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Public Records (Scotland) Act 2011


Title: Slide 1 Author: GCC Last modified by: K Meechan Created Date: 8/12/2011 8:42:28 AM Document presentation format: On-screen Show Company: GCC Other titles – PowerPoint PPT presentation

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Title: Public Records (Scotland) Act 2011

Public Records (Scotland) Act 2011
Contracting out services, the quality of
record-keeping and accountability Dr Kenneth
Meechan Head of Information Governance Glasgow
City Council Glasgow, 7 December 2012
Contracting out services record keeping and
  • Back to Shaw
  • The contractor landscape
  • Legal requirements for 3rd sector and private
  • Addressing the issues in procurement
  • Model contract clauses
  • Model guidance for contractors

Back to the Shaw Report
Shaw said this residential services provided
to children between 1950 and 1995 were extensive
and extremely complex. Hundreds of children's
residential establishments existed, with many
places changing function, location and management
at various times or closing down Shaw Report,
chapter 5 section 2
Contractor landscape
  • Present situation not necessarily any less
  • Private and voluntary organisations remain major
    players in childrens residential care and other
    areas where public records are created
  • Decades of outsourcing and alternative service
    delivery models mean that many activities
    previously see as core public functions are now
    delivered by bodies not subject to PRSA
  • Glasgows ALEO model is atypical our ALEOs are
    (almost all) subject to FOI most are not

The PRSA response to this issue
2 (1)The authorities to which this Part applies
are the bodies, office-holders and other persons
listed, or of a description listed, in the
schedule 3 (1) In this Act, public records, in
relation to an authority, means (b) records
created by or on behalf of a contractor in
carrying out the authority's functions, (c)
records created by any other person that have
come into the possession of the authority or a
contractor in carrying out the authority's
functions. (2)In subsection (1) contractor, in
relation to an authority, means a person to whom
functions of the authority are delegated (whether
under a contract or otherwise) by the authority.
The PRSA response to this issue
  • What this actually means
  • Listed public authorities records management
    plans need to address management of public
    records created by (or which pass into the
    custody of) the authoritys contractors
  • Not all records created by contractors will count
    as public records so a degree of appraisal will
    be required
  • Obligations on the authority under the Act need
    to be transferred to the contractor by contract

The PRSA response to this issue
Direct impact of the PRSA on contractors
this space is intentionally blank
The PRSA response to this issue
  • Problems with this approach
  • Presumes sufficient negotiating strength on the
    part of the public sector purchaser
  • Takes no account of costs which the contractor
    will inevitably seek to pass on to the purchaser
  • Survivorship of records not covered by the Act
    (e.g. on contractor being dissolved)
  • even if the public sector purchaser includes
    something in the contract, this is likely to be
    ineffective on dissolution

The PRSA response to this issue
  • Contractor dissolution in Glasgow in recent
    years -
  • The Southern Cross debacle has resulted in
    ownership and management of around eight care
    homes transferring
  • Another two or so have closed for other reasons
  • About eight child care bodies or nurseries have
    also closed
  • We hope the records have been passed on to
    relevant successor bodies but we dont know
  • Care Inspectorate still has a wipe the slate
    clean policy if a facility is bought over.

Whats a poor public authority to do about it?
  • Build appropriate assessments into your
    procurement practices
  • Identify which procurement exercises are likely
    to involve creation of relevant records
  • Make sure the tender documentation alerts
    potential tenderers to what you are looking for
    include some specific evaluation criteria on
    records management and score this
  • Make sure the tender returns explain their
    approach fully
  • If good RM gives people a competitive edge, we
    will get more good RM
  • Model procurement toolkit drawn up via SOLAR

And after the tendering process is done and
  • Tendering processes are useless if you dont
    follow them up with legal obligations on your
    contractor to make good on their promises
  • Model contract clauses have been agreed by the
    SOLAR data protection and FOI group, which will
    hopefully lead to some standardisation across
    public sector purchasing requirements
  • Clauses in large measure say do what you said
    you would do in your tender submission so
    robust tender evaluation remains crucial. The
    contract cannot rescue a poorly-procured service
  • And even the best contract is useless if you
    dont monitor compliance. The end of a ten year
    contract is a bad time to discover they havent
    kept any records

And for the contractors out there, a word from
our sponsors
  • SCA have usefully drawn up some simple guides
    aimed primarily at the voluntary sector
  • These focus on the elements of RM which a public
    authority is likely to be looking for the
    voluntary organisation to comply with in the
    course of tendering for work
  • The SOLAR procurement template and model clauses
    dovetail neatly with this guidance.

Accountability and contracting out services
  • Contracting out will always carry some
    controversy from the rights of hospital
    cleaners in the 1980s to the loss of FOI rights
    which is being decried at present
  • Imposing sensible RM requirements on contractors
    can go some way towards maintaining a level of
    accountability, since there should be an audit
    trail of what happened and why
  • But the backstop position remains that the public
    authorities need to monitor compliance and this
    is not necessarily a skill in great supply.