Proposal to Halve Thirty Year Rule

January 30th, 2009 by Anya Proops QC

An official Committee headed by Paul Dacre (editor of the Daily Mail) has this week published its report on the 30 year rule. The phrase ‘30 year rule’ is commonly used to describe the point at which records created by government departments are transferred to the National Archives, and at which most of these records are released to the public. The rule must be seen as working in tandem with FOIA. Thus, many of the exemptions afforded under Part II FOIA are automatically disapplied if the information which has been requested is more than 30 years old (see further sections 62 and 63 FOIA). The Committee concluded that the 30 year rule, which was introduced by Harold Wilson’s government, is ‘anachronistic and unsustainable’ (para. 6.1 of the report). It proposes that the thirty year rule be halved to 15 years. The move to a 15 year rule, which the Committee recommends should be phased in over a period of time, would require amendments of the provisions in FOIA which deal with historical records, namely sections 62 and 63 FOIA and also of the Public Records Act 1958.

Other notable features of the report include the following:

  • On the subject of civil servants’ attitude to FOIA, the Committee noted that concerns had been expressed by both retired civil servants and those in post that early disclosure of official records may in some circumstances have a deletorious, ‘chilling’ effect on the civil service and the operation of government more generally (see paras. 5.15-5.19). However, the Committee also concluded that: Most [civil servants] have come to terms with the new FoI regime, and some argue that the prospect of early scrutiny concentrates the mandarin mind, and thus produces better argued papers and fuller record-keeping’ (see para. 5.20; see also paras. 6.6 and 6.7).  This conclusion should be compared with the position which the Government has adopted in a number of Information Tribunal cases, where concerns have been expressed that disclosure under FOIA of particular information would be likely to have a chilling effect on the activities civil servants (see further Department for Education and Skills v Information Commissioner, Department for Work and Pensions v Information Commissioner and Office of Government Commerce v Information Commissioner and O’Brien v Information Commissioner and Department for Business and Regulatory Reform).
  • In view of concerns which had been expressed about the effects of FOIA on civil servant record keeping, the Committee recommended that the Civil Service Code be revisited with a view to seeing whether it needs to be amended to include an explicit injunction to keep full, accurate and impartial records of government business (para. 8.4).
  • To avoid civil servants being unfairly criticised while they are still in post, the Committee recommended that, wherever possible, information identifying civil servants should be redacted in any disclosed records (para. 8.6).
  • The Committee also suggested that the 15 year rule may require a re-think on the approach to the disclosure of sensitive information under FOIA (para. 8.7).
  • The Committee recommended that non-political records kept by special advisors should not be exempt from disclosure under the Public Records Act or FOIA (para. 8.10).
  • It is worth noting the Committee’s analysis of the more liberal approach to the disclosure of official records which has been adopted in other countries (see para. 3.18).

The Committee’s report:

https://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

Tribunal decisions on ‘chilling effect’:

https://www.informationtribunal.gov.uk/Documents/decisions
/DeptEdandSkillsVInfoCommandTheEveningStandard19Feb07.pdf

https://www.informationtribunal.gov.uk/Documents/decisions
/DeptforWork_PensionsVInfoComm5Mar07.pdf

https://www.informationtribunal.gov.uk/Documents/decisions
/office_of_govern_commerce_v_infocomm%20_2May07.pdf

https://www.informationtribunal.gov.uk/DBFiles/Decision/i258/
O’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)
%20Decision%2007-10-08.pdf