Scottish Government records management plan

Element 15: Public records created or held by third parties

Adequate arrangements must be in place for the management of records created and held by third parties who carry out any functions of the authority.

Section 3 of the Act describes the meaning of 'public records' for the purposes of the Act. It says that public records in relation to a named authority means records created by or on behalf of the authority in carrying out its functions. This is extended to records created by or on behalf of a contractor carrying out the authority's functions and includes records that have come into the possession of the authority or contractor in carrying out the authority's functions. Records created or held by a third party contractor that are not done so in relation to that contractor carrying out the function of the public authority are not public records under the Act.

An authority's plan must include reference as to what public records are being created and held by a third party carrying out a function of the authority and how these are being managed to the satisfaction of the authority. This does not mean the authority must impose its own arrangements on the third party.

Authorities should take a risk-based approach to the arrangements it puts in place with third parties to ensure that these are relevant and proportionate to the public records that fall within the scope of each contract type. Records management requirements, and evidence of assurance that prospective contractors will be able to meet these, should be included in the procurement exercise.

An authority will wish to ensure the scope of its proposed arrangements include sub-contractors. It will further wish to ensure that arrangements are in place to allow it to meet statutory obligations under other information legislation, for example, to FOI(S)A and data protection legislation (see Element 9). There may be other regulatory obligations that an authority will wish to consider in relation to the function being carried out by the third party.

Best practice might include:

• An authority will set out arrangements for managing public records created and maintained by a third party provider through the provision of adequate records management contractual clauses and monitoring procedures.
• Arrangements under procurement documentation and contractual clauses will reference contract monitoring and "end-of-contract" procedures for public records being created and maintained by third parties.
• Arrangements will provide for proper retention and disposal of public records throughout the duration of the contract.
• The authority and the third party will have a clear understanding of the public records that fall within the scope of the contract.
• An authority will be able to demonstrate its satisfaction to the Keeper that corporate and operational responsibility for records management within the third party is robust.
• Arrangements will provide for public records of enduring value and public records with on-going business value reverting to the authority on conclusion of the contract or where the third party falls.
• An authority will be satisfied that the third party keeps its records management arrangements under review.
• A public authority can demonstrate that contractors have had regard to the Guidelines for Contractors as part of the procurement exercise.

Read further explanation and guidance about element 15.

Scottish Government Statement

The Scottish Government contract some of their functions to third parties. Contracts which contain details of what should happen to information that they produce are provided on the SG website.

Evidence

E40: Scottish Government Model Framework Agreement Terms and Conditions

E41: Scottish Government Terms and Conditions 1 - conditions of contract for the purchase of goods

E42: Scottish Government Terms and Conditions 2 (SGTC2)

E43: Scottish Government Terms and Conditions 3 - conditions of contract for consultancy services (other than works consultancies)

E44: Scottish Government Terms and Conditions 4 - conditions of contract for the supply of goods (and any related services)

E45: Scottish Government Terms and Conditions 5 - conditions of contract for the sale of goods

Further Development

No further development is required at the moment but we will keep this under review.