Responsibilities under legislation
What legislation is applicable to government and court records?
The National Archives Act, 1986 and Regulations, 1988 are the principle statutes applicable to the management of records of Departments of State, including their disposal or retention as archives.
The Act operates within a legal framework for the management of government records that may also include other statutes relating to areas such as Data Protection, Freedom of Information, and legislation relating to specific areas of work such as cultural heritage, social protection and tax collection, among others.
No legislation takes precedence over the National Archives Act, 1986 with regard to the management of public records, including the destruction, retention or withholding of records. Before destruction, retention or withholding of records can take place, the provisions as set out in the National Archives Act, 1986 and Regulations, 1988 must be adhered to.
What is a transferring body?
A transferring body is the Department of State, which is defined in the National Archives Act, 1986 2(2b) as any government department, court office or bodies cited in the schedule to the National Archives Act, 1986. Such bodies are legally obliged to transfer records more than 30 years old to the National Archives to facilitate public access and permanent preservation as archives.
Departmental records are defined in the National Archives Act, 1986 2(2) as any record in any form made or received, and held in the course of its business, by a Department of State, or any body which is a committee, commission or tribunal of enquiry appointed by the Government. It does not include:
- Instruments of title relating to property for the time being vested in the state, and
- Any part of the permanent collection of a library, museum or gallery.
What are the responsibilities of the transferring body?
Transferring bodies are responsible under the National Archives Act, 1986, Regulations 1988 5(4) for the arrangement, numbering, cleaning, packing and labelling of records. They are also responsible for ensuring the safe carriage of all records to the National Archives premises. This Act applies to all government departments, 61 scheduled bodies and all courts.
Can records be retained by the transferring body?
The National Archives Act, 1986 8(2) allows for the retention of records in regular use in a Department of State. A Certificate of Retention of Records, signed by the Certifying Officer in the Department, must be sent to the Consenting Officer in the Department of the Taoiseach. All Certificates of Retention of Records must be reviewed by the Certifying Officer every 5 years. Where a record that is older than 30 years old is no longer required for business use it must be transferred to the National Archives.
In some instances, it may be more appropriate to copy rather than retain records. Where a record is no longer current and is retained for business or reference use a copy of the record may suffice and the original should be transferred to the National Archives. Copies of records must not be altered in any way. No annotations or documents must be added to the record. If new documents are created, a new file must be opened.
Can records be withheld from public inspection by the transferring body?
The National Archives Act, 1986, 8(4) allows records to be withheld from public inspection if their release:
- Would be contrary to the public interest
- Would or might constitute a breach of statutory duty, or a breach of good faith on the ground that they contain information supplied in confidence
- Would or might cause distress or danger to living persons on the ground that they contain information about individuals, or would or might be likely to lead to an action for damages for defamation.
A Certificate to Withhold Records, signed by the Certifying Officer, must be sent to the Consenting Officer in the Department of the Taoiseach for approval. A Certificate to Withhold Records that is not approved by the Consenting Officer is not valid and records cannot be withheld. Any records that are withheld must be reviewed by the Certifying Officer every 5 years. If the original reason for withholding the record is no longer valid the record must be transferred to the National Archives to be released to the public.
Can transferring bodies destroy records they no longer need or use?
No. Destruction of all records is prohibited under the National Archives Act, 1986 7(1), unless permission is first granted by the Director of the National Archives, and a Certificate for the Disposal of Departmental Records issued.
This applies to the destruction of both paper records and the deletion of electronic records.
National Archives staff may need to undertake a survey of records before a Certificate can be issued.
Files scanned for access or space-saving purposes cannot be destroyed unless a Certificate for the Disposal of Departmental Records is issued.
A scanned copy of an original paper file does not constitute an original document and may have no legal standing.
Destruction of records must not take place without first contacting Archives and Government Services Division of the National Archives at email@example.com.
Are there any exceptions to this rule?
Permission is not required to destroy duplicates or printed material. Duplicates are classed as those that do not contain any annotations or information that differs in any way to the final document.
Any annotations or drafting notes listed on a document renders it an original record and it cannot be destroyed.
For further information relating to the destruction and retention of records, see Records Management Guidelines.
Still have questions?
All enquiries about the management of government records should be directed to Archives and Government Services, National Archives, Bishop Street, Dublin D08 DF85 (tel: +353-(0)1-4072300, email: firstname.lastname@example.org).
No legislation takes precedence over the National Archives Act, 1986 with regard to the management of public records. Before destruction, retention or withholding of records can take place, the provisions as set out in the National Archives Act, 1986 and Regulations, 1988 must be adhered to.