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- 20-year rule and records of local interest
20-year rule and records of local interest
In July 2012 the Government announced that from 1 January 2013, central government departments would begin transferring records in line with the new 20-year rule. This replaces the previous 30-year rule, and the change means that thousands of historical records will be released to the public much earlier than previously possible.
What does this change mean?
This change requires The National Archives, other government departments and certain public bodies to process two years of records each year for ten years until the new rule is reached in 2023. This change will also affect those bodies that act as places of deposit for their own organisation, including some non-departmental public bodies and similar arms-length bodies. For local places of deposit there will be a similar ten-year transition, probably from 2015.
What is The National Archives doing?
In our archives sector leadership role, The National Archives recognises the challenges currently faced by Places of Deposit maintained by local authorities. We also understand that some categories of records transferred to local places of deposit have specific risks and factors unique to them and we are working to help make sure that transition is met with minimal impact by:
- planning a number of initiatives within government to be in place by 2013 to make the transfer process more efficient and cost-effective
- drafting guidelines on selection and transfer procedures to streamline these processes
- undertaking a new local government impact assessment and consulting the wider sector and specific representative groups on other issues
- ensuring that the benefits of improved processes within central government are also realised for local places of deposit
You can find out more about the 20-year rule and how it is implemented across government departments on the following pages:
As part of our impact assessment we are surveying different organisations which have responsibility for public records and here we answer frequently asked questions to help with the NHS Information Governance toolkit:
NHS Information Governance Toolkit (IGT) frequently asked questions
These FAQs (Frequently Asked Questions) have been prepared to answer the most likely questions about the new additions to the IGT v11.1 relating to corporate records and those arising in a pilot of questions run with a small sample of NHS acute trusts in summer 2013.
For guidance on how to answer the questions in the toolkit, please refer to the contextual help in the IGT.
Why are these additional questions being asked in the IGT?
It is government policy to implement a 20-year rule across public bodies subject to the Public Records Act 1958, replacing the previous 30 year rule. The '20 year-rule' is shorthand for the latest lawful timing of transfer of records of historical value to archives: this follows identification, selection and preparation of those records and the disposal of unselected records as part of this statutory duty.
The National Archives is conducting an impact assessment of the options and costs for implementing the 20-year rule from 2015 for a ministerial decision by the Home Affairs Committee of the Cabinet. This decision will involve the Secretary of State for Health and his Cabinet colleagues.
The questions have been incorporated into the IGT to avoid burdening NHS bodies with an additional survey at a challenging time. They have been kept to the minimum and the results will be used with more detailed information from a sample of trusts and other data to model the costs of implementation.
What has this got to do with me and my Trust?
Almost all NHS bodies, including NHS Authorities, acute, commissioning, ambulance and mental health trusts (whether possessing Foundation Trust status or not) are subject to the Public Records Act 1958 (see the table at www.legislation.gov.uk/ukpga/Eliz2/6-7/51/schedule/FIRST).
This means that these NHS bodies have a statutory duty under section 3 to identify records of historical interest (sub-section 1) and transfer them to an archive prior to them reaching 30 (in the future, 20) years old. In practice, most go to local archives and selection is managed in partnership between the NHS body and the archives service. Under section 3(2) they also have a statutory duty to follow the guidance and supervision of The National Archives in the carrying out of that duty.
Clinical records are very rarely archived for historical interest reasons, except by a very small number of mental health trusts.
Clinical records are the only IGT priority: can't I just answer the IGT sections on that and skip these?
The 20-year rule is a key part of the coalition government's transparency agenda, which also applies to the NHS. This is relevant both to the handling of corporate information and giving local communities access to historical archives at the appropriate time.
In addition to the reasons above, the concerns expressed in the Francis Report into the Mid-Staffordshire NHS Foundation Trust include a number of issues and recommendations about corporate records and information management which are particularly relevant to the records of Trust Boards.
What are The National Archives and 'places of deposit'?
The National Archives is the archive of the UK Government and, with the Secretary of State for Justice's functions as Lord Chancellor, responsible for the co-ordination and supervision of the public records system. Under the Public Records Act section 4, there is a mechanism for records of mainly local historical interest to be transferred to archives in the regions: these are appointed as places of deposit on the Lord Chancellor's behalf.
How do these questions relate to the NHS records management code of practice and the rest of the IGT?
There are parts of both the NHS records management code and the IGT that remind NHS bodies of these duties. There is also a statutory Code of Practice on Records Management issued by the Lord Chancellor under section 46 of the Freedom of Information Act 2000 covering all public authorities - including the NHS - and the Information Commissioner uses this in his FOI regulatory work. Part 2 of the s46 Code is concerned with archival transfer.
In the IGT itself, requirement 601 on corporate records management cites the Public Records Act duty as the first requirement origin. There are relevant wordings in the records management procedures relating to creation, tracking and tracing and (especially) retention and disposal.
The National Archives considers it essential for compliance with the duty under section 3 of the Public Records Act for NHS organisations to have accurate information on the age and disposition of their records. This is also reflected in IGT requirement 604 on the auditing of corporate records. We do not anticipate any NHS body achieving level 2 or 3 against IGT Requirement 604 will find answering the new questions challenging. Organisations at level 1 may wish to consider implementing the plans required by that level as a means of answering them.
Do I have to answer these questions?
Accurate information is required to support a ministerial decision on the timing of implementation of the 20-year rule. The Secretary of State for Health is a member of the Cabinet Committee that will be considering this in early 2014.
Following discussions between NHS England and The National Archives, it was agreed that the IGT maintained by HSCIC is the best vehicle for asking NHS bodies for this information. IGT responses are subject to an auditing procedure and the results will be published in due course (without the personal data of IG practitioners). The National Archives publishes related data on government departments' progress towards implementing the 20-year rule for records transferring there: nationalarchives.gov.uk/about/record-transfer-report.htm.
Giving accurate data for your organisation is also your opportunity to feed your situation into the decision-making process.
When do I have to provide the information?
Responses to the three new questions are required by the end of December 2013 to enable analysis prior to an implementation proposal being put to the Home Affairs Committee early in 2014. You can submit evidence to support the answers following the usual audit processes of the IGT by the usual date of the end of March.
How do I provide the information?
Complete the relevant section of the online IGT.
What should I do if I do not know the answers to the questions?
Given the timescale, undertaking comprehensive surveys from scratch is unlikely to be practical. If you are at level 1 on IGT requirement 604, you may need to plan to reach level 2, bearing them in mind. We recognise that this is a very busy time for NHS bodies and well-informed estimates may be helpful. Please refer in the first instance to the contextual help on the toolkit itself.
You should develop an estimate based on whatever information you have or can reasonably collect in the timescale, and describe the basis for this in the comments field.
You might obtain data from all or some of the following:
- direct measurement of known large accumulations of records
- invoicing information or transfer lists from commercial storage providers
- phone/email surveys of selected members of staff in departments likely to create or hold records
- where several units of similar type exist, surveying a representative sample and scaling up
- asking estates colleagues where quantities of non-current records may be held
- previous partial surveys
Where these exist, file lists may give an indication of date coverage, or colleagues may be able to give an estimate based on their knowledge of their records or current retention guidance. In some cases it may be worth directly examining a small sample of a records to get an indication of date ranges.
What are CCGs required to do for the implementation of the 20 Year Rule?
We will post a clarification in the next IG Bulletin. The text within the IG Toolkit news item is correct. Only NHS Acute, Ambulance, Community and Mental Health Trusts are subject to this information gathering exercise.
Clinical Commissioning Groups (CCGs) are not subject to this information gathering exercise. As new organisations, the approach to understanding the impact upon them will be different.
However, CCGs are subject to the Public Records Act and when creating their Corporate Records Management systems will need to consider the obligations this and other relevant Acts (Freedom of Information Section 46 guidance) put upon them. See the Lord Chancellor's Code of Practice on the management of records issued under section 46 of the Freedom of Information Act 2000.
Does a retention period (within the Records Management NHS Code of Practice) of 20 years plus mean those record series will need to be transferred?
No. The retention periods in the RM Code refer solely to retention by NHS bodies themselves for their own operational and legal needs. Appraisal to determine if a record is of archival value (that is, worthy of permanent retention) is a separate process. There are suggestions within the NHS Code of Practice, 'likely to be of archival value', but these are not definitive and organisations will need to consider how they meet their obligations under the Public Records Act, Freedom of Information Act and other relevant legislation, in consultation with the relevant place of deposit.
More guidance is due shortly but useful links can be found in the Records Management NHS Code of Practice, the Lord Chancellor's Code of Practice on the management of records issued under section 46 of the Freedom of Information Act 2000.
We are a not for profit partner agency working in Community Care. Are we covered by 20YR?
No. Only NHS Trusts and Foundation Trusts, and CCG's are covered. If an NHS body has contractual control over any of your records, these may be covered, but it is for the NHS body to implement compliance.
I cannot see the content under the 20 Year Rule Tab. How can I see it?
Check your access privileges. To do this log into the IG Toolkit, click 'Admin' on the left-hand navigation, and then go to 'My Details' where your assigned role(s) will be displayed. Only users with an Organisation Administrator role can see the 20 Year Rule content. If you need to contact your Organisation Administrator regarding your access/the 20 Year Rule content and are not aware who this is, please contact the IG Toolkit team.
What happens if records have been digitised or are now produced in digital formats or systems?
The Public Records Act applies to all formats and types of records, so in principle, digital material will also be subject to 20 Year Rule transition, and some NHS websites have already been captured for preservation centrally by The National Archives' Government Web Archive or a specific web crawl:
However, preservation of digital records over long periods of time is a major issue in its own right, irrespective of 20YR, and the current collection of information is therefore being limited to paper and other hard copy formats only (such as microfilm).
Will the change to a 20YR affect the retention periods for records listed in the RM Code as having retention periods longer than that?
This will be reviewed when the Code is updated. There is provision in the Public Records Act to retain records to meet operational needs beyond the default transfer period (currently 30 years) subject to the agreement of the Lord Chancellor. The National Archives is considering the possibility of developing a 'blanket' retention instrument to cover certain types of NHS records with potential long-term operational value.
My Trust has no records dating to before 2005, but the 20YR form will not allow me to enter a zero response.
This is a technical issue with the form: as a workaround, please enter a nominal figure of 1, and add a note that you have done this. However, bear in mind that even if your Trust was recently created, records relating to your current functions which were created by its predecessors may be held by some other NHS body, but have not yet been passed over to you.
Should we include clinical records in our 20YR return?
No. The definition of 'corporate records' we are using is that in the NHS RM Code: 'Records (other than health records) that are of, or relating to, an organisation's business activities covering all the functions, processes, activities and transactions of the organisation and of its employees'. Some administrative functions will of course contain some information about patients, or even be focused on patients, but the intention is that the main series of health records is out of scope.
Is there anyone I can talk to about further questions I may have about this exercise?
Please contact: firstname.lastname@example.org for assistance with these queries