The following guidance is reproduced by permission of the Crisis Management Team. You can access the original guidance and further information on the Managing Business Archives: Crisis Management Team webpages at:
Advice for archivists
The first step: Make contact
Make contact with the company if it is still in operation, and the named administrator, liquidator, or receiver. The insolvency agent and their contact details should be advertised; you can also consult The Gazette for this information. A phone call is helpful in the first instance; you are likely to be asked for details in writing.
When You Telephone…
- Say who you are, your role, the name of the company you are interested in, that you are concerned with the preservation of its records. State that the archive service is interested in taking in the records, or work with other parties to secure their preservation.
- Ask to speak to the most appropriate person within the company concerned about the records, who will have knowledge about the records.
- Emphasise that you are in contact with the Crisis Management Team regarding the situation.
- Follow up the phone call with a letter (see template below), whether they request this or not. Including a line to say your interest will be followed up with further communication shows that your request cannot be easily ignored.
Template for letter
Dear ___________
My name is _____ and my role is ___________.
[Note the background to the enquiry, including any previous contact, the importance of the company/likely records and the evidence, if any, of the existence of records.]
My main concern is that the historical records of X [company] are identified and protected for future generations. If there is any question of destroying or otherwise disposing of the records, Y [archive repository] would offer to house the collection or work with relevant parties to make sure that it is preserved.
I am seeking contact details for the appropriate person or department within X [company] with whom I can discuss protecting this important historical business archive.
I have also spoken to X [mention any wider body or person of historical authority who has also been contacted] and they will contact you separately with regard to protecting the archives of X.
I will follow this letter up with a telephone call next week.
Yours sincerely, _______________
identify archival material
It may be that further arrangements and detailed discussions cannot take place until the future of the business has been planned out. However, there are steps you can still take.
Try to stay in regular contact and ensure you keep up to date with progress and related deadlines.
Try to consult existing listings and view records in situ before they are removed and buildings sold. Records that are non-business critical for the administrator, liquidator, or receiver are often left behind in buildings. Gaining access to them becomes harder as time goes on, and questions about ownership of records become more complex when buildings are in the hands of third parties.
Be ready to cover costs relating to opening up and viewing archives in abandoned buildings, and/or the retrieval of boxes held in offsite storage.
Try to contact company staff and ask them to share listings if they have them, and/or guide you to the key record series; also ask if there is any other relevant information they can give you – remember, they might not think it is relevant, so do ask questions!
Remember to think about digital records as well as analogue: are there servers, hard drives? Who can tell you the passwords for these?
remember current records
The administrator, liquidator, or receiver will take current records that are necessary for their work. Some of these may have archival value and if so, should be earmarked for later transfer.
It is usual for records held by an administrator, liquidator, or receiver to destroy records after a certain period when a business has been dissolved. You should ensure that you identify and negotiate transfer of these records before this period expires (it can be as short as six months!).
transfer ownership
Archive services should ensure ownership of rescued records is transferred and a gift agreement should be provided for signature by the administrator, liquidator, or receiver.
The agreement should refer to any relevant legislation, and relieve the donor of legal liability for the records once they are gifted. Ensure copyright is included!
gift agreement
Repositories should ideally submit a special gift agreement to the liquidator to formalise the donation of records. The agreement should be headed with the date and the name and address of donor (i.e. the full name of the business which is in liquidation with its registered address) and phrase ‘In Liquidation’
The agreement should refer to the type of liquidation and appointment of liquidator, outline that the liquidator accepts no future liability arising from the donor’s archives and outline that the donor assigns ownership to the repository together with any copyright interest held by the donor. The gift should be executed (completed and signed) by the Liquidator under powers contained in the Insolvency Act 1986 on behalf of the Donor business in liquidation.
Examples of key clauses which have been successfully adopted by repositories are given below. The first clause below gives options which should be deleted as appropriate depending on the type of liquidation:
- The Donor is in [voluntary liquidation under a [members’ (or) creditors’] winding up (or) liquidation under a winding up by an order of the [High Court of Justice Chancery Division Companies Court (or) [ (name)] County Court] made on [(date)] in the matter of the Donor and in the matter of the Insolvency Act 1986 reference to the record [ (number)] pursuant to which [ (name)] had been appointed as the Liquidator.
- The Liquidator shall not be required to give and will not give any personal covenants of whatever nature and no personal liability shall fall upon the Liquidator whatsoever.
- The Donor declares that it is the sole legal and beneficial owner of the Items.
- The Donor agrees absolutely and irrevocably to assign, with limited title guarantee, all legal and equitable estate or interest in the Items and to assign all copyright in the Items.
At each stage of the process, contact the Crisis Management Team to give an update; the CMT is also able to give you further advice and support at any point.
For more information on the Crisis Management Team, see: https://managingbusinessarchives.co.uk/getting-started/business-archives-risk/crisis-management-team/
Advice for insolvency practitioners
How Insolvency Practitioners Can Rescue Archives
play your part to protect history
This guidance is written for insolvency practitioners. It is to help you ensure records of historical value survive when a business or charitable organisation fails. This guide has been approved by the Business Archives Council.
2 February 2021. Version 2
what are archives?
Archives are records kept because they contain information of historical value. They can be important for legal purposes. Archives also have value for social and economic history research, family history and local history. Archives tell the story of an organisation and its locality. They are a shared testament to the contributions of the people who worked for it, and of those who engaged with it.
Records can be in hardcopy, such as minute books, letters, building plans, or photographs. They can also be digital, such as spreadsheets, digital photographs, documents, or emails. These can be on hard drives, removable media, cloud storage or servers.
advantages to insolvency practitioners
Insolvency practitioners have an important role to play. They can help ensure archives survive when a business or charitable organisation fails.
In turn administrators and liquidators enjoy the following advantages:
- Meet ethical requirements. Administrators and liquidators are bound by a code of ethics. This code requires the practitioner to understand the context of an insolvency case. It also promotes the need to gain specific knowledge to manage implications of actions around winding up a company. This includes the disposal of assets such as archives.
- Receive professional best practice advice from archivists, free of charge.
- Ensure no ongoing liability as agreements transfer ownership to an archive repository.
- Enhance the insolvency profession’s profile and meet Corporate Social Responsibility goals. Successful cases of rescue are good news stories. These can be celebrated by repositories and office holders alike. A key example is the Thomas Cook archive now cared for by The Record Office for Leicestershire, Leicester and Rutland which was dealt with by the Official Receiver as liquidator and insolvency practitioners from AlixPartners acting as Special Managers.
Katie Hudson, Official Receiver, at the Insolvency Service said:
We were keen to ensure that Thomas Cook’s historical records found an appropriate home. The Crisis Management Team for business archives assisted us with the process which ran very smoothly, and enabled us to transfer the archive to The Record Office for Leicestershire, Leicester and Rutland. The Record Office have great plans for the archive and researchers will be able to use the records for generations to come.
The following guide will help you save records of historical value.
You should not dispose of records before beginning this process, as archives may be lost. Where possible, keep records in the order you find them. Their location provides important contextual information for archivists and will inform their work.
Contact the Crisis Management Team for Business Archives for advice. They can act as the point of contact between insolvency practitioners and the archives sector. There is no cost associated with this advice.
due diligence: what you need to do
Businesses of all kinds have records worthy of permanent preservation. The archives of long-standing companies of local or national significance will be especially important to safeguard. Archives of recently established companies of local or national standing, for example within sectors of contemporary significance, are also important. They will tell the story of business in the twenty-first century. Any business well-known or established within a specific community of place or practice will also have records of interest.
If you are unsure whether a business has records that may be worthy of permanent preservation, contact the Crisis Management Team for Business Archives for advice.
Businesses of all kinds have records worthy of permanent preservation. The archives of long-standing companies of local or national significance will be especially important to safeguard. Archives of recently established companies of local or national standing, for example within sectors of contemporary significance, are also important. They will tell the story of business in the twenty-first century. Any business well-known or established within a specific community of place or practice will also have records of interest.
If you are unsure whether a business has records that may be worthy of permanent preservation, contact the Crisis Management Team for Business Archives for advice.
1. Find out if there is an existing historical archive in-house and kept in designated location(s). Managed archives are usually accompanied by useful lists and records on past use. These describe the contents and evidence the value of the records to the organisation and researchers. The staff who have looked after the records may include trained archivist(s). They will be invaluable as sources of advice on past decisions and requirements. Businesses with a managed corporate archive should have an exit plan in place.
2. If there is no collected archive, keep a brief summary of the kinds of records you find and their location. This can be onsite, on hard drives and shared drives and/or offsite storage. Include information about the date range(s) they cover, and their format. Explore common kinds of records in the FAQs (below). Any artefacts (for example, signs, pictures or tools) can be part of the archive and/or suit a future art gallery or museum collection. Advice may be sought from an archive and/or the Museums Association.
3. Ask staff in the organisation if any records have already been deposited with an archive repository. If it is unclear, search The National Archives’ Discovery Catalogue under ‘Record Creators’. You can also contact the Crisis Management Team for Business Archives for advice.
If archives are already deposited:
- contact the archive repository
- introduce your role and find out more about previous deposit(s)
- outline the records which are in possession of the business or charitable firm. The repository will be able to work with you to help decide what records to keep. They may review summary details lists and/or survey records. Before transfer, the repository will supply a deed of gift. The administrator or liquidator signs the deed on behalf of the organisation. The agreement transfers ownership of the archive to the repository. See the FAQs (below) for more on deeds of gift. It may be unclear whether records are already at an archive repository. Contact the Crisis Management Team for Business Archives for advice.
If records are not deposited with an archive repository:
- contact the Crisis Management Team for Business Archives
- outline the name and background of the business you are working on
- explain the kinds of records you have identified. The Crisis Management Team will connect you up with the relevant archive repository. This will enable you to discuss the potential for deposit, and the repository will work with you to help decide what records to keep. They may review summary details lists and/or survey records. Before transfer, the repository will supply a deed of gift. The administrator or liquidator signs the deed on behalf of the organisation. The agreement transfers ownership of the archive to the repository. See the FAQs (below) for more on deeds of gift.
faqS
What kinds of records should we be looking for?
Both official and unofficial records are important, on paper and in digital format. This could be older material or recent records which tell the story of the company. Common kinds of archive documents include:
- Corporate and administration: certificates of incorporation, articles of association and other foundation records, executive minutes, rules, policies, business plans and procedures, reports (including annual report), shareholding registers, files of individuals in key positions (such as Chairman, Director, Secretary) on company matters, events and notices.
- Legal and premises: contacts and agreements, statutory reports, patents and licenses to operate, property records including deeds, plans, inventories and valuations.
- Finance: annual statement of accounts, returns, audits, statutory reports, budget policy and planning documents, ledgers, cash books and other series recording financial transactions.
- Production/Operations: including departmental work, branches, members and cases including registers, lists, files, factory and sales records.
- Staff and employment: including lists and registers, pension scheme, magazines, photographs of social events, and documents on staff clubs/societies.
- Marketing: advertising material, artwork, leaflets, posters, press releases, scrapbooks, photographs, audio-visual material (films, video footage and audio cassettes).
- Reference material: records not created by the company but kept by the firm. These can provide context and show the relationships the business had.
- Artefacts, such as tools, signs or marketing items may well have significance and directly relate to the archive.
Insolvency practitioners need to keep some company records. What should happen with these records once work is at an end?
Alert the archive service to the more recent records you are retaining. Tell them how long you intend to keep them. The archive service will agree when to hand over these records to them. Transfer will ensure they join the main records of the business.
What about the UK General Data Protection Regulation (GDPR)?
UK GDPR is incorporated into the Data Protection Act 2018. The regulation does not require the destruction of all records containing personal data. The legislation has an important exemption: archiving in the public interest. This recognises that key records containing personal data about living persons can be of historical value. Archive services restrict access to items containing such personal data. Keep records containing personal data and allow the archive service to appraise them. The repository staff will select items to keep. Dispose of material allocated for destruction in a secure way.
The National Archives has published guidance on Archiving Personal Data in line with the Data Protection Act 2018.
What is a deed of gift?
A deed of gift transfers ownership of the records to the archive repository. The administrator or liquidator signs over the material on behalf of the insolvent organisation. The archive repository usually supplies the agreement for signature. The deed summarises the archive and responsibilities. A clause releases insolvency practitioners from future responsibilities or liabilities which may arise. For details on what to expect see published guidance for archivists.
What will happen to the records once the archive repository has them?
The deposit may be a chance to publicise good news. The archives will be kept at the expense of the repository. Access will comply with legislation around data protection. They will:
- Store them securely
- Register or accession them
- Catalogue with funding available to them
- Then make them available for research
- share them with community and for education
Ex-company staff or customers may be able to contribute to cataloguing and events
Can you point me to successful examples of this process?
Explore recent case studies on the Managing Business Archives website.
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