Opinion Articles

“Access under review”: Freedom of Information, Data Protection, and the Disappearing Archive

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While many historians will be familiar with the limitations of the Freedom of Information Act (FOIA) when trying to obtain access to closed records at the National Archives (TNA), few will be aware that since 2012 thousands of previously open documents have been removed from public access under TNA’s Reclosure Policy. Under this policy records are withdrawn “immediately and unquestioningly” on receipt of a request from a member of the public, a Government Department, or a member of TNA staff. These records are then designated “Access Under Review” (AUR) pending a decision by TNA’s Reclosure Panel.

Although TNA publish Annual Reclosure Reports, these do not reveal the full extent of the records being removed from public access. Not only do they fail to provide details of the individual records reclosed (referring only to reclosure decisions at series level), they also neglect to include information about records that have been placed (or remain) AUR. Given that a recent FOIA request revealed that, as of November 2023, there were more than 23000 documents designated AUR (and that more than 600 had been withdrawn during 2023), there is a clear lack of openness and transparency about the full impact of TNA’s  Reclosure Policy on public access. Moreover, the rate of reclosures since 2012, and the very high proportion of these being initiated by TNA staff, suggests a deliberate and systematic internal administrative process is being used to deprive current and future researchers of access to records that were readily available to their predecessors.

My research into TNA’s Reclosure Policy has revealed several areas of concern. Firstly, the Reclosure Panel is composed entirely of TNA staff and operates without any external scrutiny. Furthermore, since 2020, the Reclosure Panel’s decisions no longer require Executive Board approval. In addition, virtually all reclosure decisions rely on exemptions to the FOIA, despite it being unclear if Parliament intended for these to be applied retrospectively to records that have already been publicly accessible for many years. Moreover, my research has revealed that the vast majority of reclosure decisions rely on exemptions under Section 40 (Personal Data) and Section 38 (Health and Safety). The application of these exemptions is, however, hugely problematic.

For example, a series of FOIA requests relating to the reclosure of several records concerning a criminal trial from 1935 revealed that a Section 40 exemption had been applied to protect the personal data of the defendant’s only child, who was presumed to be still living. However, having made successful FOIA requests for access to these records (on the grounds that the defendant’s child had died in 2006 - sixteen years before the records were reclosed), I found that the only personal data relating to this person was already in the public domain due to extensive newspaper coverage of the trial.

Furthermore, TNA do not appear to have considered that the General Data Protection Regulations (GDPR) underpinning Section 40 includes exemptions that permit the processing of personal data for the purposes of academic research, literary works, and journalism. In addition, the Information Commissioner’s Office guidance is clear that GDPR does not apply to personal data already in the public domain including, one presumes, data on living individuals that can be easily obtained using either of the on-line genealogical services to which TNA itself subscribes.

TNA’s application of the Section 38 (Health and Safety) exemptions is equally problematic as it appears to be based on subjective perceptions of psychological safety. Indeed, a significant proportion of the reclosures for 2023 are records relating to historical murder trials. These include cases that are widely known and extensively documented; and where TNA’s records have been in the public domain for many years. Furthermore, the use of Section 38 to justify the reclosure of records that TNA staff may consider injurious to mental health is inconsistent with the Information Tribunal decisions in Lownie (2018) and Phillips (2013) which ruled that the hypothetical risk of distress (including to surviving family members) is inadequate grounds for invoking the Section 38 exemptions. Moreover, as well as the requirement to provide “objective medical evidence” of a risk to mental health, the Tribunal in Phillips ruled that, in the case of historical crime records, “the passage of time and the information that is already in the public domain may mean that applying section 38 is inappropriate”.

It is also apparent that the rate of reclosures has increased significantly in recent years. According to TNA’s Annual Reclosure Reports, just 12 cases were considered in 2012, none of which resulted in full reclosure and only 7 in partial reclosure. However, since 2016, more than 99% of the 433 cases considered by TNA’s Reclosure Panel have resulted in either full or partial reclosure. Due to the lack of detail provided in these reports, it is unclear how many individual records have been reclosed because of these decisions.

Perhaps the most concerning aspect of the increase in records being withdrawn from public access is that the majority of recent reclosure requests are being made by TNA staff. Of the 470 records reclosed in 2023, only six originated from a request by a member of the public, and just one from a Government Department. This makes the lack of any external scrutiny of the operation of TNA’s Reclosure Policy even more difficult to justify.

My research also revealed that TNA appear to be undertaking the systematic withdrawal of access to 20th Century court records. Not only do such records account for more than 60% of the items placed AUR in 2023, more than a hundred were removed from public access in a single day. This indicates the implementation of an internal policy relating to these types of records that has not been disclosed to users or subject to external scrutiny or consultation. As well as being contrary to the principle of open justice, the withdrawal of access to historical court records is also likely to impede important social research, including by those seeking to tackle male violence against women and girls; those researching the treatment of women and minoritised groups within the criminal justice system; or, indeed, those investigating potential miscarriages of justice.

Given that the FOIA was intended to encourage greater openness and transparency and to facilitate access to public records, it is deeply concerning, and entirely antithetical to its responsibilities as an Independent Research Organisation, that TNA is using its provisions to reclose records through the retrospective and largely covert application of FOI exemptions to records that have been in the public domain for many years.

Please note: Views expressed are those of the author.

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