Legal Framework For Appraisal
Claes Gränström
Riksarkivet, Sweden
1. 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. 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.
In the Principles for Archives and Current Records Legislation, it is said in article 11 "Appraisal and destruction" 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.
In this context, appraisal or deletion/destruction of records or documents has not yet received the same attention in legislation as access.
2. The Enormous Mass and Complex Nature of Documents
The technology revolution, which has transformed almost every aspect of life, has similarly affected government. Information Communications Technology (ICT) is changing public expectations about the ease of accessing, duplicating and delivering official documents and other services. It is a fact all over the world that public administration must make effective use of ICT.
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.
Of course, there is a great difference with the public sector, where usually legislation demands that documents which are part of the cultural heritage shall also be kept for the sake of researchers and the use of genealogists.
3. What is Deletion or Appraisal?
In the electronic environment, the issue of what destruction means must be discussed further. 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 not to my knowledge 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 in its own regulations defined destruction.
The main reason is that the public should continue to have access to certain information, kept by the 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, the principle of equal access would not be fulfilled. According to this principle, the public — in the long run researchers will also benefit from this — should have the same access to information as the public authorities. Accordingly, archival legislation and work are aimed at preserving the text and context.
If you choose to do it in another way, this way must be described and defined, preferably in law.
4. 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 solutions and the application of laws protecting personal data differ from country to country within Europe. At this time, the directive of 1995 is undergoing evaluation and will perhaps accordingly be amended. In this process, the archival sector should be active and try to promote the need to preserve some personal data for future needs — not just for the immediate future. 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.
5. The Growing Awareness of Access
During the last decades, the question of public access to official documents has been very much in focus all over the world.
It is evident that destruction is a much greater threat to access to documents than the classification of documents — that is, secrecy. When a document is under privacy rules, the document still exists and an appeal can usually be launched against a refusal. Furthermore, 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.
6. Conclusions and Recommendations
It is quite true that we — as stated 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 what is perhaps missing is that what has been seen until now as a pure archival problem is fast becoming a crucial issue in our electronic society. The legislator has on their side not paid enough attention to the archival sector and its knowledge, when for example deciding about the deletion of personal data.
I believe that we have to continue within the ICA to cooperate with the European Union and Council of Europe, to further study how appraisal/destruction is carried out, what is regulated in law, what appraisal/destruction is in an electronic environment etc. To this aim, one suggestion could be to collect all kinds of legal requirements and put them in a database. Appraisal/destruction should be the topic of several of the ICA committees and bodies and the ICA should have the task to coordinate these efforts and to publish the results. Even so, it will take a lot of resources to carry out the study, coordination and work suggested above.
Claes Gränström
Claes Gränström studied Latin, Classical Archaeology and History at the University of Lund and wrote his thesis about sources in Swedish medieval history. In 1969 he moved to the National Archives in Stockholm. At present he is Deputy Director General of the National Archives. He has, in recent years, worked with the problems and possibilities of electronic records from various aspects such as record life cycle, appraisal, cataloguing, availability, security, sensitivity and integrity. For the purpose he has in various capacities taken part in the work of several government committees, which have dealt, amongst other things, with freedom of information act legislation, privacy and data protection legislation, copyright and archival legislation, mainly concerning electronic information. He is currently Chairman of the ICA Committee on archival legal matters and member of the DLM-Monitoring Committee.