Cadrul legal pentru Evaluare

7/31/2019 Cadrul legal pentru Evaluare

1/6

Comma 2002.1-2

Proceedings of the XXXVth International Conferenceof the Round Table on Archives

Reykjavik, Iceland, 10-13 October 2001

Actes de la XXXVe Confrence internationale

de la Table ronde des Archives

Reykjavik, Islande, 10-13 octobre 2001


2/6

Comma, 2002 - 1/2 - Claes Grnstrm 67

Legal Framework for Appraisal1

Introduction

Legislation is an expression of the principles held most firmly by a state. Differences inlegislation, interpretation, and application are linked to the varied history, legal traditionand experience of each state. The increased exchange of information within a countryand across international boundaries and the proliferation of information technologyprovide a countervailing force in favour of cooperation and standardisation. Legislationrelated to the archival (or as it should be called the cultural) heritage should today beassociated with the management of current/electronic documents. Legislation aboutaccess to documents has become a very important issue in many states and should beclosely linked to legislation about archives/records management. This is expressed in thePrinciples for Archives and Current Records Legislation, produced by the InternationalCouncil on Archives (ICA) Committee on Archival Legal Matters, which were presented

to the ICA at the 1996 Congress in Beijing (printed inJanus 1997:1).In Article 11 Appraisal and destruction of the Principles, it is said that: Allarchival legislation should define the respective roles of the National Archives and thevarious government departments for the appraisal and destruction of records. Thelegislation should specify the formal responsibilities for appraisal and destruction ofrecords and define one authority as ultimately responsible for these functions. Archivallegislation should unequivocally oblige all bodies creating state records not to destroythem without the consent of the National Archives.

This statement reflects the legislation in many countries. The reasons and thinkingbehind this emanate mainly from conditions in a society where paper was the dominantcarrier of information. Today, we have a different situation. Firstly, there has been adramatic acceleration in the development of information and communication technology(ICT) during recent years which has led to an enormous production of information,which to a great extent consists of records or documents in computerised format.Secondly, there has been a growing demand for access all over the world as a

consequence of the increasingly important concept of openness. It can be said thatlegislative work both on the national level as well as on the international level has inrecent years been focused on access. In this context, appraisal or deletion/destruction ofrecords or documents has not yet received the same attention in legislation as access.

The enormous mass and complex nature of documents

The technology revolution, which has transformed almost every aspect of life, hassimilarly affected government. ICT is changing public expectations of the ease ofaccessing, duplicating and delivering official documents and other services. We mustrealise that todays technology will rapidly become obsolete or be altered beyondrecognition within a few years. It is a fact all over the world that public administrationmust make effective use of ICT. Many governments are heading towards what can be

1 I am deeply indebted to Mr. Patrick Cadell, the former Scottish National Archivist, for his valuable adviceand comments.


3/6


called electronic government. The result has been an enormous production of documentsin electronic form. It is also a fact that ICT has made many things possible which werenot conceivable only a few years ago. This has led to complexity in the informationcreated. As a consequence, archival institutions have to decide if they are going to coverall new areas of the created information or if they have to refrain from some, such as

pharmaceutical, environmental, meteorological, biomedical, genetic .This means that society has to face a new situation regarding the preservation andappraisal/destruction of documents. Besides the very evident factors of the enormousmass and the very complex nature of information in documentary form, we also have toface the question of what appraisal/destruction shall cover. It should cover all officialdocuments emanating from all kinds of agencies regardless of level. It could also beargued that it should cover privatised public functions or bodies which are financed bythe public sector. Here it can be difficult to draw clear borders. Regarding documentscoming from the private sector, the legislator by tradition is much more reluctant tointerfere, even if it is evident that these documents can be of immense value to society.You can see, however, that there are emerging signs that society will interfere even here.Traditionally, there have been regulations about keeping accounts etc. Today, there isalso in the private sector a growing need, partly caused by legislation, to keepdocuments. As an example, you can take the pharmaceutical area, which can be said tobe a very regulated industry. Its information is required to be kept for many decades,

through the life of a drug product. The major driver for this is the United States Food andDrug Administrations new regulation on Electronic Records; Electronic Signatures.A key requirement here is that records created electronically must be maintainedelctronically throughout their lifecycle. These conditions (i.e. legal needs) are likely tobe more or less the same in the environmental and chemical industry, the car and aircraftindustry and so on.

Of course, there are differences in the public sector, where usually legislationdemands that documents shall also be kept for the sake of researchers and the use ofgenealogists as a part of the cultural heritage. This kind of legal obligation does not as arule occur in the private sector. The result will be that far more documents from thepublic sector will be kept than from the private sector with obvious consequences.

What is deletion or appraisal?

In the electronic environment, the question of what destruction means must be muchmore discussed. In the paper environment, it is easy to define destruction as thedestruction of the paper with the text. In the electronic environment, this issue has to myknowledge not generally been clearly expressed in legislation. In Sweden as in manycountries the law only says that documents may be disposed of. The National Archiveshas defined destruction in its own regulations:

Destruction: destruction of official documents and information in officialdocuments

Destruction of documents / information in connection with transmission to anotherdata carrier is disposal if the transmission means

loss of information loss of possible combinations of information loss of searching possibilities and loss of possibilities to the authenticity of information.

These rules in Sweden applicable only in the state sector and not in the independentmunicipal/local government sector follow from the obligations laid down in theFreedom of the Press Act. The main reason for them is that the public should continue tohave access to certain information, kept by agencies in uncorrupted form, regardless ofthe medium in which the information is stored. If public access to documents were notassured to this extent in an electronic environment, where information is easier to access,


4/6


the principle of equal access would not be fulfilled. According to this principle, thepublic and in the long-run researchers who will also benefit from this should have thesame access to information as the public authorities. Accordingly, the archivallegislation and our work are aimed at preserving the text and the context, that is theprinciple of provenance according to our interpretation.

If you choose to do it in another way, then that way must be described and defined,preferably in law. From this it follows that, within a legal framework, in appraisal work itwill be necessary to know what the original text and context were. If this is not adequateit can be seen as destruction and a reduction of your legal rights. For long- term use, andfor researchers, the result can be that the original text or context cannot be accessed.

The conflict between deleting and preserving personal data

Data protection laws usually demand that personal data that are stored by public agenciesor private bodies but are no longer needed for the original purpose shall be destroyed.The Directive of the European Union (EU) on the protection of individuals with regardto the processing of personal data and of the free movement of such data from 1995provides the framework for the development of the data protection legislation in the EU

member states and in the candidate and associated states of the EU. This directive isapplicable to automatic processing of data as well to manual processing. Obviously, theproblem is how to reconcile the data protection legislation, where personal data shouldbe destroyed after having been used for its purpose, with the evident need to preserverelevant material for different kinds of legitimate access, for example social andhistorical research. The directive allows, however, the keeping of personal data forlonger periods provided they are kept for historical, statistical and scientific use andappropriate safeguards are taken. This should be elaborated in national legislation.

The solution and implementation of data protection legislation differs within Europe.At present the 1995 directive is subject to evaluation and will perhaps be amended. Inthis process, the archival sector should be active and try to ensure the the directiverecognises the need to preserve some personal data for future needs, not just for longerbut finite periods. We should try to get it recognised that established archival institutionscould serve as safe repositories for personal data. Access to such personal data which areexempted from destruction should also be regulated in law so that public confidence is

upheld. This must be done both at directive level (in the EU) and in national legislation.To quote Hans Peter Bull from the 1997 CITRA in Edinburgh:

It is obvious that the conflict between deleting and preserving personal dataremains a general problem and that it is very difficult to find satisfactory rules forweighing the interests involved.

The growing awareness of access

In recent decades, the question of public access to official documents has been verymuch in the focus all over the world. Many countries have passed or will pass variouskinds of access legislation. The Universal Declaration of Human Rights establishes theright to seek and receive information (article 19). This right will be of no value if there is

no practical possibility to access information (no inventories/lists/descriptions or othertools) or if the information has been destroyed. On the supranational level, the EU inMay 2001 passed a regulation regarding public access to European Parliament, Counciland Commission documents. This regulation says that even though it is neither the objectnor the effect of this regulation to amend national legislation on access to documents, itis nevertheless clear that, by virtue of the principle of loyal cooperation, which governs


5/6


relations between the institutions and the member states, member states should take carenot to hamper the proper application of this regulation and should respect the securityrules of the institution. In the regulation, it is said that each institution shall provideaccess to a register of documents. Nothing is said about deletion. Within the Council ofEurope, there is work going on regarding a recommendation to official information. The

work is not completed yet but in one draft says: Member States shall take the necessary steps to ensure that applicants can exercisetheir rights. To this end, public authorities shall manage their documents efficiently so that documents are easily accessible. apply clear and established rules for preservation and destruction of their

documents set up, as far as possible, publicly available lists, registers or files of the

documents held by the public authorities.

In the Explanatory Memorandum which will accompany the Recommendation, thesection of recommendation will be expanded to invite public authorities: to provide the necessary consultation facilities (equipment, reading rooms etc.), to take note of the need for physical security of documents, both traditional archives

and electronic documents. The obsolescence of the systems underlying theseelectronic documents is particularly stressed,

to provide lists of the documents held.

Here, destruction is recognised as an impediment to access. It is evident that destructionis a much greater threat to access to documents than is the classification of documents assecret. When a document is subject to privacy rules, it is still there and an appeal canusually be launched against a refusal. Furthemore, the privacy rules are usually detailedand elaborated and carefully stated in the articles in this kind of legislation. I believe thatthe legislator in the near future will attach much more interest to regulatingappraisal/destruction of documents, now that the first steps regarding access legislationhave been taken.

Conclusions and recommendations

Jean-Pierre Wallot, at the CITRA meeting in Stockholm in 1998, said that: because we are facing the impossible task of appraising and sorting themountains of documents on all types of media piling up, thanks to their creators, wehad to make major changes to several of our practices.

It is quite true that we as noted above have a different situation today than a couple ofdecades ago. Archivists have up to now perhaps tended to discuss various techniques forappraisal and selection, sometimes from a more theoretical point of view. Of course thisis very important. But perhaps this has been seen too much as a pure archival problemwhat is missing is the appreciation that it will be a crucial issue in the electronic society.On their side the legislators have not paid enough attention to the archival sector and itsknowledge, when for example deciding about deletion of personal data.

I firmly believe that the cooperation between different parts of society must bestrengthened and that it is necessary to break down walls. Archival work should be seenas consisting of various but integrated parts, inventorying and registering, authenticityand reliability, transfer of documents to archival institution, appraisal/destruction. Thishas been said many times in the past. But now is the time to harmonise these principleswith the legislators work, as this can be seen as the ultimate product of the wishes ofsociety.


6/6


To this end, I believe that we within the ICA have to continue the cooperation with, forexample, the EU and Council of Europe, to make further studies of how appraisal /destruction is carried out, what is regulated in law, what appraisal/destruction is inelectronic environment and so on. To achieve this, one way could be to create a database

of all kinds of legal requirements. One should furthermore analyse definitions,terminology and mandates of National Archives and other agencies and bodies involved.Both supranational and national legislation should be targeted. One might start byinvestigating a region, as it will obviously be very difficult to cover all the regions in thewhole world at the same time. Appraisal/destruction should be addressed by several ofthe ICA committees and bodies and ICA should be charged with co-ordinate theseefforts and disseminating the results. Even so, it will take a lot of resources to carry outthe study, coordination and work as suggested above.

Claes Grnstrm

Cadrul legal pentru Evaluare

Documents

Transcript of Cadrul legal pentru Evaluare