Worst possible outcome

[David Nicoll]

Steve,

   Well it’s a business model, it costs money to buy rent scanners, transcribe etc. This number can be calculated. Hence a cost per certificate, they also provide a fantastic rescan / support desk. Usually same day I find for poor images, I don’t see Ancestry doing that.
   If they offered subscriptions they would have to pitch it at a price point that might put people off, especially if they only have a few ancestors from Scotland. Currently all indexing searches are free, Ancestry seem to add remove features costs at a whim.
   Currently if I bought an image from SP I can see it again for free, all held on their servers 25 years after I first looked. Indeed as long as the account is live, you can see the records.
   They have now also added bulk download of viewed certificates, so you don’t have to do it one at a time.
   Have you suggested subscription or other option to them, they seem to be responsive to suggestions.
  As I said before if you have an Ancestry or FindMyPast subscription you can be 95% certain you have the right person.
  With Ancestry I am paying for thousands of records I am completely uninterested in, every year, so you win some, you lose some.
  Personally I prefer the SP approach, and going back to the original point, I dislike SP being taken to court by a company owned by a hedge fund.

PS since you are paying for a page, not an entry, you quite often get results for free as well!

[Jon_ni]

The BBC article I read

The BBC article https://bbc.co.uk/news/articles/cy50gn5353zo is rather brief
Whodoyouthinkyou are gives a better idea https://whodoyouthinkyouaremagazine.com/news/ancestry-nrs-records

Ancestry are after everything digital images and associated transcripts of census, wills and civil records and want free reign to use any way they wish under Open Government Licence - on a “royalty-free” basis. They argue that as FamilySearch have [microfilm] data then they are being discriminated against. They were & are open to discussing a licencing agreement and payment but NRS sees it as opening the floodgates to requests/demands from other Companies for the same images and metadata transcript and having ramifications on their ability to perform their public functions and on future work.

One wonders if Ancestry were also testing the water as if ultimately successful then they might consider further requests and challenges with other UK bodies and County Archives. Similar vital BMD images and indexes in their home country have greater public access restrictions and costs. They seem content to let Reclaim the Records chase those from State Archives via FOI, put online free, and then copy and put behind a paywall.

NRS is funded by the Scottish Government and by the income generated from ScotlandsPeople, the latter intended to be reinvested in the delivery of public services. The fees they charge approved by the Scottish Parliament.

Ancestry used The General Regulatory Chamber, a First-tier Tribunal to appeal against the Information Commissioner's Office and NRS' rejection of their data request. The Tribumal has ruled in Ancestry's favour on one aspect but against in several.

The full arguments, evaluations and decisions can be read via the National Archives
https://caselaw.nationalarchives.gov.uk/ukftt/grc/2025/1088
Some excerpts are below but others might pick other bits.

Ancestry’s "Mr Atkinson accepted that the Request is for a valuable resource, unique to NRS, providing significant revenue to NRS, so that Ancestry might exploit it commercially"

"The effect of Ancestry’s submission is to deny an archive its threshold discretion and to make permission to re-use mandatory,"

268. In reality, Ancestry is asking us [the Tribunal] to examine and determine the limits of reasonableness in the exercise by a public sector body of a discretion which, if exercised so as to permit the requested re-use, would, as NRS would have it, mean it having to divest itself of, or at least potentially significantly diminish in its hands the value of, a unique asset which is currently fundamental to the performance of the public sector body’s public task, and to expose itself to additional, and potentially very substantial, ongoing costs, at an ultimate cost to the public purse.
269. It seems to us that that significantly exceeds the bounds of what the Commissioner and the Tribunal are set up to do under FOIA as modified for the purposes of RPSI. [Re-use of Public Sector Information Regulations]

Decision: The Appeal is Allowed in part and Dismissed in part.
278. The Tribunal finds that the Request was a request for re-use within the meaning of RPSI. To that extent, the Decision Notice is not in accordance with the law, and to that extent the Appeal must be allowed.
279. The Tribunal finds that NRS’s exercise of its discretion to refuse the Request was not in breach of any requirement of RPSI. To that extent the Decision Notice is in accordance with the law, and the Appeal must be dismissed.

[Archivos]

...
I don't want free access, I want affordable access for my needs. As far as I can see the only way to achieve that is a subscription model of access, or perhaps bulk pricing on a sliding scale.

To give an example of Other Church records, about 15 years ago I had reason to want to access Nicolson Square Methodist Church records and was told they were not microfilmed and were held off-site. I would have to preorder the volumes I wanted and spend some days in Edinburgh reading them. At that point I gave up. As far as I can see they are still not filmed and are certainly not online and what is worse there is no evidence, like a filming and release schedule, that they ever will be. Equivalent records in England were filmed in the 1950's and are available through multiple subscription sources.

I don't really want to get into specific records but I would like to think that these records were being filmed on a well considered schedule and that they would one day appear online if only to stop them being lost to an unfortunate fire or dropping to bits through age.

This is the crux, what affordable means to different people. I don't have a subscription to Ancestry, as I don't use it enough. I don't mind the credit system on Scotland's People as a result, as it allows me to dip in and out, find information from the free indexes, look at some church records for free, and then decide if I want to part with any money.

Ordering records to look at which are held offsite is really common, and while the issue of access when not in the same country or can't get to where they are held is the same as it ever was, it does seem more frustrating now as there is other information online. A subscription service for Scotland's People isn't going to solve this though.

And thanks to Jon_ni for the fuller explanation of the tribunal outcome, much appreciated!

[Forfarian]

Thank you, Jon_ni.

As I see it, if NRS is forced to make all its material including indexes available to Ancestry, it will be obliged to do the same if approached by any other commercial organisation with a similar purpose. The tribunal document says there are 10-15 such, but does not name them, but they would include FindMyPast and MyHeritage.

If these commercial companies run true to form, they will, like Ancestry, take the indexes and put the full versions thereof behind their paywall, though they may make redacted versions available free of charge.

The end result will inevitably be the collapse of Scotland's People as we know it, because its revenue stream will simply dry up. There will be no income to invest in making additional documents available, and instead of the revenue from our national records coming to Scotland and benefiting everyone, it will go as profits into the pockets of a foreign hedge fund.

Therefore, irrespective of the fine legal points on which the legal proceedings appear to turn, we will all (except the hedge fund owners) ultimately lose out, even though it might cost us less in the short term.

[ikas]

Perhaps I am being naïve but it seems to me that the obvious solution is for NRS to agree to give access but on a pay per view basis? NRS get a fee from Anc every time a record is viewed. If Anc agree than NRS will get a huge increase in income while retaining income from the many who do not have an Anc subsciption. If Anc consider that too expensive then job done – NRS have offered to give access but Anc have walked away. Surely no court can dictate terms of a commercial contract?

[Andy J2022]

Perhaps I am being naïve but it seems to me that the obvious solution is for NRS to agree to give access but on a pay per view basis? NRS get a fee from Anc every time a record is viewed. If Anc agree than NRS will get a huge increase in income while retaining income from the many who do not have an Anc subsciption. If Anc consider that too expensive then job done – NRS have offered to give access but Anc have walked away. Surely no court can dictate terms of a commercial contract?

The 'request' by Ancestry was made under the Freedom of Information (Scotland) Act 2002. The Act says that any fee charged by the public authority must be determined in accordance with regulations made by the Minister for the [Scottish] Cabinet Office. In other words the NRS cannot set its own scale of fees.  The actual Regulations set the upper threshold beyond which the cost is deemed excessive at £600 (see Regulation 5). From the WDYTYA article cited in Jon_ni's reply 19 above, the NRS say that the cost of complying would be "over £560,000", and take between 12 to 18 months to achieve. On its face this would seem to make the NRS's refusal to comply lawful. However it appears that Ancestry have countered this by saying that their staff should be granted direct access to the NRS information in order to carry out the transfer and any scanning etc of the data, so that NRS would not face this cost. This would be a similar arrangement to what happened with the England and Wales 1921 Census contract between FindMyPast and the National Archives. However that contract had nothing to do with FoI,

[Jon_ni]

My recollection of the pdf was as the request stood that Ancestry suggested disaggregation would be achievable without third-party technical assistance & the obligation was on NRS to supply the data under the Re-use of Public Sector Information Regulations 2015 https://www.legislation.gov.uk/uksi/2015/1415 . Apparently those allow  appropriate charges to cover a reasonable return on investment, direct, indirect and overhead costs. The said their experience with other archives was nothing was insurmountable and they would be flexible with the data format. Neither NRS nor Ancestry had IT experts there.
Ancestry had modified their request from Open Governemt Licence to under RPSI on 14 Jan 2025 ie at the Tribunal, after it had been conisdered twice by NRS & then the Commissioner.

The £560,000 was what it cost NRS last year
It would likely take 12–18 months to put in place the requisite technical and commercial arrangements; a recent migration from internal storage on premises to cloud storage using the same underlying data structure but which did not involve changing, correcting or re-ordering the data structure (which, as we understand it, would be required in this case) took 11 months to plan and execute, involving considerable NRS and external resources, at a cost of in excess of £560,000

When it was put to Ms Sinclair that NRS’s concerns might fall away in the face of a charging structure which held NRS harmless, she explained that scoping that issue in itself would be a complex piece, requiring full planning with consideration of a 20-40 year period ahead to address sustainability.
Potential loss of income to NRS, is estimated up to £3.7m per year, based on an average over the last 6 financial years.

Ancestry had already added to their initial 2022 request for the addition of the 1921 census.
NRS is concerned that if it were to accede to the Request, NRS may then have to repeat the exercise, either upon each annual release by NRS of new records [and rolling years of BMD], or, bearing in mind the requirement of Regulation 13 (non-discrimination), that once NRS has granted re-use, it must then treat economic operators equally and without discrimination and act in a transparent and proportionate manner in response to requests by other, similar businesses, entailing the construction of an ongoing [secure] transfer service at significant cost to itself and the public purse.

[above from NRS replies pdf pages 25-27]

How long did they estimate it would take to recoup in £1.50's the cost of the 1921. Should NRS, Scottish Parliament and taxpayers pay for the digitisation and transcription of the 1931 census, for it to be demanded by one or more commercial genealogy companies. Anything NRS digitise/host has potential to be requested.

Findmypast did the English 1921 but bore the full cost of that, hence the 3 year exclusivity licence and the initial additional charges. TNA curators but FindMyPast digitisitation staff, working under tight security clearence as was before the 100 years was up, then batch transferred and transcribed in strips in India (as the 1939 was) so no one there had names, ages, occupations and address on a single image. FindMyPast then returned to TNA a full set of archival standard tiff images from FindMyPast servers. As an aside the transcriptions were/are riddled with errors and some misalign horizontally if the head used 3 lines instead of two for his occupation, or there is a blank. The NRS COVID delay was probably of benefit as the data was then open by law so transcription was unconstrained.
Three years later Ancestry agreed terns with TNA for their images and terms with FindMyPast for FindMyPast's transcripts so Ancestry could get it online immediately & not have to re-do. 1911 & older census were transcribed by both & so differ; the 1921's will diverge based on corrections submitted to FindMyPast and user additions to Ancestry.

[Andy J2022]

Thanks for the more complete reply.

[Jon_ni]

TNA, Kew don't host census on their public servers. They tried the 1901 https://www.nao.org.uk/reports/unlocking-the-past-the-1901-census-online/ thereafter put the 1911, 1939  & 1921 to tender, all initially under a micropayment structure before they became part & parcel of a UK subscription. The [2nd] report contrasts the scale and experience of putting the English and Scottish 1901 census data online.
Similarly a lot of Army records have been licenced to Ancestry or Findmypast for access on their respective servers only. TNA planning and accounts have been based on this.
NRS went a different route, they had created a website 2001 for the 1891 and released all subsequent census on it, outsourcing the digitisation and transcription but hosting the data themselves and charging. That has been their gameplan since 1997.

The whole thing is complex legally and financially, we can sympathise with one side or the other but we are not going to resolve nor do we have all the facts & info.
My interest is in the end product, I doubt many of us will read the NRS's Annual Report & accounts https://www.nrscotland.gov.uk/about-us/annual-report-and-accounts/ nor TNA's https://nationalarchives.gov.uk/annual-report-and-accounts-2024-25