Archives

SLOVAK ARCHIVAL ACCESS LEGISLATION AND PROPOSAL FOR AMENDMENTS FOR ARCHIVE SECTOR TO GENERAL DATA PROTECTION REGULATION – COMPARISON EBNA – EAG, 8th – 9th October 2013, Vilnius

Mária Španková [email protected]

LEGAL FRAMEWORK FOR THE ORGANISATION AND MANAGEMENT OF ARCHIVES IN THE SLOVAK REPUBLIC I. Act No 395/2002 Coll. on Archives and Registries and on Amendments of Certain Acts, as amended (entry in to force: 1st January 2003)

Regulates • the organisation and competence of state administration in the field of Archives and Registries, • the organisation of Archives, • rights and obligations of Archives founders, Archives, possessors of archives, • access to archives, • rights and obligations of registry creators.

LEGAL FRAMEWORK FOR THE ORGANISATION AND MANAGEMENT OF ARCHIVES IN THE SLOVAK REPUBLIC Defines • archives as records with a permanent documentary value important for knowledge of the history of Slovakia and the Slovak nation. Film records or audio records originating from before 1950 are archives. Library documents and collection items are not archives • Archival heritage of the Slovak Republic as a complex of archives, archive fonds and archive collections, except for foreign archives recorded in the Archival Heritage Register of the Slovak Republic. Archival heritage shall form an integral part of the cultural heritage of the Slovak Republic. The state shall be obliged to provide for the preservation of archival heritage and everyone shall be obliged to provide collaboration to the state with respect to it. • Archives as a specialised workplace that acquires, registers, and processes archives. The acquisition of archives, protection of archives, their processing and access to the information contained in archives, shall be subject to public interest.

The Act is applied to ALL registry records creators, archives creators, possessors of archives, and Archives founders except for • registry records originating from the activities of the intelligence services, • documents kept in collections of libraries, museums and galleries – they are not considered as archives. (these exceptions have been the conditions to pass the draft within the preparation procedure)

Organisation and competence of state administration in the field of Archives and Registries The National Archives Service • The Ministry of Interior of the Slovak Republic - the central state administration authority in the field of Archives and Registries. • State Archives established by the Ministry as institutions without legal personality. The Ministry is entitled to • work out the general development policies in the sphere of Archives and Registries, • issue the decrees, regulations, rules and standards and control legislation execution, • permit the establishment and dissolution of Archives and dissolve Archives in cases as stipulated by Act, • keep the register of Archives, archival information system and a list of persons performing specialised activities in Archives, pursuant to Act,

Organisation and competence of state administration in the field of Archives and Registries State Archives are delegated powers by the Ministry to •keep the register of registry creators and archival heritage, •execute professional state supervision over registry administration, Archives and archives stored at possessor that did not establish Archives, •approve the guidelines for registry administration and records schedules, •decide about the disposal of registry records, access and restrictions of access to the archives acquired (to archives originating from the activities of state authorities and legal persons established or founded by them, other legal persons stipulated by Act, self-governing regions, municipalities, and significant individuals under the territorial competence principle from national up to local level).

State Archives

• two State Central Archives: Slovak National Archives and State Central Mining Archives, • eight State Archives with Regional Territorial Competence, • and 37 offices of them located in the Districts.

The State Archives established by the Ministry represent the most important part of the system of Archives. The State Archives are the only decisive authority as far as the appraisal of documentary value of registry records is concerned. The State Archives keep the majority of the Archival Heritage of the Slovak Republic.

System of Archives In compliance with Act the Public Archives and Private Archives can be established. The Public Archives are • State Central Archives, State Archives with Regional Territorial Competence, • Archives of the state authorities, state budgetary organisations and state contributory organisations, • Municipal (towns) Archives, Archives of self-governing regions, • Archives of legal persons stipulated by law, • Archives of legal persons and Archives of physical persons that represent the public administration authorities. The Private Archives are the Archives of the legal persons (for example political parties, churches, private legal persons in the field of economy, banking, education and culture, etc.); they can be established by a physical person, as well.

Rights and obligations of Archives founders, Archives, possessors of archives (selection) Founders of Archives are obliged to •ensure that the tasks given to the Archives pursuant to Act are performed by persons with appropriate education and always at least one person with a university education specialised in archival studies archival studies and complementary historical sciences or related fields of study, •locate the archives in premises that ensure the protection of the archives and allow access to the archives. In documents attached to application founder ascertains that •he is able to financially provide the activity of the Archives so that the Archives may perform their tasks pursuant to the act •Archives have sufficient premises necessary for access to archives.

Rights and obligations of Archives founders, Archives, possessors of archives (selection) Archives is obliged to • process the archives including the elaboration of finding aids, • issue rules for research, (rules for research must be placed in a publicly accessible place within the Archives premises.) • allow access to archives, finding aids and the register of archives that it acquired. The possessor of archives is entitled to • restrict access to archives and determine the scope of restriction and period of its duration; access to archives may be restricted for 30 years, or for 50 years in the case of access restricted to ensure the protection of significant public interests. Rights and obligations of registry creators • Registry creators can restrict the access to the registry record stating period of restriction. • As to access to registry records the Act No 211/2000 Coll. on Free Access to Information and Amendments of Certain Acts (FOIA), as amended is applied.

ACCESS TO ARCHIVES Recommendation of Council of Europe No. R (200) 13 on European Policy on Access to Archives Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (documents used in the process of formulating basic principles of access provisions) Basic principles (transfer) As far as the transfer of archives is concerned •classified registry records are not the subject to disposal under Act. •no classified archives are transferred to the Archives. •transferred archives are usually older than ten years. •Civil registers are transferred to the State Archives 100 years after the last entry.

ACCESS TO ARCHIVES Access basic principles Everybody is allowed to access to archives transferred to Archives under the conditions stipulated by the Act. Access to archives is the right. All restrictions to it are strictly stipulated. There is no general closure period as a rule. The right to allow or restrict or refuse access is granted to the Archives only. Forms of access to archives:

transcripts, abstracts, certificates, copies, the study and public exhibition of archives Originals of archives for study purposes are submitted in exceptional cases only. Always copies, if – it concerns archives created before 1526, – it contains information with restricted access,

Access conditions access form

application form

transcripts, abstracts, certificates or copies written application (costs for copies, verification of conformity with original archives, verified copy substitutes the original; administrative charges for verified copies) study

research list

public exhibition

contract

(exceptional cases, covering of costs – copies, transport, insurance)

In written application an applicant specifies • personal identity information (name and surname, birth number (personal identifier), address of permanent residency or address of temporary residency; type and number of identification card; the applicant proves his identity by identification card, travel document (passport), military identification card, sailor’s book or a residence certificate), • legal person identity information (name, surname and address of a physical person or the name, seat and identification number of a legal person), for needs of whom he asks for access to the archives, • information about the required archives that he is aware of • purpose of use, • declaration stating whether he is the creator of the archives, his legal successor or the possessor of the archives. In research list an applicant specifies all data given in written application + – the subject of study, – declaration. (usage of the information taken from the archives for the purposes specified in the research list only; specification of the name of the Archives, the title of the archive fonds and the title and name of the processor of the finding aid from which the information was gained)

Access restriction to  Archival information system – accession book, – book of deposits, – information about the proprietorship of archives, – place of archives location stated in the register card of the archives, – or to personal data stated in a finding aid. (access right is not applied ex lege directly)  archives, if – upon their use, the safety of the state, its defence, foreign, political, economic or financial interests could be endangered or if it results from international treaties by which the Slovak Republic is bound, or from obligations resulting from its membership in international organisations (significant public interests), – upon their use, the rights or legally protected interests of living persons could be endangered, (duration of restriction must be specified; decision on the restriction on access is always based on the previous decision of the creator or possessor of archives, which he made when submitting them to the Archives) – upon their use, damage or the possibility of damage to them could occur, – it is specified in the conditions under which these were placed in the Archives, – the applicant seriously breached the research rules of the archives. (theft, destruction or damage of archives)

Archives can restrict access to archives if the archives are not processed. (based on real praxis) Act No. 71/1967 Coll. on administrative proceedings (the Code of Administrative Procedure), as amended refers to the procedure concerned the access restriction decision.

Access to archives cannot be restricted to •the creator, legal successor or possessor of archives, •state authorities, municipalities, self-government regions, other legal persons and physical persons in conjunction with their activity pursuant to special regulations, •an applicant, to whom the data contained in archives, refers, •if not concerning the restriction of access due to reasons referred to significant public interests, legally protected interests of living persons, physical condition of archives, breach of research rules, archives are not professionally processed or if the access was not restricted prior to disposal procedure.

Appeals against decision on access to archives restriction Appellate authorities (state authority, Ministry, court) If the decision on restriction of access to archives refers to archives placed in Archives kept by – a legal person established or founded by a state authority, this state authority shall decide in respect of this appeal; if it does not represent an authority of state administration, the Ministry shall decide in respect of the appeal, – other legal persons or physical persons, the Ministry shall decide about the appeal, – a municipality, a self-government region a court shall decide about the legal remedy against the decision.

Access to personal data in archives is possible

• after the expiry of 90 years from the day that the record was created, if not otherwise stipulated by a special act or international treaty, or • after submission of a written consent with the verified signature of a physical person, the personal data of whom it concerns or, if this physical person is no longer living, that of his legal representative or a close person.

II. Decree of the Ministry of Interior of the Slovak Republic No 628/2002 Coll. by which certain provisions of the Act on Archives and registries and on Amendments of certain Acts, as amended are executed Concerning • the appraisal and disposal of records/registry records, • transfer of archives, protection of archives/registry records, • Archival Heritage Register of the Slovak Republic, • access to archives.

• As far as the provisions on access are concerned in case, if Archives provide copies of archives for study, which contain information with restricted access, the Archives shall submit them without such information. The Act and the Decree has been subject of several amendments. No one and never in the field of access principles.

III. Personal data protection legislation (Act No. 122/2013 Coll. on personal data protection and on Amendments of Certain Acts) Personal data as an integral part of registry records are not the subject of liquidation without delay after achieving the purpose of processing. The controller provides the liquidation of such registry records pursuant to the special Act. Special Act is the Act on Archives and Registries. The documentary value of such records is appraised in the course of disposal procedure where the decision maker on their disposal or transfer to Archives is the State Archives. In case that these records have the permanent documentary value up on the decision of the State Archives the archives are transferred to the Archives; the decision includes the date of transfer, as well.

Complaints or appeals against a decision on the restriction/refusal of access to archives We register one complaint per year within the last 10 years. No one has been evaluated as well-grounded. The most frequent reasons:

• lack of archives versus mistrustful applicant/researcher, • seeking for access to personal data of other persons without their consent.

Slovak archival access legislation and proposal for amendments for archive sector to general data protection regulation – comparison Ministry of Interior of the Slovak Republic submitted two supporting statements to amendments for archive sector to general data protection regulation. Article 4, point 19 bis (new) « Archive services » : public authorities or, public services or legal persons who, following Union or State member law, have for main mission or legal obligation to acquire, preserve, appraise, arrange, describe, communicate, promote, disseminate and provide access to records of enduring value for general interest, in particular for justification of the rights of the people, or for historical, statistical and scientific purposes ; • Act No. 395/2002 Coll. on Archives and Registries and on Amendments of Certain Acts, as amended regulates the organisation and competence of state administration authorities in the field of Archives and registries, organisation of Archives, rights and obligations of Archives founders, Archives, possessors of archives, access to archives, as well as the rights and obligations of registry creators, • is applied to ALL registry records creators, archives creators, possessors of archives, and Archives founders, • system of Archives consists of Public Archives and Private Archives, • Archives is a specialised workplace that acquires, registers, and processes archives, • Archives is obliged to – process the archives including the elaboration of finding aids, – issue rules for research, – allow access to archives, finding aids and the register of archives that it acquired.

Conclusion: Definition is full in compliance with Slovak archival legislation.

Article 5, point (b) b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes; further processing of data for historical, statistical or scientific purposes, shall not be considered as incompatible subject to the conditions and safeguards referred to in Article 83; further processing of data by archive services, shall not be considered as incompatible subject to the conditions and safeguards referred to in Article 83bis. Article 5, point (e) (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the data will be processed (…) for historical, statistical or scientific (…) purposes in accordance with the (…) conditions of Article 83 and until it becomes apparent that continued storage is no longer necessary; or when they are being processed by archive services in accordance with the legislation of State members in accordance with the conditions of Article 83bis. Act No. 395/2002 Coll. on Archives and Registries and on Amendments of Certain Acts, as amended stipulates, that Access to personal data in archives is possible – after the expiry of 90 years from the day that the record was created, if not otherwise stipulated by a special act or international treaty, or – after submission of a written consent with the verified signature of a physical person, the personal data of whom it concerns or, if this physical person is no longer living, that of his legal representative or a close person, The Act defines access restriction to archives also in case, if upon their use, the rights or legally protected interest of living persons could be endangered,

Personal data protection legislation (Act No. 122/2013 Coll. on personal data protection and on Amendments of Certain Acts) stipulates, that • personal data as an integral part of registry records are not the subject of liquidation without delay after achieving the purpose of processing; • the controller provides the liquidation of such registry records pursuant to the special Act. Special Act is the Act on Archives and Registries. The documentary value of such records is appraised in the course of disposal procedure where the decision maker on their disposal or transfer to Archives is the State Archives. In case that these records have the permanent documentary value up on the decision of the State Archives the archives are transferred to the Archives; the decision includes the date of transfer, as well. Conclusion: Wording of Article 5 points (b) and € is full in compliance with Slovak archival legislation; Slovak data protection legislation is supporting archival legislation in terms of appraisal of documentary value of registry records.

Article 83, bis (new) Article 83 bis: After the initial purposes for which they have been collected have expired, personal data can be processed by archive services. The missions of communication and dissemination of personal data by such services are fulfilled in respect of the rules provided by the Member States for access, communication and dissemination of public information or archives. Member States shall provide for exemptions or derogations from the provisions on the general principles in Chapter II, the rights of the data subject in Chapter III, on controller and processor in Chapter IV, and the independent supervisory authorities in Chapter VI for the processing of personal data carried out by archive services, that is, by Union or Member State law, eligible for permanent preservation. Personal data protection legislation (Act No. 122/2013 Coll. on personal data protection and on Amendments of Certain Acts) stipulates, that •personal data as an integral part of registry records are not the subject of liquidation without delay after achieving the purpose of processing; •the controller provides the liquidation of such registry records pursuant to the special Act. Special Act is the Act on Archives and Registries.

Article 83,bis (new) The documentary value of such records is appraised in the course of disposal procedure where the decision maker on their disposal or transfer to Archives is the State Archives. In case that these records have the permanent documentary value up on the decision of the State Archives the archives are transferred to the Archives; the decision includes the date of transfer, as well. Act No. 395/2002 Coll. on Archives and Registries and on Amendments of Certain Acts, as amended stipulates, that Access to personal data in archives is possible – after the expiry of 90 years from the day that the record was created, if not otherwise stipulated by a special act or international treaty, or – after submission of a written consent with the verified signature of a physical person, the personal data of whom it concerns or, if this physical person is no longer living, that of his legal representative or a close person, Defines access restriction to archives also in case, if upon their use, the rights or legally protected interest of living persons could be endangered,

Conclusion: Wording of Acticle 83bis paragraph 1 is full in compliance with Slovak data protection archival legislation; is supporting archival legislation in terms of appraisal of documentary value of registry records. With reference to the wording of paragraph 2 it is providing welcomed possibility to elaborate well balanced provisions to protect the vital interests in terms of the right to protect personal data and „the right of the people to know their history and the principle of access to administrative information“.

Thank you for attention