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“Prejudicial to the effective conduct of public affairs”: More questions for TNA on FOI and Reclosure.

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Earlier this year Andrew Lownie and I posted separate articles for History & Policy expressing our concerns about the operation of the National Archives’ Reclosure Policy, to which the editors invited TNA to respond. Unsurprisingly, given its apparent reluctance to engage with historians on this issue, no reply has yet been forthcoming. Indeed, the only consolation TNA has offered to those critical of the Reclosure Policy is to suggest that anyone seeking access to reclosed records can always make a request under the Freedom of Information (FOI) Act – even though this is the same legislation TNA relies on to justify reclosure in the first place. Moreover, recent developments in TNA’s approach to reclosure have acted to make it virtually impossible for users to make a successful FOI request to obtain access to these records.

TNA’s record on FOI requests is already poor. In March 2023 TNA were issued with a Practice Recommendation by the Information Commissioner’s Office (ICO) due to its failure to respond to FOI requests within the set timescales. In its defence, TNA might point to the large number of requests it receives each year; in 2023 TNA dealt with more than 20000 FOI requests, of which more than three-quarters were for MoD Service Records. With this in mind, however, one wonders how TNA would cope if, as they routinely suggest, users doubled this figure by making simultaneous FOI requests for each of the 23000 records either reclosed or placed “access under review” as of November 2023.

My own FOI requests for access to a much smaller sample of reclosed records have all been painfully slow to come to fruition. As well as exceeding the timescales for a response, TNA rarely grants access at the first time of asking and all but one of my requests have had to go through the even more time-consuming process of an internal review. Such delays are a serious impediment to researchers with time-restricted funding, limited research time and deadlines to meet; particularly early career academics for whom the pressure to publish is especially acute. Moreover, and as Andrew Lownie’s experience demonstrates, pursuing an appeal against an unsuccessful request via the ICO can take years, with no guarantee of a satisfactory conclusion. As a result, it is only the most established or most persistent researchers who have been willing and able to push back.

The success of my own FOI requests has also revealed serious flaws in the operation of the Reclosure Policy. Quite apart from the misapplication of the FOI exemptions referred to in my previous article, my most recent experience demonstrates a concerning lack of rigour in TNA’s reclosure review process. In one case, a cursory search of the online British Newspaper Archive revealed all the details that TNA had considered sufficiently “sensitive” to justify reclosing the court records relating to an infanticide case from 1933. Even so, it took more than three months and an internal review before TNA were willing to concede that “taking into consideration the passage of time (over 90 years) and the reasonable availability of information already in the public domain” the record should be reopened. Given that it took me only a matter of minutes to determine that detailed information about this case was readily available online and that, presumably, TNA were already aware of the passage of time since these events took place, it is surprising that neither of these factors appear to have been considered by the Reclosure Panel when making the decision to remove this record from public access in 2023 (or even by TNA’s FOI Centre when I submitted my initial request). Nor has it deterred TNA from reclosing a cluster of similar records from the same period in the first four months of this year.

That TNA is becoming increasingly sensitive to any attempts to scrutinise or challenge its reclosure decisions is also demonstrated by a concerning new development which has resulted in the reclosure of record titles and descriptions on the Discovery catalogue, as well as the records themselves. Of the 152 records reclosed by TNA between January and April 2024, (all but three of which were reclosed at the request of TNA staff), the record titles and descriptions of more than a third have also been reclosed or placed access under review. Not only does this make it impossible for users to identify records that might be of interest to them, it also precludes them from obtaining the evidence required to make a successful FOI request for access. That the records affected include the cluster of infanticide case records referred to earlier (and which I had obtained details of prior to reclosure), suggests either the implementation of another inherently flawed internal policy or a cynical attempt to stifle any further external scrutiny. The latter is also indicated by the increasing use of the Section 36 FOI exemptions to justify a refusal to disclose corporate information about the operation of the Reclosure Policy, or even copies of reclosure reports for individual records - something that TNA were happy to disclose when I first began requesting them. That TNA should seek to rely on a FOI exemption intended to protect the “effective conduct of public affairs’ to avoid scrutiny of internal processes that have already been found seriously wanting is a further indication of the lack of transparency and accountability surrounding policies and practices that are having a significant impact on user access.

Given that TNA will be welcoming a new Keeper and CEO, Saul Nassé, later this month, this might be an opportune moment for TNA to reconsider this deeply flawed policy which, as well as acting against the interests of researchers, is entirely antithetical to TNA’s public function. Failing that, perhaps Lisa Nandy, the new Secretary of State for the Department of Culture Media and Sport, or the Parliamentary Select Committee might intervene to provide the scrutiny and oversight that TNA appears so keen to avoid.

Please note: Views expressed are those of the author.

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