1. Under section 3(8) of the Public Records Act 1958 ("the 1958 Act"), UK public records which relate wholly or mainly to Scotland are transferred to the Keeper of Records of Scotland ("the Scottish Keeper"). This Annex sets out the arrangements for dealing with requests for access to such records under the Freedom of Information Act 2000 ("the UK FOI Act") and the Freedom of Information (Scotland) Act 2002 ("the Scottish FOI Act").
2. For the purposes of the arrangements set out in this Annex, any UK public record transferred to the Scottish Keeper will be either fully open or fully closed. Where a UK authority considers that only part of the information on such a record can be designated as open, the whole record will be designated as closed. (Paragraphs 5 to 8 below explain the meaning of "open" and "closed" records for the purposes of this Annex - it should be noted that these are different from the traditional meanings which relate to whether or not records held in an archive are accessible to the public).
3. At the time when a UK authority transfers a closed record to the Scottish Keeper, the authority and the Keeper will agree the closure period, ie the date from which the record will cease to be "exempt information" under the UK FOI Act. At that date the record will become an open record and be subject to the arrangements set out in paragraph 5 and 6 below.
4. UK public records which are held in Scottish archives other than the National Archives of Scotland (NAS) shall, for the purposes of the arrangements set out in this Annex, be treated as if they were held by the Scottish Keeper. Accordingly, such records will be subject to the arrangements set out below for open or closed records as appropriate.
5. "Open records" are records containing only information which has been designated as open for the purposes of section 3(4)(b) of the Scottish FOI Act by the UK public authority which passed them to the Scottish Keeper. Under section 3(4)(b) of that Act, these records will be regarded as being held by the Scottish Keeper for the purposes of that Act. This has the effect of bringing such records within the scope of the Scottish FOI Act.
6. In practice, a UK public record will be designated as "open" only if the UK authority considers that all the information it contains can be made automatically accessible to the public. The Scottish Keeper makes such open records available for inspection and (where practicable) copying by members of the public on request. Therefore, under the terms of section 25 of the Scottish FOI Act, open records are information which is otherwise accessible, and so they are "exempt information" for the purposes of that Act. This means that open records are exempt from the general entitlement to information provided by the Scottish FOI Act and, instead the arrangements under which the Scottish Keeper makes these records available to the public will continue to apply.
7. "Closed records" are records containing only information which has not been designated as open for the purposes of section 3(4)(b) of the Scottish FOI Act by the UK public authority which passed them to the Scottish Keeper. In terms of the arrangements set out in this Annex, closed records shall be dealt with on the basis that they are held on behalf of the Keeper of Public Records ("the UK Keeper"). This means they are to be treated as subject to the UK FOI Act (see section 3(2)(b) of that Act).
8. In practice, this will mean that a closed record contains at least some information which is covered by an exemption under the UK FOI Act and which the UK authority considers cannot be made automatically accessible to the public. Therefore, when the Scottish Keeper receives a request for access to such a record he will pass the request, and provide access to relevant information, to The National Archives (TNA) to deal with in accordance with the UK FOI Act and therefore in consultation with the UK public authority where the record originated from. TNA, in consultation with the NAS, will decide whether or not it is necessary to transmit the record or whether they can be supplied with the relevant information by an alternative method. This may include photocopies, or digital images, or extracts of the record. If the original record is sent to TNA, TNA will return it to the Scottish Keeper as soon as possible after they have dealt with the request.
9. If, following consideration of such a request, it is decided to open the whole record, TNA will inform the Scottish Keeper that it can be made available as an open record in accordance with the arrangements described in paragraphs 5 and 6 above. If it is decided to keep the record closed, the record will remain subject to the UK FOI Act and any further requests for access to that record will be dealt with in accordance with the arrangements described in paragraphs 7 and 8 above. If TNA conclude that only part of the information on a record is to be supplied to a requester, the whole record will remain closed at the NAS.
10. Some records transferred to the Scottish Keeper will have been created by government departments or bodies which, in terms of paragraph 2(2) of the First Schedule to the 1958 Act, are wholly or mainly concerned with Scottish affairs or carry their activities wholly or mainly in Scotland and such records are outside the scope of that Act. The main examples are the Scotland Office and the Commissioners of Northern Lighthouses. In these circumstances, closed records transferred to the Scottish Keeper shall, under the terms of the arrangements set out in this Annex, be dealt with on the basis that they are held on behalf of the authority concerned for the purposes of the UK FOI Act. The Scottish Keeper will pass any requests for access to these records to the authority concerned for them to deal with under the UK FOI Act.