This Position Statement has been published by the Collections Trust in response to requests received from English museums relating to the transfer of ownership of collections information (‘documentation’) during the transition from Local Authority support to independent Trust status.
A museum collection comprises:
- The physical items which make up the collection.
- Digital images, scans or surrogates of collections items.
- The narrative and administrative information associated with those objects and surrogates (collectively known as ‘documentation’).
The maintenance of good documentation and the development of procedures to ensure that information about the collection is captured, managed and preserved are fundamental requirements of professional diligence in museums.
A collection of artefacts that is separated from the information about those objects (such as information about the circumstances under which they were acquired, their provenance, their location, value or narrative context) cannot properly be considered a heritage collection. It is the information and knowledge about the collection which provides its heritage value and context.
Collections-related documentation should therefore always be considered to be indivisibly and permanently part of the collection in any discussion about the transfer of ownership or governance of that collection from a Local Authority to an independent Trust.
Requirements of Museum Accreditation relating to Museum Documentation
The Museum Accreditation Scheme is maintained by the Arts Council England to provide a minimum standards scheme for UK museums. Further information about the scheme can be found on their website.
The Museum Accreditation Standard makes the following basic requirement of all Accredited museums in respect of their collections: “Accredited museums manage collections effectively and make them and the information they hold about them available to everyone.”
The Museum Accreditation Guidance further notes that a museum should maintain a documentation policy. The aim of a documentation policy is to ensure that the museum fulfills its responsibilities in relation to security, management and access of collections. The policy should aim to:
- Improve accountability for collections.
- Maintain at least minimum professional standards in documentation procedures and collection information.
- Extend access to collection information.
- Strengthen the security of the collections.
The creation, maintenance and retention of appropriate documentation is therefore a primary requirement of the Accredited status of a museum. Any museum that is prevented from accessing documentary information may find themselves rendered ineligible to be Accredited.
Information Commissioner’s Guidance
The Collections Trust has received the following advice from the Information Commissioner in relation to documentary information about the collection that is provided by a 3rd party during the acquisition or interpretation of that collection:
“I must start by saying that it is always the data controller’s decision on what they do with the personal data they hold. The data controller would need to consider if they need direct consent from the individuals to pass on their personal data to another data controller. In this particular circumstance the Local Authority could consider relying on the ‘legitimate interest’ condition in Schedule 2 (6). This would mean that they would not need direct consent from the individuals, as this condition provides grounds to process personal data in a situation where an organisation needs to do so for the purpose of its own legitimate interests or the legitimate interests of the third party that the information is disclosed to. This information can be found in our data sharing pdf on our website.
This situation could be also considered in another way. When the individuals passed their information onto the Local Authority for the purpose of museum use, they probably would expect this to stay within the museum in all circumstances. Therefore I would say that it would probably be in the individuals’ reasonable expectations that this information would be passed to the museum, even if they become a data controller in their own right. This would also mean that direct consent would not be necessary from the individuals involved. It would be good practice to keep an audit trail of all information passed between data controllers and the reasons the information has been passed. It would also be an idea to inform the individuals of the change of data controllers, then if they have an issue at that stage you can address it.”
Response from the Information Commissioners Office (Case Reference Number ENQ0548179)
The Collections Trust’s interpretation of this guidance is that:
- In discussions about the transfer of ownership of collections-related documentation during the transition from Local Authority to independent Trust status, the Local Authority should consider that it is in the legitimate interest of the museum and the individuals concerned for the museum to retain ownership of the documentary information about the collection, and;
- That in providing the information to the museum, the donor or benefactor of the collections items will have done so under the reasonable expectation that the information would be passed to the museum, even if it became the data controller in its own right.
On this basis, it is our interpretation of the Information Commissioner’s guidance that ownership or governance of the collections documentation should transfer to the independent Trust from the Local Authority along with ownership or governance of the collection.
Custom and practice
In the vast majority of cases where the Local Authority and a museum enter into negotiation about the transition to independent Trust status, they are able to do so on an equitable basis and with a mutual commitment to maintaining the integrity of the museum collections, including their associated documentation. In most circumstances, it is understood that the ownership of the collections documentation will either transfer to or be made permanently accessible to the museum (dependent on the specific governance arrangements of the transfer of the collection).
In a very small number of cases, a dispute has arisen in relation to the collections documentation on the basis that the information was technically acquired by the Authority in its role as data controller.
It is the Collections Trust’s view, as the national professional association for Collections Management, that the loss of access to the collections documentation would represent a critical risk to the viability of the museum and its ability to fulfil its public and charitable task. We therefore encourage museums and Authorities finding themselves in this position to work together to agree a mutually satisfactory solution which permits the museum to fulfil this task.
This position statement has been provided by the Collections Trust in response to enquiries received from museums. It is provided on the basis of our professional status and expertise and legal advice has not been sought. We encourage museums to make use of this statement in their engagement with their Local Authority partners. Caution should be exercised in its application and in the event that it becomes necessary, appropriate legal advice and/or representation should be sought.