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Published online by Cambridge University Press: 26 September 2016
This article is written by Clare Cowling, Director, Legal Records at Risk Project, Institute of Advanced Legal Studies, University of London. Her article explores the hypothesis that modern private sector legal records are more at risk of loss than their historical equivalents. There are many reasons for this, but one factor, detailed in this article, appears to be the indifference or reluctance of legal practitioners themselves. The LRAR project seeks to allay any concerns practitioners may have about confidentiality and to raise their awareness of the potential commercial and historic value of their legal records. It will do this by a combination of case studies, interviews with stakeholders and investigations into the current information management and archiving practices of institutions specialised to law. In so doing it will provide guidance and advice on the more cost-effective management and preservation of legal records so that the history of change to non-governmental legal services in the UK over the past century will be accurately documented.
1 As evidenced by the recent Hillsborough inquest findings.
2 With the exception of those records which are designated as Public Records under the 1958 Public Records Act eg those of the National Coal Board.
3 Of 34 institutions specialised to law (including 11 law firms) personally contacted to date we have had: 4 positive responses (ie a willingness to assist the project), 4 tentative responses (ie a willingness to allow further contact/provide some information), 2 negative responses (ie flat refusal to be involved) and 24 non-responses. General requests for information on specialist law listservs or via articles in legal publications have produced no response. By contrast, generic appeals to archives and research organisations listservs have produced overwhelmingly positive responses (ie offers of information/publicity/practical help).
4 Such as the Archives of the Inns of Court, the Law Society and the Records of Legal Education Archives plus a small number of law firms which maintain in-house archives for material of historic value. These are not to be confused with the almost universal practice of depositing non-current records en masse in a warehouse for indefinite storage.
5 The British Records Association's Report on Records at Risk, 2012 (p.26) listed some examples of records being lost or destroyed as follows:
• unreadable digital media
• records found in empty properties unrelated to Estate, if no issuing organisation can be traced
• local historian's papers thrown away at her desk
• 80,000 glass plate negatives 1870–1970 destroyed by school because not their provenance
• own building records, because of lack of space
• branch records not transferred to archive and now lost
• local solicitor's collection broken up and sold on market stalls; items at auction are often beyond the financial resources of the repository
• personal papers destroyed because “not important”
• company records lost after being surveyed
• memoirs and memorabilia of alumni which are outside collecting remit
• business records and photographs thrown away
• video tapes affected by mould whilst in commercial storage before deposit
• deceased person's archive split between friends.
6 This is a resource issue; in the past law firms have, quite frankly, exploited the willingness of the BRA and local record offices to rescue records free of charge; however it is no longer appropriate in the current economic climate to expect the taxpayer to cover the cost of solicitors' unwillingness to take some responsibility for their own historic records.
7 Auction information gathered during a meeting with personnel from TNA's Manuscript Sales Monitoring Service, 17/11/15
8 Any document which is not the property of the exporter and is over 50 years old must have an export licence.
9 TLS' Practice Note S.3.1 Client documents specifies that “Documents such as wills, deeds, property transactions and agreements do not belong to the firm as they remain the property of the client for whom they were drawn up or his successor in title. These documents should not be sold or destroyed.”
10 Legal Ombudsman, Learning from complaints: case study publication, March 2016. P. 3
11 According to the Information Governance Initiative White Paper (p.4): The Governance of Long-Term Digital Information: IGI 2016 Benchmark “97 percent of our survey respondents told us that they are “aware that technology (hardware and software) obsolescence could mean that long-term digital records and information are at risk of not being readable or useable in the future.” This is great news—awareness is very high. The bad news? The number one solution to this problem currently being undertaken by our industry: “we are currently considering our approach.” (44 percent) The second most common approach? “We have no comprehensive strategy.” (31 percent). Only 16% are actually transferring this critical long-term information to a standards-based digital preservation system.” For the full report see http://preservica.com/resource/long-term-records-preservation-2/
12 TNA has a great deal of advice on digital continuity http://www.nationalarchives.gov.uk/information-management/manage-information/policy-process/digital-continuity/, as do private organisations such as AIIM (Association for Information and Image Management) http://www.aiim.org/Resource-Centers/Electronic-Records-Management and 3rd party records storage facilities such as iron Mountain http://www.ironmountain.com/Services.aspx
13 TNA Code of practice for archivists and records managers under Section 51(4) of the Data Protection Act, 2007
14 Maria Sienkiewicz (Group Archivist, Barclays Group Archives): 'Take the 109 bus and bring a packed lunch’: Confidentiality, reputation and logistics – the challenges and opportunities of opening up business archives. Presentation at the BAC conference 2014
15 This point is made in more detail in the BAC Access Guidance Note: ‘Let the right one in? Challenging perceptions of access to business archives’ 2015
16 TNA, Corporate Memory: A guide to managing business archives, 2009
