COUNCIL OF EUROPE

COMITTEE OF MINISTERS

 

EXPLANATORY MEMORANDUM

to Recommendation No. R (00) 13

of the Committee of Ministers to member states

on a European policy on access to archives

 

(Adopted by the Committee of Ministers

on 13 July 2000 at the 717th meeting of the Ministers' Deputies)

 

 

 

Introduction

 

Archives form an essential and irreplaceable part of the cultural heritage. They preserve the memory of nations and the survival of human memory in large part depends on them.

 

This idea is particularly important in Europe for a number of reasons:

 

i. the increasing interest of the public in history and in seeking historical documents, as shown by the growing frequentation of archives and the rapid growth of research undertaken in the most recent periods of history;

 

ii. the institutional and economic reforms taking place in the new democracies, which call to mind the importance of archives in the process of the democratisation of a State;

 

iii. the exceptional scope of the changes which are taking place everywhere in the creation of records, as a result of the growing complexity of the areas subject to intervention by public authorities, on the one hand, and of the developments in technology on the other hand.

 

Since it is generally accepted that no country belongs fully to the democratic world as long as all its inhabitants do not have the possibility of being acquainted, in an objective manner, with the elements of its history, it is essential that this principle be applied, through European co-operation, at the international level with a view to creating a stronger awareness of the common heritage constituted by the archives of the countries of Europe.

 

In view of this, the Council of Europe concluded that the time has come to examine the field of archives and, in particular, the basic issue of access to them and then to draft a set of principles with a view to harmonising the relevant national legislation of the member States.

 

Studies carried out in 1995 to 1996 by teams of expert archivists, historians and lawyers highlighted the complexity of the issue. At the national level, it derives from the multiplicity of entangled rules governing access contained in various regulatory texts and from the conflicting requirements of transparency and secrecy. At the international level it is a result of the variety of constitutional and legal frameworks. Another conclusion of the studies was that the problem of access to archives is an inherent part everywhere of the general cultural context, and that public opinion perceives it in its own way in each country.

 

If the complex nature of the problem makes any attempt at uniformity of legislation and rules illusory, it brings out strikingly the immense need for a joint effort to formulate a set of principles, in order to inspire a policy of the member States with respect to access to archives. Such principles shall accord with democratic values and be compatible with constitutional arrangements of each State.

 

This Recommendation adheres to the same principles as the international conventions promoted by the Council of Europe in related fields, and in particular:

 

-    the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 as amended by Protocol N° 11 and takes into account Article 8 concerning the right to respect for private and family life and Article 10 concerning the right to freedom of expression;

 

-    the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS N°108);

 

-    Recommendation (81) 19 of the Committee of Ministers to member States on the access to information held by public authorities;

 

-    Recommendation (91) 10 of the Committee of Ministers to member States on the communication to third parties of personal data held by public bodies.

 

The current Recommendation underlines the necessity of:

 

-    ensuring coherence, at the different levels in the hierarchy of legal norms, between rules relating to access to archives and all other measures relating to matters concerning access to information;

 

-    being strongly based upon the principle of proportionality and balance, in order to respect the different interests involved in the matter of access;

 

-    building in procedural guarantees sufficient to safeguard the interests of all individuals and corporate bodies concerned.

 

The Recommendation therefore bears on the principles and procedures directly connected with access to archives.

 

The following issues are excluded: the analysis of related questions, such as the right of individuals to request the correction of official records and the commercial by-effects resulting from the possible publication of archives; other questions of a technical nature, such as the types of finding aids most suited to facilitating the work of users; the management of microfilming and digitalisation programmes; the specific features of the processing and use of electronic archives and, of course, restrictions to access based upon the physical condition of the documents.

 

It should nevertheless be recalled that however liberal the access rules prescribed in legislation may be, the actual access to archives depends primarily on the facilities and on the human and financial resources which an archives service possesses for the preservation and the processing of its holdings. Uncontrolled destruction of archives, impossibility of proceeding to their arrangement, absence of buildings permitting their physical maintenance in proper conditions, constitute common impediments to access by the public to the records that may be of interest to them. If the State budget does not provide for the operation of archive services, the law will be ineffective, since it will not be possible to apply the measures concerning access to archives. 

 

COMMENTARY ON THE PROVISIONS OF THE RECOMMENDATION

 

I. Definitions

 

Article 1

 

The definitions proposed in this Recommendation are based on the numerous works of terminology undertaken by archivists at international and national levels, and in particular on the dictionary of archival terminology of the International Council on Archives.

 

In the generally accepted professional terminology, the word "archives" written with a lower case "a" covers the documents still in use or retained in the creating agency, those stored in intermediate centres, as well as those transferred to Archives. In view of the objective of the present Recommendation, the definition proposed in Article 1, paragraph a(i), is limited to the holdings placed under the responsibility of Archives.

 

II. Legislative and regulatory texts

 

Article 2

 

The purpose of this article is to recall that in view of their paramount importance, the general principles concerning access to archives should be embodied in a statutory text; on the other hand, practical arrangements for implementation may be specified in regulatory texts.

 

This Recommendation deals only with the general principles which concern access to archives.

 

Article 3

 

The purpose of this article is to emphasise that the drawing up of legislative and regulatory texts concerning access to archives should not be undertaken without taking into account:

 

a. on the one hand, the constitutional provisions specific to each country, that is to say, according to circumstances, its written constitution or its unwritten constitutional principles;

 

b. on the other hand, the legal texts which cover a number of areas related to rules governing the access to archives; in particular:

 

i. texts on access to official records based upon the principle of immediate access to information by the public; in view of legislation on administrative transparency, records which may be consulted in the creating agency should remain accessible after their transfer to Archives;

 

ii. the draft Recommendation undertaken by the Council of Europe Group of Specialists on Access to Official Information (DH-S-AC);

 

iii. texts relating to the use of computer files containing personal information which aim to protect the personal privacy of individual citizens, whilst avoiding the risk of loss of collective memory which the destruction of these files at the end of their period of administrative use would involve. In this connection the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS N°108) and Directive No. 95/46/CE, Article 6.e of the European Parliament and of the Council of 24 October 1995 on the protection of individuals in relation to the processing and free circulation of personal data are recommended for guidance;

 

iv. legal texts defining the different levels of data protection in such specific areas as health, taxation, public security or national defence;

 

v. legal texts concerning the protection of personal privacy; these have a particular importance for Archives since they define categories of protected information, the period of protection for each category and the categories of persons who can benefit from such protection. It goes without saying that public officials should not prevent access to public records produced in the course of their own administrative duties by claiming respect of their own privacy;

 

vi. instruments concerning the protection of intellectual property, which may affect access to, and use of, public archives, including audio-visual and electronic records, if it applies, in accordance with Directive 96/9/EC of the European Parliament and Council (11 March 1996) on the legal protection of databases. 

           

Article 4

 

The purpose of the current article is to underline the fact that public liberties and the principle of equality of citizens require identical application of rules for access to public archives across the country and regardless of the constitutional arrangements for the state and the extent of the competence of the central government.

 

This requirement, although it is in conformity with the operation of democratic institutions, may be in contradiction to constitutional provisions determining the rights and prerogatives of constituent states in a federal system or other types of autonomous authorities.

 

For this reason it is recommended that those European states concerned should reconcile these two contradictory democratic imperatives according to the possibilities offered by their constitutional laws.

 

III. Arrangements for access to public archives 

 

Article 5

 

The purpose of the current article is to avoid any measure which would permit preference to any category of users on the basis of their nationality, level of education, the nature of their research or any other criterion whatsoever. The law should not make any distinction between categories of users.

 

Article 6

 

The current article underlines the fact that the freedom of access without charge to the consultation of records and to finding aids constitutes a basic principle underlying any policy in favour of access to archives.

 

The charging of fees and taxes may nevertheless be authorised on chargeable value adding services, such as the issue of copies or the use of particular technical equipment. Archives services may in the same way share in the profits from the publication or exploitation of the records for the custody of which they are responsible.

 

Article 7

 

In certain countries, public archives are accessible without particular restriction except where the right to access is limited by the need to maintain confidentiality concerning aspects of national defence, foreign policy, public order or the privacy of individuals. No general closure period is applicable.

 

When this is not the case, in order to balance the right to historical knowledge and the protection of the interests of the State and of the privacy of individuals, a range of appropriate access deadlines can be noted. They are as follows:

 

a. a general closure period, which does not usually exceed twenty or thirty years, and which applies automatically to documents or groups of documents where making them available for access cannot harm either the interests of the State or of individuals;

 

b. a longer closure period, which normally does not exceed fifty years, for documents or groups of documents relating to foreign affairs, defence and the maintenance of public order;

 

c. a variable closure periods (for example from 10 to 70 years after the closing of the file, or from 100 to 120 years after the birth of the individual concerned) for documents or files containing confidential legal, taxation, medical or other details concerning private persons.

 

Article 8

 

The definition of finding aids includes both those created by the agencies of origin (for example registers, indexes, files, docket books) as well as catalogues or repertories produced by archives services. The latter should indicate rules on access which apply to the documents described.

 

Article 9

 

The competent authority for the granting of special permissions for access, should be, according to circumstances, the creation agency after consultation with the Archives service, the administration of the Archives on the advice of the creating agency, or a single authority responsible for issuing authorisations for the whole country.

 

In defining the rules to be followed for granting special permission for access, the following aspects of the problem should be taken into account:

 

i. access for research purposes:

 

Special permission for access may be given according to two different procedures, ad actum or ad personam. Ad actum means that the documents made available as a result of special permission are permanently disclosed and become freely available.

 

Ad personam means that the documents made available by dispensation to a specified user retain their closed status, so that every user wishing to consult them should request special permission. However, in the case of the second procedure, it is necessary, as is underlined by the Recommendation, that for the same document, special permissions for access should be granted under the same conditions to all users who request it.

 

Legislation should provide for both possibilities, that is to say, disclosure before the access date provided by law and access by special dispensation. However it is desirable that when dealing with requests for special permission for access, the Archives administration should be authorised to recommend disclosure of the documents which are being requested.

 

ii. Access to documents containing personal data by the individuals concerned or their authorised representatives:

 

In this context, Archives administrations should apply the regulations prescribed by freedom of information and data protection legislation. If such laws do not exist, rules on special permission for access should be applied.

 

iii. Responsibility of users under private and criminal law:

 

If special permission for access is granted, users may be asked to sign a declaration under which they make an undertaking not to make public any information likely to bring injury to public or private interests, and that they accept full responsibility in case of legal proceedings.

 

It is the responsibility of the courts to decide upon the admissibility of such declarations in the case of a dispute.

 

Article 10

 

"Access to extracts" refers to the act of extracting from a file, before access is permitted to a user, of certain documents for which authorisation for access does not apply. The user does not therefore have access to the complete file, but only to an extract from it.

 

Access with partial blanking consists of making available to a user the totality of the records requested, having blanked out certain information.

 

Partial access, whether to extracts or with blanking, does not always permit a complete understanding of the document by the user. It may derogate the integrity of the file and by the act of extraction, reduces the exactitude of the information contained in the file. That is why the present recommendation requires that the user be informed of the partial nature of the access granted.

 

Article 11

 

It is desirable that it should be possible to address the first recourse against a refusal for special permission for access directly to the supervisory administration of the agency refusing access, prior to envisaging, if the case arises, an appeal to the courts.

 

In some countries, judicial recourse may be preceded by an appeal before a body set up for this purpose: a collegial commission, or an independent authority such as the ombudsman or parliamentary commissioner.

 

Article 12

 

As well as its official archives, the archival heritage of a country includes private archives (business, family, associations, religious, etc.) whose importance is equally fundamental to the establishment of the memory of the nation.

 

The activity of the state in relation to private archives should ordinarily have for its main aim the assurance of their protection and their good physical preservation. The arrangements for such action will vary according to the customs of each country.

 

The intent of the current article is to point out that arrangements for access to private archives should not be disregarded since this constitutes the ultimate purpose of their preservation.