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Proceedings of the XXXVth International Conference of 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

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Legal Framework for Appraisal1


Introduction
Legislation is an expression of the principles held most firmly by a state. Differences in legislation, interpretation, and application are linked to the varied history, legal tradition and experience of each state. The increased exchange of information within a country and across international boundaries and the proliferation of information technology provide a countervailing force in favour of cooperation and standardisation. Legislation related to the archival (or as it should be called the cultural) heritage should today be associated with the management of current/electronic documents. Legislation about access to documents has become a very important issue in many states and should be closely linked to legislation about archives/records management. This is expressed in the Principles for Archives and Current Records Legislation, produced by the International Council on Archives (ICA) Committee on Archival Legal Matters, which were presented to the ICA at the 1996 Congress in Beijing (printed in Janus 1997:1). In Article 11 Appraisal and destruction of the Principles, it is said that: All archival legislation should define the respective roles of the National Archives and the various government departments for the appraisal and destruction of records. The legislation should specify the formal responsibilities for appraisal and destruction of records and define one authority as ultimately responsible for these functions. Archival legislation should unequivocally oblige all bodies creating state records not to destroy them without the consent of the National Archives. This statement reflects the legislation in many countries. The reasons and thinking behind this emanate mainly from conditions in a society where paper was the dominant carrier of information. Today, we have a different situation. Firstly, there has been a dramatic 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 that legislative work both on the national level as well as on the international level has in recent years been focused on access. In this context, appraisal or deletion/destruction of records 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, has similarly affected government. ICT is changing public expectations of the ease of accessing, duplicating and delivering official documents and other services. We must realise that todays technology will rapidly become obsolete or be altered beyond recognition within a few years. It is a fact all over the world that public administration must make effective use of ICT. Many governments are heading towards what can be
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I am deeply indebted to Mr. Patrick Cadell, the former Scottish National Archivist, for his valuable advice and comments.

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called electronic government. The result has been an enormous production of documents in electronic form. It is also a fact that ICT has made many things possible which were not conceivable only a few years ago. This has led to complexity in the information created. As a consequence, archival institutions have to decide if they are going to cover all 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 and appraisal/destruction of documents. Besides the very evident factors of the enormous mass and the very complex nature of information in documentary form, we also have to face the question of what appraisal/destruction shall cover. It should cover all official documents emanating from all kinds of agencies regardless of level. It could also be argued that it should cover privatised public functions or bodies which are financed by the public sector. Here it can be difficult to draw clear borders. Regarding documents coming from the private sector, the legislator by tradition is much more reluctant to interfere, 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 is also in the private sector a growing need, partly caused by legislation, to keep documents. As an example, you can take the pharmaceutical area, which can be said to be 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 and Drug Administrations new regulation on Electronic Records; Electronic Signatures. A key requirement here is that records created electronically must be maintained elctronically throughout their lifecycle. These conditions (i.e. legal needs) are likely to be more or less the same in the environmental and chemical industry, the car and aircraft industry and so on. Of course, there are differences in the public sector, where usually legislation demands that documents shall also be kept for the sake of researchers and the use of genealogists as a part of the cultural heritage. This kind of legal obligation does not as a rule occur in the private sector. The result will be that far more documents from the public 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 much more discussed. In the paper environment, it is easy to define destruction as the destruction of the paper with the text. In the electronic environment, this issue has to my knowledge not generally been clearly expressed in legislation. In Sweden as in many countries the law only says that documents may be disposed of. The National Archives has defined destruction in its own regulations: Destruction: destruction of official documents and information in official documents Destruction of documents / information in connection with transmission to another data 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 independent municipal/local government sector follow from the obligations laid down in the Freedom of the Press Act. The main reason for them is that the public should continue to have access to certain information, kept by agencies in uncorrupted form, regardless of the medium in which the information is stored. If public access to documents were not assured to this extent in an electronic environment, where information is easier to access,

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the principle of equal access would not be fulfilled. According to this principle, the public and in the long-run researchers who will also benefit from this should have the same access to information as the public authorities. Accordingly, the archival legislation and our work are aimed at preserving the text and the context, that is the principle 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 it will be necessary to know what the original text and context were. If this is not adequate it can be seen as destruction and a reduction of your legal rights. For long- term use, and for 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 agencies or 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 regard to the processing of personal data and of the free movement of such data from 1995 provides 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 is applicable to automatic processing of data as well to manual processing. Obviously, the problem is how to reconcile the data protection legislation, where personal data should be destroyed after having been used for its purpose, with the evident need to preserve relevant material for different kinds of legitimate access, for example social and historical research. The directive allows, however, the keeping of personal data for longer periods provided they are kept for historical, statistical and scientific use and appropriate 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. In this process, the archival sector should be active and try to ensure the the directive recognises the need to preserve some personal data for future needs, not just for longer but finite periods. We should try to get it recognised that established archival institutions could serve as safe repositories for personal data. Access to such personal data which are exempted 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 data remains a general problem and that it is very difficult to find satisfactory rules for weighing the interests involved.

The growing awareness of access


In recent decades, the question of public access to official documents has been very much in the focus all over the world. Many countries have passed or will pass various kinds of access legislation. The Universal Declaration of Human Rights establishes the right 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 other tools) or if the information has been destroyed. On the supranational level, the EU in May 2001 passed a regulation regarding public access to European Parliament, Council and Commission documents. This regulation says that even though it is neither the object nor the effect of this regulation to amend national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyal cooperation, which governs

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relations between the institutions and the member states, member states should take care not to hamper the proper application of this regulation and should respect the security rules of the institution. In the regulation, it is said that each institution shall provide access to a register of documents. Nothing is said about deletion. Within the Council of Europe, 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 exercise their 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, the section 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 these electronic documents is particularly stressed, to provide lists of the documents held. Here, destruction is recognised as an impediment to access. It is evident that destruction is a much greater threat to access to documents than is the classification of documents as secret. When a document is subject to privacy rules, it is still there and an appeal can usually be launched against a refusal. Furthemore, the privacy rules are usually detailed and elaborated and carefully stated in the articles in this kind of legislation. I believe that the legislator in the near future will attach much more interest to regulating appraisal/destruction of documents, now that the first steps regarding access legislation have 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 the mountains of documents on all types of media piling up, thanks to their creators, we had 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 of decades ago. Archivists have up to now perhaps tended to discuss various techniques for appraisal and selection, sometimes from a more theoretical point of view. Of course this is very important. But perhaps this has been seen too much as a pure archival problem what 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 its knowledge, when for example deciding about deletion of personal data. I firmly believe that the cooperation between different parts of society must be strengthened and that it is necessary to break down walls. Archival work should be seen as consisting of various but integrated parts, inventorying and registering, authenticity and reliability, transfer of documents to archival institution, appraisal/destruction. This has been said many times in the past. But now is the time to harmonise these principles with the legislators work, as this can be seen as the ultimate product of the wishes of society.

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To this end, I believe that we within the ICA have to continue the cooperation with, for example, 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 in electronic 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 by investigating a region, as it will obviously be very difficult to cover all the regions in the whole world at the same time. Appraisal/destruction should be addressed by several of the ICA committees and bodies and ICA should be charged with co-ordinate these efforts and disseminating the results. Even so, it will take a lot of resources to carry out the study, coordination and work as suggested above.

Claes Grnstrm