Information on statutory obligations
Records that are subject to the Public Records Act retain their legal status during a Machinery of Government (MoG) change, only the body holding the public records changes.
The statutory obligation to transfer records for permanent preservation, under the guidance and supervision of the Keeper of the Records, extends to records that are acquired by the Crown due to MoG changes. These records are brought within the statutory definition of public records under the Public Records Act schedule 1 paragraph 2.
Under FOIA Code of Practice Section 46 section 2.2.3, 2.24, and 2.3.4, it is the responsibility of both transferring and receiving bodies to ensure that information assets remain unchanged in terms of their technical, contextual and content aspects. These should be proactively managed through a MoG change.
What is a Machinery of Government change?
A Machinery of Government change is a transfer of functions either:
- Between ministers in charge of departments or other Cabinet Ministers, or;
- Between a minister and a non-departmental public body (NDPB).
It can affect functions carried out by the minister’s department or a public body such as an executive agency under the minister’s control, or by other public bodies. The transfer of a function usually takes effect immediately following a statement to Parliament announcing the MoG change.
Other organisational change
There are occasions where organisational change occurs which is not technically a MoG change – for example where work, a function, or resource transfers to another department. Such changes are usually agreed by relevant permanent secretaries, although in some cases ministerial approval or legislation may be required.
Further information on how organisational change can impact the status of records can be found under the ‘Information on statutory obligation’ section in this guidance.
Guiding principals
In a MoG or any other organisation change, the aim is for the right information and records to be transferred to the right place and for them to be usable.
The planning and execution of MoG changes should adhere to the principles of value, integrity and accountability set out in the Section 46 Code of Practice on the Management of Records published under the Freedom of Information Act 2000 (S.46 Code of Practice).
This allows organisations to:
- Comply with legislation
- Improve efficiency and save money by ensuring that only relevant information is transferred
- Safeguard the public record, ensuring it remains available for future use and re-use
- Support ongoing policy making and the delivery of public services
Organisational change is both a catalyst and opportunity for better information and records management practices. When approaching the change, it is important that both the receiving and transferring organisations:
- Treat MoG change as a shared project, rather than two separate tasks, approaching it as an opportunity for transparency and co-operation
- Identify and act upon opportunities to manage and transfer both knowledge and information
- Identify early in the process which records should follow a transferred function
- Give regard to all formats of information, including non-corporate communications
- Document their processes for accountability and transparency
Organisations should consult The National Archives via the Government Help Point for guidance and support when managing their records as part of a MoG change.
Information on statutory obligations
The Public Records Act 1958
The Public Records Act exists to safeguard the public record, ensuring it remains available for future generations. It applies to all formats of records that convey information, such as paper records, digital records, websites, social media channels and non-corporate communications.
This PDF offers specific guidance for non-corporate communications.
Guidance for Ministerial Private Offices can be found on this webpage.
There are two key aspects of the legislation to understand concerning the status of the records of a department undergoing a MoG or organisational change:
- Public records do not cease to be such because the status of the body holding them changes.
- Records acquired by the Crown because of MoG changes into Departments will be brought within the statutory definition of Public Records in Paragraph 2 of Schedule 1 of the PRA.
The National Archives should be contacted via the Government Help Point for advice in cases where there is uncertainty over the status of records.
Ordinarily, organisations would make decisions on the selection, retention and transfer of their records in line with the 20-year rule timeframe. However, a MoG change is often a trigger for decisions to be made earlier than the statutory 20-year timeframe.
Pro-active decision making by the transferring organisation – who are best placed to understand their structure, content and value – allows for the records to be managed throughout the MoG change in the most organised and cost-effective manner. Management of the records could include transfer to the importing organisation, transfer to an archive or destruction/disposal in line with the requirements of the S.46 Code of Practice.
Further information can be found on our legislation and regulations webpage.
Freedom of Information legislation and Environmental Information Regulations
For Freedom of Information (FOI) purposes, once a function has been transferred, records still held by the transferring organisation are considered to be held on behalf of the importing organisation.
Under the S.46 Code of Practice, organisations should ensure that they are able to transfer both technical and contextual information to a successor organisation and, if selected for permanent preservation, to an archive.
The ability of organisations to manage and transfer information is easier if they follow the S.46 Code of Practice. The National Archives can provide an information management assessment (IMA) for organisations transferring records following MoG changes. Undertaking this assessment will help with planning and support the management of information that is being transferred between organisations and/or to The National Archives.
For more information on the IMA please contact the Government Help Point.
There is guidance on organisational change published by the ICO at: How to comply with your information request obligations at a time of organisational change
Further information can be found on the Freedom of Information Act webpage.
Copyright and licencing
Organisations create intellectual property rights (IPRs), including copyright and database rights within their records and information.
The ownership of these IPRs is determined by an organisation’s status. If the organisation is a Crown body, then copyright works and database rights created by its officials will be owned by the Crown (HM King) under the Copyright and Rights in Databases Regulations 1997. The Keeper of Public Records holds and manages Crown copyright and database rights on behalf of the Sovereign, by letters patent. The copyright and licensing webpage provides further information on how licensing arrangements for Crown copyright can be affected by MoG changes.
If a non-Crown organisation is being absorbed by a Crown body (e.g., its parent department) then the assignment of the absorbed body’s IPRs to the Crown should be considered.
If a Crown organisation is having its status changed (for example, a departmental function is being transferred into a non-departmental public body) then assignment away from the Crown must only be contemplated in exceptional cases. In most cases, any existing IPR should remain with the Crown.
In the case that assignment (or in Scotland, assignation) away from the Crown is being considered, contact The National Archives Copyright Team for initial advice. Help will be provided to viable cases for assigning copyright to or from the Crown. Information can also be found on the copyright assignments webpage.
For handling other types of IPRs than copyright and database rights, consult your Knowledge Asset, IP Lead or legal advisers.
Risk management
Both organisations must understand the risks of losing vital information and put measures in place to mitigate those risks:
Legal risks
- Both the transferring and receiving organisation create legal risk if they fail to comply with information legislation, such as the Public Records Act, Freedom of Information Act, Data Protection legislation, S.46 Code of Practice and guidelines on data handling.
- The importing organisation may not have the rights to use and re-use the transferred information.
- The importing organisation may be unable to account for their decisions, past actions or provide evidence to an inquiry or to demonstrate the authenticity of their information.
Corporate risks
- Vital operational records could be lost or corrupted and the importing organisation may be unable to locate or access the information they need to carry out their business effectively.
- Vital administrative records may be lost or corrupted (such as pension records) which are often required many years later.
- Time and resources may be wasted transferring or storing information that is no longer required.
Risks to the administration of government and parliamentary business
- Disruption to policy making and service delivery.
- Failure to safeguard the public record, reducing public trust in government and its institutions.
- Disruption to the functioning of ministerial private offices, for example ministers may fail to answer parliamentary questions accurately if the relevant records are not accessible as they have not been transferred.
- The progress of legislation going through Parliament could be disrupted or delayed.
- There could be disruption to select committee and other inquiry hearings
Information Security risks
- The importing organisation does not have the necessary accreditation, infrastructure, procedures and policies in place, or the capacity to hold and protect the material.
- There is insufficient assurance that commercial and other partners follow the same principles and practice.
MoG governance, processes, and change management
Every MoG change is different. Both the transferring and receiving departments are likely to need support to manage the transition, which can be complex.
Departments should contact The National Archives via the Government Help Point for advice and guidance as early as possible in the process.
Departments must consider the implications for information management when undertaking MoG and organisational change by:
- Ensuring that the governance mechanisms set up to oversee the MoG change have explicit provisions for information management
- Assessing S.46 Code of Practice compliance and addressing gaps and ensuring resources are in place, especially for new bodies
- Ensuring digital continuity and record integrity, including preservation of context and metadata
Governance and team structure
The National Archives recommends that the MoG programme team establishes a governance group made up of staff from both the transferring and receiving organisation. This will help manage the handover of information and records by working closely with the overall project management team. The team should include:
- Departmental Record Officers (DROs), records managers, and knowledge and information management staff
- Internal and external IT personnel
- Information security teams
The scale of this work should not be underestimated; adequate budgetary provision must be made by both organisations to support the transfer of records until full completion.
Responsibilities of the Joint Information Management team
The joint team should:
- Identify and arrange the transfer of relevant paper and digital records – this may also include records held on non-corporate systems.
- Ensure the transition of informal knowledge.
- Document all decisions and processes related to information management consistently and thoroughly.
- Seek expert advice from legal teams and the Information Policy team at The National Archives via regarding the legal status of information being loaned or transferred beyond a Crown body.
- Use existing knowledge management tools (e.g. staff directories, intranets) to support continuity and ease the transition.
Compliance with S.46 Code of Practice
Before implementing MoG changes, both the transferring and receiving organisations must ensure their information management practices comply with the S.46 Code of Practice.
Each organisation should carry out a recent compliance check using the S.46 Self-Assessment Tool provided by The National Archives.
Understanding compliance risks is critical ahead of MoG implementation, as these risks may be amplified during the transition, with potential negative impacts on the integrity of public records and the accountability of both the transferring and receiving organisations.
The self-assessment tool provides a rapid evaluation to help identify gaps and inform planning. Any gaps in compliance should be addressed or formally recorded as risks in the MoG project risk register.
For newly established bodies, the assessment supports the clarification of responsibilities, the establishment of governance, and the strengthening of control over the information management environment.
If the receiving organisation does not have a DRO or equivalent role, one must be created and appropriately resourced to meet the expectations of the S.46 Code of Practice.
For more information on the assessment and support:
Digital continuity and record integrity
Digital record integrity is at risk when transferring records between systems or organisations. Departments must ensure that:
- Records and their technical/contextual metadata are transferred with their integrity preserved.
- Digital continuity is upheld so that information stays complete, accessible and usable as required.
For more information, contact the Government Help Point.