Retention and Disposal Policy

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1 Retention and Disposal Policy Revised: Dec 2010 Approved: Dec 2010 Reviewed: Aug 2012 Updated: Dec 2013 Due for review: Dec

2 Contents Introduction... 3 Statutory Obligations... 3 Legislative considerations and models of best practice... 3 SPSO casework retention and disposal periods... 4 Other records... 5 Disposal... 5 Transfer of records to National Archives of Scotland (NAS)... 5 Monitoring and review... 6 Annex 1: National Archives Records Management: Retention Scheduling... 7 Page 2 of 12

3 Introduction The SPSO recognises that its administrative records are a unique and irreplaceable resource. The effective management of our records, regardless of format, is essential in order to support our core functions, to comply with legal, statutory and regulatory obligations, and to demonstrate transparency and accountability to all its stakeholders. The SPSO Records Management Policy sets out a commitment to the development of an efficient and effective records management system. Crucial to the success of the policy is the development and implementation of a retention and disposal schedule. This retention and disposal policy aims to support the development of greater control over the records created by the SPSO. It will enable the SPSO to dispose of records promptly when they cease to be of any continuing administrative/legal value and will identify records which should be retained because of their long-term historical/research value. Statutory Obligations There are various acts of legislation which require an organisation to have in place secure, robust and effective records management systems. The relevant pieces of legislation, along with best practice models and peer practice, form the basis for this policy. Some of the key Acts to note are: Public Records (Scotland) Act 2011 Medical Act 1983 (and subsequent revisions) Data Protection Act 1998 Freedom of Information (Scotland) Act 2002 Prescription and Limitation (Scotland) Act 1973 Human Rights Act 1998 Health and Safety at Work Act 1974 Sex Discrimination Acts 1975 and 1986 Race Relations Act 1976 Value Added Tax Act 1994 Electronic Communications Act 2000 Legislative considerations and models of best practice Freedom of Information (Scotland) Act 2002 (FOISA) and Data Protection Act 1998 have provisions entitling individuals to request information that is held by SPSO, but do not oblige the SPSO to keep information longer than is required for its purposes. In Schedule 1 Part 1 of the Data Protection Act 1998 the 5 th principle states that 'personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.' These Acts, therefore, do not determine standard retention periods, but, with the exception of the 5 th principle of the DPA, information that has been requested under FOISA or DPA but withheld by SPSO should not be destroyed until the time allowed for the requestor to request a review and/or appeal has lapsed. The Scottish Public Services Ombudsman Act 2002 does not determine specific periods for retaining case-related information. It does state that 1 'The Ombudsman must not consider a complaint more than 12 months after the day on which the person aggrieved first had notice of the matter complained of, unless the Ombudsman is satisfied that there are special circumstances which make it appropriate to consider a complaint made outwith that period' This statement provides a benchmark upon which to base the SPSO retention periods. 1 Scottish Public Services Ombudsman Act 2002, section 10(1) Page 3 of 12

4 The National Archives and National Archives of Scotland have developed Codes of Practice in line with the Freedom of Information (Scotland) Act In the Records Management: Retention Scheduling, 7. Complaints Records, Section 3.1 states: 'The retention of records relating to complaints should be considered in the light of business requirements, taking account of the cost of retention and the use of the records in the future.' The Code requires policies to be in place on Retention, Disposal, Transfer and links to the Business Continuity Plan. In the absence of prescriptive legislation and regulations, the overriding determinant is what suits the business requirements of the organisation. Determining this, however, is not necessarily straightforward. An additional consideration is that long retention periods of paper files is a costly and ineffective way to manage casework knowledge and could be seen as a contravention of DPA 5 th principle if retention serves no business purpose. There are, however, cross referencing benefits to retaining some case information such as referencing multiple complaints by a complainant, linked complaints, and tracking complaint trends. This is achieved to a great degree by retaining the case header for each complaint in electronic form. SPSO casework retention and disposal periods Following consideration of the existing legislation, peer practice and business requirements of SPSO the retention and disposal times for SPSO casework is approved as follows: Reports SPSO Reports laid before the Scottish Parliament are published and kept by the SPSO and the Scottish Parliament indefinitely in electronic form. Individual reports are also held by the complainant and Bodies under Jurisdiction. Physical casework file: The physical casework file is retained for 24 months after the last activity date. The file is then destroyed. Sensitive material, such as medical records and social work files, will be separated from the casework file and destroyed before storing the case file in the office archive, usually three months after the last activity date. Intelligence reports provided to us by the Scottish Prisons Service, in the course of an investigation are destroyed on the issue of the decision on the case. Electronic casework file: The electronic documents relating to the case file are permanently deleted after three years with no activity after last activity date. Except for surname and postcode, all other personal data (first name, address, telephone, ) electronically stored on the case file for the complainant, aggrieved and interested party is anonymised after three years with no activity after last activity date. All other information contained in the fields of the electronic case is retained indefinitely. Notes: Last activity date is calculated from the most recent of either: o case closure date, o decision review closure date, o post activity closure date, or o service delivery complaint closure date. 2 Freedom of Information (Scotland) Act Code of practice on Records Management. Prepared in consultation with the Scottish Information Commissioner and the Keeper of the Records of Scotland. Laid before the Scottish Parliament on 10 th November 2003 pursuant to Section 61(6) of the Freedom of Information (Scotland) Act November Page 4 of 12

5 The Ombudsman and management reserve the right to identify any case where the information is to be retained beyond the recommended period. Corporate services will implement a monthly process for retaining and destroying records. This will be supported by the electronic case handling system (WorkPro) through: identifying cases due for disposal according to the policy; highlighting which files are currently subject to ongoing activity, such as FOI/DPA requests, review of decision requests, service complaints; and recording all files disposed. Details recorded include: case reference number; complaint's surname; authority; closure reason; confirmation that the case has been disposed and date of disposal. Other records The SPSO creates and receives a variety of records which are necessary for the carrying out the business of SPSO which are subject to more specific controls and regulations than is the case with complaints records. See Annex 3 for the table of retention periods for these records. Organisations do not have any discretion over the retention period for many types of record as the legislation dictates the required period. The table is based on the recommendations from the National Archives as referred to by The National Archives of Scotland. The schedules produced by the National Archives are for guidance and are not legal advice but, since they are based on legislation, deviation from them should only take place after careful and considered deliberation. Disposal Secure arrangements for the disposal of materials need to be in place. The following processes will be involved: identification of list of eligible records to be disposed according the archiving policy as agreed by the Ombudsman, ensuring precedents and other material for longer term retention are removed for secure storage; secure disposal of material in accordance with agreement with contractor; and updating and secure storage of disposal file. Transfer of records to National Archives of Scotland (NAS) The NAS has arrangements with a number of organisations to receive their records and make them available to members of the public, normally after a defined period of time. Some information related to cases closed by the predecessor Ombudsmen is retained by NAS. All SPSO reports laid before Parliament are routinely preserved by the Scottish Parliament and by the SPSO with access to the public. Therefore, there is no requirement for NAS to retain SPSO records. Roles and Responsibilities The Ombudsman has overall responsibility for ensuring that the Office complies with the requirements of legislation affecting the management of records, and with any supporting regulations and codes. The Director is responsible for: Ensuring that the Records Management Policy is implemented effectively; The provision of record management guidance to staff; Producing procedures documenting all necessary record management arrangements; Page 5 of 12

6 Regularly reviewing and where necessary amending record management policies and procedure statements; Making recommendations to the Senior Management in relation to changes or improvements; and Liaising with the Public Record Office to ensure that the Office complies with NIRMS (Northern Ireland Records Management Standard). Line Managers are responsible for: Ensuring that the agreed records management policy and procedures are fully observed and implemented within their area of responsibility; Ensuring that all staff within their area of responsibility receive the appropriate training. All members of staff are responsible for: Documenting their actions and decisions, and for maintaining the records in accordance with the SPSO s agreed policies and practices. Monitoring and review The archiving policy will be reviewed every 12 months or as legislation or policy change dictates. Page 6 of 12

7 Annex 1: National Archives Records Management: Retention Scheduling Last updated Complaints Records 1 Introduction 1.1 This guidance is aimed at Departmental Record Officers and staff in departments and agencies who deal with customer care and handle complaints about their organisation and its work. It reflects the current (2001) state of the law and best practice but does not represent legal advice. The Public Record Office (PRO) will endeavour to update the guidance in the light of changes in the law but responsibility for checking on more recent enactments rests with the reader. 1.2 The Government believes that the proper handling of complaints is central to its programme to modernise and improve public services. Complaints handling has to be built into an organisation's corporate and strategic plans, and covered in annual reports. The Freedom of Information Act 2000 includes a duty on all public authorities to publish their complaints procedures. 1.3 A complaint may be defined as "any expression of dissatisfaction that needs a response". It may be about service delivery or policy or maladministration. Detailed guidance on dealing with complaints is part of the Government's Service First programme and can be found at 2 Scope and Nature of the Records 2.1 The scope of complaints records may embrace three areas: internal complaints procedures independent complaints reviews complaints handled by the Parliamentary Ombudsman The last of these are not public records but may be copied to departments for information. The Parliamentary Ombudsman recognises that exchanges of correspondence between his Office and public record bodies investigated (including final results reports) become public records and may be available under the Public Records Acts. Some departmental papers may also have been prepared to answer enquiries or investigations from the Ombudsman. 2.2 Complaints fall into three broad categories: against standards of service against government or office policy on maladministration Many government departments and agencies now have client charters, setting out the level of service provided. These derive from the Government's Service First programme and earlier Charter Mark programmes, and form the basis of a complaints procedure. Maladministration is a failure to deal with matters properly or fairly and may involve: failure to follow proper procedures discourtesy discrimination or injustice excessive delay not answering a complaint fully and promptly Page 7 of 12

8 failure to apologise properly for mistakes 2.3 Complaints are generally dealt with in one of two ways: locally, through sections and individual members of staff centrally, through a special section or through a named Complaints Officer or sometimes with a blend of these two local ownership and replies with clear central monitoring systems that allow the identification of areas for improvement. 2.4 Records of complaints may be arranged in one or more of several classifications: Policy and Procedure including the complaints system, checklists, publicity, helpdesk, Departmental Complaints Officer role, monitoring the system Precedents Published complaints and statistics Reports Independent reviews Case files usually divided between enquiries and investigations Surveys 2.5 Information in case records would normally comprise the name and address of the person complaining the date of receipt of the complaint (which governs target times for reply) details of the complaint, including its category (for analysis purposes) remedy being sought by the person action to be taken on the complaint The handling of some of this information is subject to the provisions of the Data Protection Act See Data Protection Act 1998: A Guide for Records Managers and Archivists (PRO, 2000). 2.6 Increasingly records of complaints are created and maintained electronically, for example recording and monitoring, producing management reports, and measuring satisfaction by questioning users and analysing questionnaires. The retention guidelines in this booklet apply to records in all formats. 3 Retention of Complaints Records 3.1 The retention of records relating to complaints should be considered in the light of business requirements, taking account of the cost of retention and the use of the records in the future. Very few of these records are likely to be selected for permanent preservation; only those relating to very significant or historical cases are likely candidates. 3.2 The schedule below shows recommended periods for the retention of the various types of complaints records: Item Disposal (maximum period) 1 Policy statements When superseded 2 System handbook/guide When superseded 3 Minutes of meetings of Complaints Committee, Service Standards Team, etc. 10 years 4 Surveys 3 years Case records: Page 8 of 12

9 5 Enquiries 3 years 6 Investigations 10 years 7 Statistical reports 5 years 8 Reports on particular complaints or on categories of complaints 3 years 9 Precedents Review after 10 years 10 Register of Complaints 10 years Reviews: 11 Correspondence and papers 10 years 12 Reports 3 years 4 Other Publications and Further Information 4.1 The Public Record Office is currently working on four main collections of records management standards and guidance which aim to promote good practice in the management of public records throughout all stages of their life cycle: 4.2 Record Keeping This series includes standards on particular aspects of records management and also publications covering general records management principles. Current material forming part of this series is: RMS 1.1 File Creation [1998] RMS 2.1 Tracking Records [1999] RMS 3.1 Storage of Semi-Current Records [1999] RMS 3.2 Business Recovery Plans [2001] Human Resources [1999] Information Surveys [1999] Management, Appraisal and Preservation of Electronic Records (in two volumes - Principles and Procedures) [1999] Developing a corporate policy on electronic records [2000] Good practice in managing electronic records using Office 97 on a local area network [2001] 4.3 Acquisition and Appraisal This series contains publications relating to acquisition and disposition, retention scheduling and operational selection policies. Current material in this series is: Acquisition and Disposition Policies RMS 5.1 Disposal Scheduling Retention Scheduling: 1. Buildings Records [1998] Retention Scheduling: 2. Personnel Records [2000] Retention Scheduling: 3. Accounting Records [1998] Retention Scheduling: 4. Health and Safety Records [1999] Retention Scheduling: 5. Contractual Records [2000] Retention Scheduling: 6. Project Records [2001] Retention Scheduling: 7. Complaints Records [2001] Selection of Case Files: Sampling Techniques [2001] Operational Selection Policies [ ]: OSP 1 Department of the Environment OSP 2 The Crown Estate OSP 3 Industrial Policy OSP 4 Use and Conservation of the Countryside for Recreational Purposes OSP 5 The Administration of Social Security Page 9 of 12

10 4.4 Access OSP 6 Records created by and relating to Coroners OSP 7 The Welsh Office OSP 8 The Security Service 1909 OSP 9 Fiscal Policy OSP 10 Nature Conservation in Great Britain OSP 11 Nuclear Weapons Policy Developing an inventory of electronic records [2000] Evaluating information assets: appraising the inventory of electronic records [2001] This series provides guidance on access, freedom of information, data protection and similar issues. Publications currently forming part of this series are: Access to Public Records [1999] Data Protection Act 1998: A Guide for Records Managers and Archivists [2000] 4.5 Preservation This series covers guidance on the preservation of records and the preparation of records for transfer to the Public Record Office, including their cataloguing, packing and labelling [series under development]. 4.6 Further information on these and other aspects of the management of public records can be obtained from: Records Management Department Public Record Office Kew Richmond Surrey TW9 4DU tel: fax: e mail: Page 10 of 12

11 Annex 2: Comparison table of Ombudsmen and other organisations Retention periods for complaints in other organisations Organisation Inquiries Cases assessed (screened) but not proceeded with Parliamentary & Health Ombudsman Northern Ireland Ombudsman Commission for Local Administration in England Housing Ombudsman Service General Medical Council National Archives Guidelines Office of the Scottish Information Commissioner (May 2009) 3 years from date raised Destroy after 2 years 10 years from date raised 3 years after the date of closure of the file. 14 months Investigations 10 years from date raised 3 years after the date of closure of the file. 14 months (closed files) (closed files) 3 months 6 months after landlord complies in full 6 months if closed immediately. Otherwise 3 years 10 years if doctor not guilty of SPM 4 50 years if doctor guilty of SPM 3 years 10 years (maximum) (maximum) OSIC Records Area Official records Electronic Assessment & Investigation case files Paper Assessment & Investigation case files Assessment report Decisions Practice recommendations Judicial review Enforcement Notice Decisions Comment Some exceptions to destruction. Nos. 1-50; precedents; specials and significant action in last year Precedents review after 10 years Retention Period 5 years 3 months Permanent preservation Permanent preservation Permanent preservation tbc Permanent preservation Permanent preservation 4 Serious Professional Misconduct Page 11 of 12

12 Annex 3: SPSO Non-complaints records retention periods CATEGORY TYPE RETENTION PERIOD LEGISLATION/GUIDANCE Personnel Advertising Filling + 6 months Race Relations Act 1976; Sex discrimination Act 1975 & 1986; Disability Discrimination Act 1995 Successful applicant Transfer to staff file Race Relations Act 1976; Sex discrimination Act 1975 & 1986; Disability Discrimination Act 1995 Unsuccessful applicant Filling of vacancy + 6 months Race Relations Act 1976; Sex discrimination Act 1975 & 1986 Staff files Termination + 6 years Prescription and Limitation (Scotland) Act 1973 Salary advices Current financial year FSA years Pension records 72 years or 5 years from last action Retention Guidelines for Local Authorities. 5 Financial Annual accounts Permanent Retention Guidelines for Local Authorities. Annual budget Permanent Retention Guidelines for Local Authorities. Orders Creation + 6 years VAT Act 1994 Delivery & goods Creation + 6 years VAT Act 1994 received Health & Safety Risk assessment Review + 3 years Health & Safety at Work Act 1974 and associated regulations Control of hazardous File closure + 40 years As above substances Accident books Completion of book + 3 As above years Contracts etc End user requirement 6 years National Archives 6 Statements of interest 1 year National Archives Agreed specification 6 years from end of National Archives contract ITT 6 years National Archives Evaluation of tender Successful tenders 6 years after end of contract National Archives Prescription and Limitation (Scotland) Act 1973 Unsuccessful tender 1 year National Archives Signed contract 6 years from end of National Archives contract 7 Record of complaints 6 years from end of National Archives (about contract) contract Insurance policies Termination + 6 years Prescription and Limitation (Scotland) Act 1973 Insurance claims Termination + 6 years Prescription and Limitation (Scotland) Act 1973 General Policy statements Until superseded National Archives 5 Records Management Society. Retention Guidelines for Local Authorities National Archives. Records management: retention scheduling 5. Contractual Records. 7 It is suggested that contracts worth less than 5000 should not be kept for more than 2 years. It is also said that contracts for services should be retained for two years after the last payment Page 12 of 12