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The National Archives and The Department of Justice’s living history

by William Murphy

The National Archives are governed by legislation.

S8 of the primary National Archives Act 1986 sets out the requirement on Government departments to hand over files after 30 years.

Geraldine Kennedy in The Irish Times has reported on the surprising lack of new information in the files to be released this year on the GUBU phone tapping scandal of 1983;

“There are six phone-tapping files in all: four from the Department of the Taoiseach and two from the attorney general’s office. There is no file from the Department of Justice, where all of the activities took place. When questioned about the absence of any files from the department, an official in the National Archives volunteered that the department said it had neither the manpower nor the time to supply them in time.”

This is not one of the legally permissible reasons not to deposit state papers into the National Archive.

We know this, because in 1998, the Regulations governing the details of the transfer of records to the National Archives under the National Archives Act were signed. Section 5 reiterates the Act’s time limits

“5. (1) Records which are to be transferred in accordance with the provisions of the Act shall be transferred to the National Archives not later than the end of the year in which they become 30 years old.”

The full list of those records should have been transferred to the National Archives in advance, by last September 2013

“5 (2)(a) On or before 1 September each year, unless alternative arrangements have been approved in advance by the Director, each Department of State shall send to the Director one or more schedules listing all records which will be 30 years old as determined by Regulation 4(1) before the 1 January next occurring, and which have not already been included in a schedule previously prepared under this Regulation.”

Only if a certificate of the kind set out in law (below), signed by a designated senior civil servant from the Department of Justice and countersigned by the Department of the Taoiseach, has been accepted by the National Archives as justified may files be withheld. There are only three reasons why a certificate may be granted, listed at S8(4)(a),(b) and (c). Not enough time or manpower isn’t one of them. (As an aside, ‘not enough time’ seems like a surprising reason to explain why you haven’t done something foreseeable for the last 30 years.)

And that Certificate should also have been sought “On or before the 1st September” (per Regulation 7(1)(a)) by the Department of Justice.

I suppose the only thing that remains to be asked of the National Archives is whether a Certificate, of the sort set out below (taken from Appendix 5 of the National Archives Regulations) was sought, countersigned by the Department of the Taoiseach and accepted as justified. If not, the next set of questions would have to be for the Department of Justice.

(Oh, and the signatory of the 1988 Regulations? One Charles J Haughey, Taoiseach.)


Appendix 5

National Archives Act, 1986, Regulations, 1988

Form for use by Certifying Officers

I hereby certify, pursuant to section 8(4) of the National Archives Act, 1986, that to
make the record(s) or part or parts thereof or class or classes of records described
below in the attached schedule available for public inspection would
(Quote one or more of the reasons for not making records available specified in
section 8(4).)
Records referred to above:

Certifying Officer

I consent to the making of this certificate.
I do not consent to the making of this certificate.
(delete as appropriate)

Consenting Officer
Department of the Taoiseach
Date not later than which the record(s) must be reviewed (day, month, year, 5 years