The Challenge
The National Archives faced a critical question: when a third party funds the digitization of public records, who controls access to those digital copies?
The institution's existing Statement of Public Task didn't clearly address this scenario. Digital surrogates, digital versions of physical public records, were in a legal gray area. The law governing the re-use of public sector information requires public bodies to publish Statements of Public Task for transparency, but The National Archives' version hadn't kept up with externally funded digitization projects.
This wasn't just theoretical. Third-party funding had become common. Commercial partners or grant-making bodies would cover scanning costs in exchange for commercial returns or wider public access. But the legal status of the resulting digital files was unclear. Were they part of the institution's core public task? Did the same access and re-use obligations apply as for the physical originals?
Without clarity, The National Archives risked over-promising or under-delivering. They could inadvertently commit to public access obligations they couldn't meet or restrict access in ways that violated transparency expectations.
The Environment and Constraints
The National Archives operates under the law governing the re-use of public sector information, which mandates that public bodies clearly define their "public task", the core activities they're legally obligated to perform. This Statement must be published for public scrutiny and challenge.
The constraint isn't just legal; it's operational. When you accept third-party funding for digitization, you're typically entering a contract that specifies how the resulting files can be used. A commercial partner funding a high-resolution scan of medieval manuscripts expects some period of exclusive access or revenue sharing. A philanthropic grant might require free public access but only through specific platforms.
These contractual obligations don't automatically align with public sector information law. The National Archives needed to reconcile two competing frameworks: their statutory duty to provide access to public records and their practical need to work with external funders who enable digitization that wouldn't otherwise happen.
The institution also faced a timing problem. Statements of Public Task aren't static documents. Regular review is essential, but many organizations publish once and forget. The National Archives chose to update proactively, before a legal challenge or public controversy forced the issue.
The Approach Taken
Digital Director John Sheridan led the revision with a focus on specificity. Rather than general language about "making collections available," the updated Statement draws a clear line: digital surrogates fall outside The National Archives' public task when two conditions are met.
First, the digitization must be funded by a third party. Second, the purpose must be either widening access to the collection or achieving a commercial return for The National Archives.
This distinction matters because it separates core archival functions from partnership activities. The physical public records remain subject to full public access obligations. The digital surrogates created through external funding operate under different terms, terms set by the funding agreement, not by default public sector information law.
The approach doesn't restrict access; it clarifies the legal basis for access. When you know a digital surrogate sits outside the public task, you know to look at the specific funding agreement to understand re-use rights. You're not surprised when a commercially funded digitization project has a paywall or embargo period.
The National Archives also embedded the update in their transparency framework. They published the revised Statement for public comment and explicitly invited challenge. This isn't defensive legal drafting. It's a recognition that Statements of Public Task serve as accountability mechanisms, and accountability requires visibility.
Results and Metrics
The update achieved its primary goal: clarification. Organizations working with The National Archives now have explicit guidance on which digital surrogates carry full public re-use rights and which operate under partnership terms.
The revised Statement also established a precedent. By treating the Statement of Public Task as a living document requiring regular review, The National Archives modeled a practice that other public bodies can follow. The update demonstrates that you don't need a legal crisis to trigger a revision; proactive clarification prevents problems rather than responding to them.
What They Would Do Differently
The National Archives' approach suggests one area for improvement across the sector: earlier integration of digital surrogate status into funding negotiations. If the Statement of Public Task clearly defines boundaries from the start, you can structure third-party agreements with those boundaries in mind.
Consider the sequence. Many institutions negotiate funding deals, create digital surrogates, then realize the legal status question hasn't been answered. The National Archives' update flips this. Define the public task boundary first, then structure partnerships within that framework.
Takeaways for Your Team
Review your Statement of Public Task annually, not when challenged. If you're subject to public sector information law, treat your Statement as a compliance document that requires regular audit. Changes in funding models, digitization practices, or partnership structures should trigger updates.
Distinguish between the record and its surrogate. Your legal obligations for the original public record don't automatically transfer to every digital representation. Be explicit about which copies carry full public access rights and which operate under different terms.
Document the funding source and purpose for every digitization project. When you accept third-party funding, record whether the purpose is widening access, commercial return, or another goal. This documentation becomes the basis for determining public task status.
Publish for scrutiny, not just compliance. The National Archives invited comment on their revision. This transparency builds trust and surfaces issues before they become legal challenges. If your Statement sits buried on a website footer, you're missing the accountability function.
Separate access from re-use rights. Making a digital surrogate available for viewing doesn't mean it's available for unrestricted re-use. Your Statement of Public Task should clarify both dimensions, especially when third-party agreements impose restrictions.
The National Archives' update won't generate headlines, but it solves a structural problem that affects every public institution managing digital collections. When funding sources determine access terms, you need legal frameworks that acknowledge that reality without compromising core transparency obligations. The revised Statement of Public Task provides that framework.
