Workbook on Digital Private Papers > Legal issues > Policy and legislation aimed at enhancing access to information

Policy and legislation aimed at enhancing access to information

Archivists must always strike a balance between access and preservation and attempt to reconcile the needs of records creators, who are concerned about privacy and IPRs, with those of records users, who want access. There has been a trend towards enhancing access provision in recent years, which is reflected in public policy and legislation, such as:

This emphasis on access is apparent in major funding opportunities such as the New Opportunities Fund and the Heritage Lottery Fund, which have tended to focus on projects which potentially widen and increase the audience for archival collections particularly via digitisation schemes.

Council of Europe Recommendation: A European Policy on access to archives

The Council of Europe's recommendation calls for the adoption of a European policy on access to archives. The recommendation is based on an understanding that archives play a role in 'reinforcing cultural diversity and democracy' and as historical sources, which promote understanding of the past and allow us to 'take reasoned decisions on the future.' Although the recommendation has not been adopted as a regulation, it has influenced the drafting of archival legislation.

'Your Right to Know' The Freedom of Information Act 2000 (c36)

Over sixty countries have implemented some form of freedom of information legislation and many more countries around the world are working towards introducing similar laws. Such legislation defines a legal process by which government information is available to the public and limits governmental secrecy. The Freedom of Information Act 2000 (FOIA) (England, Wales and Northern Ireland) applies across the public sector as a whole, at national, regional and local level and gives individuals a right to access information held by relevant public sector bodies. The Information Commissioner's Office oversees the implementation of FOI.

There is separate provision for Scotland in the Freedom of Information (Scotland) Act 2002 (2002 asp 13).

Publication schemes

FOIA places statutory duties on public sector bodies to produce a 'publication scheme' which explains what information they put into the public domain as a matter of course and how to access that information. Publication schemes may well become a useful tool for researchers.

Freedom of information requests

When a written request for information is made to a public sector body it must be considered as a request under FOIA. This means that the enquirer must be told whether the information they seek exists and they must be provided with access to the information within 20 working days of the request.

The Act intends to promote access to information in public records, but it does have a number of exemptions which can be applied, although these are subject to a 'public interest test'. Exemptions relevant to those responsible for archives and manuscripts include:

Information held on behalf of another person is also exempt from the Act under Section 3(2)(a). Under s. 12(1), institutions may also refuse to provide information where 'the authority estimates that the cost of complying would exceed the appropriate limit'.

Section 46 of FOIA required the Lord Chancellor to publish a Code of Practice on the Management of Records. He did this in November 2002.

Evaluating the first year of FOIA

In 2005 JISC and Universities UK conducted a survey of English and Welsh universities to find out how the first year of FOIA has impacted on HE institutions; the results provide information about operational aspects of fulfilling requests as well as a breakdown of the kinds of requests received. There has also been much press coverage on the FOIA during its first year of operation including calls for a clamp down on frivolous enquiries.

Special Educational Needs and Disability Act 2001 (c10)

SENDA establishes legal rights for disabled students in pre- and post-16 education. The Act amends Part IV of the Disability Discrimination Act (DDA) to include education, and now becomes part IV of the DDA. The legislation impacts on those responsible for providing access to personal archives and related services in the Higher Education sector. The legislation makes it unlawful for a disabled person to be treated 'less favourably' than a non-disabled person for a reason that relates to the person's disability. Archivists should ensure that means of interfacing with their systems are compliant with SENDA's requirements.