record open. The Foreign and Commonwealth Office (the department concerned) disagreed and the difference of opinion continued. The Council's new process for dealing with cases of unresolved disagreements (which requires the relevant department to seek a decision from its ministers where such disagreement arises) was then applied and the department's recommendation was upheld by its Minister. As the new procedure requires, the disagreement is duly noted in this report. 

Generally, the quality of the applications made by departments for closure has been satisfactory and those from departments with a large volume of business with the Council are improving. The Council has, however, had occasion to press departments to produce bespoke explanations for the record concerned, rather than offer a generic explanation which fails to address the specifics. In addition, there have been instances when departments have been slow to respond to queries raised by the Council, or have withdrawn applications only after repeated challenge from the Council. 

## Retention Of Records Under The Public Records Act Metrics

Key metrics for the period are set out in **Appendix C**. 

## Process

The Council also advises the Secretary of State on applications submitted by departments for the retention of public records under the Public Records Act 1958. The most common grounds for a department to seek to retain records are set out in guidance produced by The National Archives.  

The Secretary of State has accepted the Council's advice on every application considered this year.  

## Summary Information

While the number of applications fell slightly this year, there is still a historic increase as a result of the impact on review teams' workload of the transition to the 20-year rule, which requires departments to review two years' worth of material each year from 2013 until 2023.  

The table in **Appendix C** shows the total number of applications for closure and retention considered by the Advisory Council and the number queried by it.  There are four possible outcomes in the case of queried applications:  

  
a) clarification or additional information provided by a department is accepted by the Council 
and the application is agreed unchanged; 
b) the department amends its application so that the closure period is reduced, the reasons for 
closure are more accurately explained, or the amount of information to be closed is reduced;   
 
c) the department withdraws its application; or 
 
d) the Council and the department disagree on whether the balance of public interest requires 
the record to be closed, and the department seeks a decision from its Minister (this happened only once in 2018-19 - see the above-named section, Closure of records under the Freedom of Information Act. 

## Foi Panels Metrics

During the financial year 2018-19, 26 panels were convened, with 440 cases being considered. Panels substantively challenged 32 of these, or 7% of the total. Having been provided with more detail, the panels in most cases were able to accept departments' arguments for continuing to apply public-interest based exemptions. However, in one case, the panel's challenges resulted in the closed records being opened in full.   

Overall, sections 27 and 38 of FOIA (international relations and health and safety) were the most challenged exemptions. 

## Process

The FOI panel process is explained in more detail **in Appendix D**. As in previous years, the majority of FOI requests for closed records sought access to criminal case files, usually relating to historic murder cases. In these instances, the Council is typically called upon to balance the public interest in release against the potential distress which might be caused to victims or their relatives, or (in the case of unsolved crimes) to the risk to the successful prosecution of perpetrators in the future.   

## Additional Business

Other business which was conducted at meetings during the period included the ongoing review of Council processes and procedures, consideration of the latest Fees Order for The National Archives and an update on The National Archives' new four-year strategy. 

 

## Part Three - The Forum On Historical Manuscripts And Academic Research Background

The Forum, in its capacity as a sub-committee of the Council, provides a means through which the Chief Executive of The National Archives, in his capacity as Historical Manuscripts Commissioner, can seek advice on historical manuscripts in independent (i.e. non-governmental) archives. It is also a place for discussion about academic research issues.  

## Membership

The Forum is chaired by the Master of the Rolls. Dr Elizabeth Lomas acted as Deputy Chair until the end of 2018, when she came to the end of her term. Her successor is Ms Hillary Bauer, OBE. 

Three other members of the Council, all of whom have expertise in academic research and/or knowledge and experience of private archives, currently serve as members of the Forum.   

Two new independent members - Ms Jennifer Shaw and Ms Adele Redhead - were welcomed to the Forum in September 2018, following a successful recruitment process.   

A further recruitment process was commenced on 5 April 2019, to appoint an additional independent member. The application process closed on 26 April and interviews were held at the end of May. The final outcome was still to be confirmed at the date of publication of this report.  

## Meetings

Meetings of the Forum are attended by members and by the Chief Executive and other staff from The National Archives.  

The Forum met three times during the period covered by this report, in May and December 2018 and in March 2019. It expects to hold at least three further meetings during 2019-20, at which it will focus on its agreed strategic priorities which include:  

 
 
acting as a forum for communication between The National Archives and the wider sector for discussion of pressing current issues, such as the effect of changes to data protection legislation on archives, digital challenges and investment in ways of doing things differently;  
 
 
encouraging academic research; 
 
discussion of planned events to commemorate the 150th anniversary of the Historical Manuscripts Commission ('**HMC 150**'); and 
 
 
raising the wider profile of the Forum.  
 
During the period, the Forum continued to:  

 
 
discuss and advise on the work of the Research and Academic Engagement and the Archive Sector Development teams at The National Archives; 
 
discuss and advise on *Archives Inspire* and *Archives Unlocked,* the strategic visions for The National Archives, and their successors; and 
 
note the development of plans for the HMC 150 celebrations.   
 

## Other Business

In addition, the Forum has considered seven cases dealing with the acceptance by the government of private archives in lieu of the payment of a tax liability under the provisions of the Inheritance Tax Act 1984; and initiated discussions on the effect of digital developments on archives. 

## Part Four - Conclusion

The Council has had a busy year and is looking forward to the next year, during which its priorities will be the Code of Practice review and working with departments to continue to improve the quality of the record. It considers that it is well-placed to deal with the forthcoming tailored review process and, subject to recruitment, it looks forward to dealing with the challenges of the next year. 

## The Right Honourable Sir Terence Etherton The Master Of The Rolls June 2019 Annex A - The Remit Of The Council And The Forum Part One - The Council Background

The Advisory Council on National Records and Archives was established by the Public Records Act 1958 ('PRA') and is a non-departmental public body. It is chaired by the Master of the Rolls, The Right Honourable Sir Terence Etherton, who was appointed with effect from 3 October 2016. 

## The Role Of The Council

The Council is to consider and advise on matters including: 

 
applications from departments for the retention within those departments of public records beyond the age of 20 years, when those selected for permanent preservation are normally transferred to The National Archives; 
 
the balance of the public interest in relation to applications from departments for the extended closure of historical public records and other 'matters relating to the application of the Freedom of Information Act 2000 ('**FOI Act**') to information contained in public records that are historical records within the meaning of Part VI of that Act'; 
 
the balance of the public interest in the release or non-disclosure of historical records, an 
application for the disclosure of which has been made under the FOIA; and 
 
preservation of public records in places of deposit and facilities for public access to them. 
 Requests under FOIA in accordance with the third bullet point are dealt with through the FOI panel process, which is described in **Annex D** below. In addition, the Council may be required to advise on: 

 
major objectives, programmes and policy changes for The National Archives; 
 
proposed legislation affecting The National Archives; 
 
the implications for records and public services of any proposed change to the status of The National Archives; and/or 
 
any subject brought to its attention by the Secretary of State. 
 As its name suggests, the Council's role is advisory. Accordingly, the Council does not: 

 
make the final decision as to whether: 
 
when they become historical, records are transferred to The National Archives closed; nor 
 
when a closed record is reviewed after transfer, it should remain closed. 
These decisions lie with the department whose records they are;  

 
 
make the final decision on whether a record can be retained by a department. This decision is made by the Secretary of State for Digital, Culture, Media and Sport;    
 
 
advise on departments' retention of records under the Security and Retention Instrument 2011; nor 
 
 
review departments' decisions on the selection of their records for permanent preservation.   
 
This falls under the remit of the Keeper of Public Records. 

## Part Two - The Forum

The Council's responsibility relating to historical manuscripts (private archives) is discharged through the work of its sub-committee, the Forum on Historical Manuscripts and Academic Research. The Forum advises the Keeper of Public Records in his capacity as Historical Manuscripts Commissioner. The Forum considers and provides advice to the Secretary of State through the Council on matters relating to manuscripts, records and archives, other than public records, and particularly: 

 
 
the location, collection, care, custody, preservation, acquisition, sale, and use in all formats of such documents; 
 
the compilation and dissemination of information about them; 
 
 
any questions affecting such documents as may be referred for its consideration, including issues relating to the statutory duties of the Master of the Rolls in respect of manorial and tithe documents, and the making of recommendations to Arts Council England on the allocation of archives and manuscripts accepted for the nation in lieu of tax; and 
 
other issues that would formerly have come within the terms of reference of the Royal Commission on Historical Manuscripts. 
 In addition, on behalf of the Council, the Forum is to: 

 
 
act as a vehicle for the development of constructive and collaborative engagement between The National Archives and its academic stakeholders, sharing knowledge and developing trust and understanding; and 
 
provide an open, independent and authoritative advisory voice to The National Archives, to support its research and academic liaison. 

## Annex B - Membership Part One - The Council

The Master of the Rolls chairs the Advisory Council. The Master of the Rolls was originally responsible for the safe-keeping of charters, patents and records of important court judgments. Today he is President of the Court of Appeal (Civil Division) and Head of Civil Justice. The current Master of the Rolls is the **Right Honourable Sir Terence Etherton**.  

## The Deputy Chair Is **Mr Trevor Woolley Cb**.

During the period covered by this report, one member - Ms Angela Kelly - resigned and two members - Sir John Ramsden and Dr Elizabeth Lomas - came to the end of their terms. The current members of the Council are: Lady Moira Andrews, Director, Praetor Legal Ltd and ADS Group Ltd; Visiting Research Fellow, King's College London; former Government Legal Adviser. 

Ms Hillary Bauer, OBE, adviser on culture and heritage issues; formerly Head of International and Cultural Property Unit, Department for Digital, Culture, Media and Sport. Ms Liz Copper, BBC Senior Broadcast Journalist. Ms Lesley Ferguson, Head of Archives and Engagement, Historic Environment Scotland. Dr Helen Forde, historian and archivist; formerly board member of the Museums and Libraries Association; Chair of the Board of Trustees of the Postal Museum; Vice-President of the Society of Antiquaries. 

## Dr Peter Gooderham, Cmg, Former Ambassador To The Un And Wto In Geneva.

Mr Michael Smyth CBE QC (Hon), Member Legal Services Board and Fundraising Regulator; former Head of Government Practice, Clifford Chance. Ms Jeannette Strickland, independent archive and records consultant; formerly Head of Art, Archives and Records Management, Unilever. 

Mr John Wood, solicitor; Advisory Committee on Business Appointments (ACOBA) Independent Member; formerly Charity Commission for England and Wales Legal Board Member and Board Consultant; formerly Herbert Smith Freehills, Partner, then Consultant. Mr Trevor Woolley CB, non-executive director, Oil and Pipelines Agency; formerly Director General, Ministry of Defence, who also acts as Deputy Chair of the Council. The Secretary to the Council is currently **Anne Hardy** of The National Archives. 

## Part Two - The Forum

The Master of the Rolls chairs the Forum. Council members Ms Hillary Bauer, OBE (the current Deputy Chair), Ms Lesley Ferguson, Dr Helen Forde and Ms Jeannette Strickland sit on the Forum, together with the following independent members: 

Ms Adele Redhead, a lecturer at the University of Glasgow, where she leads the MSc in Information Management and Preservation. She is a qualified archivist and has extensive experience in archives and records information management in a variety of sectors. She is a member of the Scottish Catholic Heritage Commission. 

Ms Jenny Shaw, the Collections Development Manager for the Wellcome Collection, where she is responsible for setting the collecting direction across formats, including archives. She previously worked as an archivist at the British Red Cross and BT Heritage The Chief Executive of The National Archives is also a member of the Forum, on an ex officio basis, as the Historical Manuscripts Commissioner. The Secretary to the Forum is **Anne Hardy** of The National Archives. 

Annex C - Metrics Key statistics relating to applications considered by the Council are set out below. 

## Closure Of Records

 
In 2018-19, 69,974 government records were accessioned at The National Archives. 
 
61,145, or 87.4% of these records were transferred open in full or partially closed and can be viewed at The National Archives by any member of the public who has a reader's ticket. 
 
4,658, or 6.7% of these records were transferred closed, after departmental applications to do so had been scrutinised by the Council. 
 
4,084, or 5.9% of these records were retained in full by the relevant department. 
 
The remaining 87 were transferred as 'number not used'. (NB: This tag is used where a gap is identified in The National Archives' sequential catalogue numbering system. This might occur if, for example, a duplicate record is discovered. To avoid a laborious renumbering process, the relevant record number is shown in the catalogue as 'unused'.) 
 
The number of closure applications submitted to the Council decreased this year to 5,843, compared with 5,974 in 2017-18. Around 54% of these applications engaged only absolute exemptions and so were not subject to a public interest test. Of these, the vast majority involved personal information about private individuals; personal information may be protected from release by data protection legislation. In considering applications to close records to the public, the Council focuses on those that invoke exemptions subject to a public interest test. The most common exemptions claimed concern of damage to international relations and risks to the health or safety of individuals. 

## Retention

This year, the Council considered 970 retention applications, compared with 1,432 in 2017-18. 

## Applications Considered

Overall, there was a decrease of 8% in the number of applications compared with 2017-18, but this still represents an increase of 35% on 2015-16.  

The table below sets out key metrics for 2018-19, as compared with previous years: 
 

|                       |              |       |       |               | 2014-15 2015-16 2016-17 2017-18    | 2018-19*    |
|-----------------------|--------------|-------|-------|---------------|------------------------------------|-------------|
| Closure               | Applications | 4,250 | 4,435 | 4,290         | 5,974                              | 5,843       |
| applications          | considered   |       |       |               |                                    |             |
| Applications          | 181          | 480   | 506** | 410**         | 387                                |             |
| queried               |              |       |       |               |                                    |             |
| Applications          | 105          | 340   | 232   | 122           | 157                                |             |
| where                 |              |       |       |               |                                    |             |
| clarification         |              |       |       |               |                                    |             |
| was received          |              |       |       |               |                                    |             |
| and accepted          |              |       |       |               |                                    |             |
| Applications          | 67           | 126   | 218   | 209 ½***  183 |                                    |             |
| which were            |              |       |       |               |                                    |             |
| amended by            |              |       |       |               |                                    |             |
| departments           |              |       |       |               |                                    |             |
| and accepted          |              |       |       |               |                                    |             |
| Applications          | 9            | 14    |       | 34            | 31 ½***   13                       |             |
| withdrawn by          |              |       |       |               |                                    |             |
| departments           |              |       |       |               |                                    |             |
| following             |              |       |       |               |                                    |             |
| challenge by          |              |       |       |               |                                    |             |
| the Council           |              |       |       |               |                                    |             |
| Outstanding closure   |              |       |       | 1             | 34                                 |             |
| applications at March |              |       |       |               |                                    |             |
| 2019*                 |              |       |       |               |                                    |             |
| Retention             | Applications | 793   | 952   | 986           | 1,432                              | 970         |
| applications          | considered   |       |       |               |                                    |             |
| Applications          | 28           | 44    | 116   | 125           | 52                                 |             |
| queried               |              |       |       |               |                                    |             |
| Applications          | 21           | 28    | 41    | 32            | 20                                 |             |
| where                 |              |       |       |               |                                    |             |
| clarification         |              |       |       |               |                                    |             |
was received and accepted Applications 
4 
12 
39 
79 
19 
which were amended by departments and accepted Applications 
3 
4 
26 
14 
4 
withdrawn by departments following challenge by 
the Council 
Outstanding retention 


9 
applications at March 2019* 

*A number of queried cases remained unresolved at the end of the period covered by this report and will be carried forward. At the same time, the unresolved queries from the previous period have been included in this report. 

**One application for 2016/17 was never resolved, see the section in this report called Access to Public Records. 46 closure applications queried in 2017/18 were not resolved through the query process but resubmitted on a new schedule. 

***The figure of ½ referred to reflects the fact that the relevant application covered two records and the application in respect of one of these was withdrawn. 

 

## Annex D - The Foi Panel Process The Council'S Foi Panel Process

The Council is responsible for advising the Secretary of State on the application of the Freedom of Information Act 2000 ('**FOIA**') to historical public records.  

Records retained by departments and those closed at transfer to The National Archives remain subject to the FOIA and individuals can make a request under FOIA (an '**FOI request**') to have access to them.  

When The National Archives receives a FOI request for access to closed information held by it, it follows the procedure set out in Part VI of FOIA. Under these provisions, before a request can be refused on the grounds of a qualified exemption, the Secretary of State must be consulted. The Council will assess the public interest test, which is necessary before such an exemption can be applied. This test is applied to determine, whether, in all the circumstances of the case, the public interest in disclosure is outweighed by the public interest in refusing access to the information in the record.  

For this purpose, panels of three Council members are convened to consider the public interest in the release or non-disclosure of the requested information.  The Council has no advisory role when a request is to be refused citing only absolute exemptions).  

 
In most cases, the FOI request concerns information closed at transfer on the grounds that it was information: 
 

 
that, if released, would endanger the safety or physical or mental health of an individual; 
 
that, if released, would damage international relations; or 
 
relating to law enforcement.  
 
Cases are carefully scrutinised and debated by panels on the basis of a fresh assessment by the department of the arguments for and against disclosure, taking account of any change in circumstances since the access status of the record was last considered.  

If they consider it necessary, a panel will request further detail or clarification from the relevant department or The National Archives. Even where they are in agreement that the public interest in closure outweighs the public interest in applying the exemption, the panel may also raise concerns about departmental practices and draw attention to inconsistencies between departments in their handling of FOI requests.