EDITORA PERU S.A.

8.1.1 Poor records management

Despite (or partly as a result of? See next section) advances in IT, management and disposal of records in accordance with good practice continues to elude numerous organisations; legal bodies are no exception. Recent research indicates that the average information worker is still wasting large amounts of time searching for documentation and manually filing (or not filing at all) both paper and electronic material.1 _{Records disposal (by which we mean either destruction/} deletion or preservation in an archives) is often left to non-professionals2 _{to undertake on top of the day job, with the} result that it may not happen at all or, if it does, will be ad hoc and often without reference to best practice. Records of value will therefore not be identified in time to save them whilst records of no value may be retained unnecessarily, resulting in excess cost and compliance issues.3

National strategies are required to seek solutions. The proposed advocacy programme with the IRMS, as well as the expected advocacy work of the Records at Risk group, should progress this goal.

8.1.2 Digital continuity and digital obsolescence

Born-digital records and problems of adaptation and continuity were a major concern of LRAR, as digital records pose a particular risk to any project seeking to rescue modern records. Most legal records of the past fifteen years or so will have been born-digital. Many larger institutions have sophisticated systems for dealing with their current digital records, but few will have been sensitive to the practical and scholarly value of those records as potential archives, which in turn means that many born-digital records will not survive to be collected by repositories. Poor recordkeeping may result in born-digital records becoming inaccessible through format change, corruption or simply losing the system manual; additionally the very lack of visibility of space issues around digital records increases their danger as many institutions simply don’t see the need to dispose of their information efficiently (including making provision for permanent retention of valuable material).

This is a records management issue but is barely on the radar of many organisations. It was far beyond the resources of LRAR to find solutions, but the project did develop some generic guidance4 _{on managing and disposing of born-} digital records and liaised with national bodies such as TNA, which is seeking to find global strategies for dealing with the problem.

8.1.3 Confusion over the disposal of records in accordance with the provisions of the Data

Protection Act and the General Data Protection Regulation (GDPR)

Archivists will be familiar with private sector organisations’ concerns over depositing personal data in repositories. At one LRAR seminar (see s.8.2) it was categorically stated by several legal practitioners that the legal requirement to keep personal data in client case files confidential supported the contention that such records could never be made available in archives. This misinterpretation of legislation requires clarification; the following recommendations on personal and confidential data may be of interest:

1 According to a recent International Data Corporation White Paper Bridging the Information Worker Productivity Gap in Western Europe: New Challenges

and Opportunities for IT (IDC, 2012), UK businesses lose an average of two hours of their employees’ working time every working day as follows:

• 57% of office workers spend an hour a day looking for missing documents • 20% have to recreate documents that they couldn’t find

• 56% of workers feel overwhelmed.

2 It may be of interest to note that in the few instances where LRAR was able to engage with legal institutions, it was usually the records manager who responded. In two cases the records managers left during the period of engagement and were not replaced; the engagement with LRAR then ceased. It should also be noted that employing professionally qualified records managers/archivists to undertake the necessary work often costs an organisation less than using other in-house employees such as paralegals and company secretaries, because archivists and records managers are no more costly – and indeed are sometimes cheaper – to employ and are often also willing to work part-time or be shared between organisations. 3 For examples see Appendix XII: Legal records – horror stories.

• At the 38th Session of the UNESCO General Conference in Paris in November 2015 it was agreed that:

Where restrictions to accessing documentary heritage are necessary to protect privacy, human safety, security, confidentiality or for other legitimate reasons, they should be clearly defined and stated and be of limited duration. They should be underpinned by appropriate national legislation or regulation by including an appeals mechanism against such decisions.5 • The ICO has advised that Article 5 of the GDPR states:

Personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes.6

• The UK Secretary of State for Digital, Culture, Media and Sport responded to a parliamentary question on 3 November 2017 as follows:

The General Data Protection Regulation (GDPR) and the Data Protection Bill permit such organisations to process personal data (including sensitive personal data) without consent, where necessary for ‘archiving purposes in the public interest’, subject to appropriate safeguards for the rights and freedoms of data subjects. It also exempts archiving services from complying with certain rights of data subjects (for example, rights to access, rectify or erase their data), where the exercise of such rights would seriously impair or prevent them from fulfilling their objectives.7

8.1.4 Lack of available archive repositories

In the current economic climate all archives, whether public or private, face severely reduced resources combined with competing demands for funding within their parent organisations. This in turn reduces their ability to proactively collect and make available for research records which do not fit exactly into their collections policies (and even some which do; see below). Current economic restraints have the further effect of stymying initiatives to set up new archives. With specific reference to legal records, it was found that:

• The only archives in the UK dedicated to collecting a specific category of legal records, the Records of Legal Education Archives at IALS, did not have the capacity or the intention to expand its collections remit to take in categories of ‘legal’ records other than those specialised to legal education and might not in the current economic climate even be able to accept records from new legal education bodies.

• The Law Society Library, which holds the corporate archives, restricts its collections to TLS and SRA publications, ephemera and minutes and agenda papers from the Council, Boards, and selected policy making Committees; at the time of writing it has no capacity to retain born- digital records.8

• The Inns of Court archives, while still capable of receiving deposits of the business records of the Inns, are not able to expand their remit to include the records of individual barristers or barristers’ chambers. This is, again, a resource issue, as all the Inn Archivists, when asked, expressed a desire to collect such records were they to have the capacity.

• HE archives may take in the papers of a legal professional or institution associated with the university, but the process is ad hoc and dependent on capacity and perceived relevance of the collection to the university’s own interests.

5 UNESCO: ‘Documentary Heritage in the Digital Era’, Resolutions of the 38th _{session of the General Conference (Nov 2015), 38 C/Resolutions Annex}

V S 3.5, p.165 https://en.unesco.org/programme/mow/recommendation-documentary-heritage.

6 ICO, Guide to the General Data Protection Regulation (2018) https://ico.org.uk/for-organisations/guide-to-the-general-data-protection- regulation-gdpr/principles/?q=research.

7 Archives: Public Interest: Written question – 111381 (2017) https://www.parliament.uk/business/publications/written-questions-answers- statements/written-question/Commons/2017–11–03/111381/.

8 According to the latest published version (2012) of its Corporate Archive Policy; see http://www.lawsociety.org.uk/support-services/library- services/corporate-archive/.

8.1.5 Reduced archival resources to collect records of London-based private sector

organisations

The one public sector archives in London which is actively interested in collecting records of London-based institutions of both local and national significance (including legal), the LMA, has only limited resources to pursue this goal. The LMA, like every public sector archives, is suffering from reduced resources and is unable to proactively seek to rescue records at risk. As an example, a list of 49 London-based legal institutions9 _{sent to LMA on 19 October 2017 by LRAR} elicited the response that it had had contacts with none of the bodies listed except one of the law firms. Most of these institutions are current concerns; it is unlikely that LMA would have the resources to enter into ongoing records deposit agreements with all of them, even assuming they were willing to archive their records.

8.1.6 Lack of archive facilities to accommodate the records of institutions and individuals

which have national significance, but which are physically located outside Greater London

There are many legal institutions and practitioners based outside London in this category but local authority archives will only collect records of relevance to their geographical area. This means a lack of provision for:

• Records of organisations located outside Greater London with a national or international focus. • Records of individual legal practitioners and other professionals connected with the law who

live/lived outside London but whose collections spread across county boundaries or have a national or international focus.

• Records of organisations which have moved to other areas or merged with organisations physically located in another area.

This issue is being, and will continue to be, raised at future meetings with the Records at Risk steering group, on which LRAR is represented (see Chapter 9) to seek solutions and will also be a major focus of any future Legal Archives Trust. Some university archives and other specialist repositories (notably the RLEA at IALS) have collected records in the above category but may be unable to continue due to reduced resources.10 _{It is beyond the scope of this project to} approach every HE and specialist archives to clarify its collections policy and identify legal records of relevance to that organisation’s interests which may be at risk and encourage deposits; the Records at Risk group and/or a Legal Archives Trust might be able to undertake this task.

8.1.7 The reduced ability of all UK archive repositories, public and private, to proactively seek

to collect records due to drastically curtailed resources

Almost all repositories contacted advised that they face not only severely curtailed resources but reduced support from their management for collection of material outside their immediate remit. Unless the current economic climate changes it is unlikely that this obstacle will be overcome in the near future.11 _{Most archives are now only able to respond} reactively – if at all – when they discover that records are at imminent risk of destruction or sale to an outside bidder, by which time it may of course be too late. It should be pointed out, however, that all local authority archives contacted stated that they would continue to seek to collect private sector records despite reduced resources.

They did, however, express the opinion that the private sector should take more responsibility for the long-term care of its own records. TNA’s 2017 Understanding Collections at Risk report suggested one route:

A new concept being developed at TNA is that of ‘emerging archives’… collections which will remain with their parent organisation, which will benefit from advice on good practice, development and funding and possible partnerships.12

9 Included in a list of private sector legal institutions whose records might be at risk at Appendix III.

10 Examples include UCL Archives, which has in the past collected the records of the British Maritime Law Association, but is now unable to accept further accruals (email to from the Head of Archives, 22 Nov. 2017) and LSE Library, Archives and Special Collections, which will no longer continue to collect records of mediation organisations (advised at meeting with LRAR project Director, 27 Apr. 2018); both due to changes in their collections policies.

11 One county archivist advised (email to LRAR, 17 Nov. 2018): ‘We have undertaken some more systematic surveys [of records potentially at risk] in the past…However we haven’t had the resources to carry out similar exhaustive surveys in recent years, chiefly because outreach and engagement activities are now a much greater part of our work than they were in the 1970s and 1980s and because the amount of new material coming in unsolicited, from new and existing depositors, is as much as we can handle generally. We now routinely ask depositors for voluntary donations towards the cost of processing their records although most do not respond. Given the financial climate, were we to embark on a survey of a particular type of record we would certainly emphasise the need for depositors to contribute to the cost of care of their records.’

This recommendation chimes with the growing feeling amongst archivists13 _{that profit-making institutions in particular} (such as large London and regional law firms) should invest in their own in-house archives rather than expect the taxpayer to subsidise their recordkeeping (or sort out the lack of it), yet, almost unbelievably, LRAR has been unable to identify one major law firm with a professionally managed in-house archives open to the public as a matter of course. This contrasts sharply with the practice of most of the major UK banks, other commercial enterprises and membership organisations which have set up in-house archives, viewing them as a business benefit, and made the records available to researchers.14

What we currently have is a chicken and egg situation. It is pointless for LRAR to approach archives to collect the records of legal institutions if the institutions themselves will not engage with us. It is equally pointless to approach legal institutions unless we are confident that there is a repository ready to take in their records. Furthermore, archives now expect private sector institutions to manage their records better, both before and during deposit, and to accept some financial responsibility for records preservation; there is little evidence that this expectation will be met by legal institutions.

8.1.8 The changing role of the BRA and its Records Preservation Section (RPS)

The changing role of the BRA, especially the RPS, is certainly a major factor affecting the rescue of private sector records, primarily legal records such as deeds. For over fifty years the RPS has acted as a warehouse and sorting facility for records, the majority of which were passed to the RPS by law firms, prior to transfer of those records to archive repositories. This storage, listing and archive transfer service was provided free of charge to organisations wishing to get rid of unwanted records. Due to changes in the economic climate15 _{a professional service could no longer be} provided and in 2016 the BRA decided the RPS could no longer continue to act as a storage and distribution hub.16 Over 2016 and 2017 LRAR and the BRA collaborated on drafting new procedures and processes in the hope that the RPS (with LRAR’s assistance) would be able to act as a broker between private sector organisations and individuals wishing to deposit records with archives. LRAR accordingly referred a number of would-be depositors to the BRA during 2016–27.17

In 2018 the Chair of the RPS advised that continuing lack of resources meant it was unable to provide the proposed brokering service and now saw its role as comprising a first point of contact hub, giving guidance to enquirers on where and how to seek assistance in managing and disposing of records. The BRA is hoping that the new Records at Risk group will provide a more proactive service than the BRA can now provide. In the interim it is probably inevitable that some significant legal records will be lost.