Since the beginning of the archive existence in 1990, as of 30 June 2019, a staggering 7,263,501 requests have been addressed to the archive for consultation or access to its archival records, of which 3,282,078 were made by citizens! This represents an average of over 100,000 requests from citizens per year and a total of about 240,000 requests per calendar year. The Stasi Records Archive is also able to provide data on the development of research interest. While in 2011 and 2012 there were still over 80,000 requests from citizens, in 2013–2015 the numbers were between 60,000 and 70,000 and in 2016–2018 the numbers dropped to about 45,000–49,000 requests. These astonishing fgures, however, correspond with the similarly surprising total number of Stasi Records Archive employees of totalling 1440 at the headquarters and including branches (as of 1 January 2019)!

A characteristic feature of the access to Stasi archival records is the high specifcity of the rules of access to archives maintained in the Stasi Records Archive as well as the complexity of the aspects taken into account when deciding on granting access to Stasi material. Although closure periods are one of the tools used in the process of opening access to Stasi records, the whole system is primarily built on the consideration of several levels. The frst aspect is the person of the researcher requesting access to the archival records (= "for whom the archives are intended"). The second aspect considers the category of persons concerned in the archives, that is, whether they are victims of the regime, Stasi employees, and so on (= "who the archives concern"). Other aspects are also considered. These include in particular the purpose of consultation, that is, whether it is for personal use, research purposes, media, and so on. But the considerations also look into how the information obtained will be further used by the researcher (scholarly publication or another professional output, publication in the media, personal use only, etc.). One more very specifc criterion is also taken into account, namely how the information contained in the archives was obtained.

The last aspect concerning the manner in which the information was obtained by the record creator, that is, in this case the Stasi, rarely appears in the practice of granting access to archives. This shows the specifc nature of the Stasi, which served both as a secret state police and as an intelligence service with internal as well as external operations. As such, it obtained and collected data (not only) on the citizens of the former DDR, including highly sensitive data. Many of the Stasi methods violated basic human and civil rights, especially the protection of personality and privacy, whether it be wiretapping, violations of domestic freedom, secrecy of correspondence, and so on.

To this day, intelligence services, even in developed democracies, are reluctant to disclose their records and usually do not do so at all or only disclose absolute torsos of "their" material.79 They even resist the actual transfer of records they maintain to public archives. In some cases, they even have the legal authority to do so and do so on perfectly legitimate grounds. These include, in particular, the necessary confdentiality of intelligence activities and, along with this, the protection of intelligence sources, which in some countries is one of the reasons for extending the records classifcation periods, if such exist. This is the case, for example, in the USA in the latest Presidential Executive Order on classifed information issued by President Barack Obama.80 The protection of intelligence sources is also one of the reasons used by the British intelligence service, MI6 (Secret Intelligence Service), to justify not disclosing any of its records without any time limit, starting in 1909, when it was set up, until present day and even into the future as MI6 does not envisage transferring any of its records to the British National Archives.81

In this respect, the situation with the former Stasi records is quite the opposite. The protection of the identity of intelligence sources and the identity of Stasi employees is not a reason not to disclose Stasi material. The only reason is the protection of the personality rights of the persons concerned in the archival records. The strongest protection is offered to those who were affected by the regime or third parties, while Stasi employees and collaborators remain the least protected; in their case, the protection only covers their private and intimate lives.

The Stasi archives also explicitly apply post-mortem protection of personality and privacy; it does so by applying closure periods recognised for

79For more bibliographic references, see also Č tvrtník, M. (2022). Classifed Records and the Archives. *Archival Science*, 2022, 129–165. https://doi-org.ezproxy.lib.cas. cz/10.1007/s10502-021-09370-3

80Executive Order 13526 (Classifed National Security Information) of 29 December 2009, Sec. 1.5 (a).

81Cf. The National Archives, Intelligence and security services. https://www.nationalarchives.gov.uk/help-with-your-research/research-guides/intelligence-and-securityservices/#5-mi5-and-mi6-records. Cf. also Cobain, I. (2016). *The History Thieves*. Portobello Books, p. 244.

a group of persons affected by the regime or third parties, amounting to 30 years after the date of death.82 However, for the purposes of scientifc research, these periods may be reduced to 10 years after the death of the person concerned. These periods, however, do not apply to Stasi employees and collaborators, and to public fgures, political offce-holders, public offcials, and so-called persons of contemporary history ("Personen der Zeitgeschichte"). However, in parallel to the system of closure periods, the already mentioned "legitimate interests" of the people come into play in the case of the documents of the former Stasi as well as in the case of the records of other public archives in Germany. The "legitimate interests" are not limited by any fxed period, although, based on the case law of the German Federal Supreme Court and the Constitutional Court cited above, their protection is not indefnite. Some form of protection is recognised for all categories of persons, including Stasi collaborators, "persons of contemporary history" and, of course, persons affected by the regime. Naturally, the appraisal standards are not identical. The strongest protection is indisputably applied to those affected by the regime, whereas when it comes to Stasi collaborators and employees, only their intimate lives are protected.

In conclusion, the model of personality and privacy protection in the case of the Stasi records maintained in the Stasi Records Archive is built on the principle of multi-criteria assessment of access requests. Personality protection is not provided by the simple application of certain closure periods. While these are also implemented as one of the tools, they are complemented by and combined with other criteria.

The model of access to Stasi archives is characterised by high specifcity of the access rules. In principle, it is based directly at the legislative level but the possibility of such a specifcation of the conditions of access is facilitated by the fact that it concerns a very narrow range of archival record groups and the data contained therein. This makes it all the easier to defne precise rules of access. At the same time, it is necessary to bear in mind that the records in question were created by an organisation which combined the role of the secret police and the activities of today's intelligence services operating both internally and externally. They are therefore records which, in other circumstances, would never have been disclosed to the public. Their disclosure was driven by the change of the regime and

82 Stasi-Unterlagen-Gesetz, § 32.

the need of the newly formed democratic society to come to terms with its own totalitarian past.

In spite of this, the access model can in many ways be inspiring for other categories of archives. This is also true in spite of the specifc place the Stasi Records Archive holds in the network of German archives; this archive and its activities, together with the law defning its work, have in some cases become a precedent for the procedures, or rather some specifc controversial cases of access to archival records maintained in other German archives, as we have seen in the case of the mental health records of the German actor, Klaus Kinski.

However, the multi-criteriality of the aspects taken into account and assessed when deciding on the disclosure of archival records implemented as a tool for the protection of personality and privacy, including postmortem protection, is appropriate and, in certain—albeit obviously differently modelled—circumstances, applicable in other countries, not only within the European Union.

In the following chapter, let us look at several different tools used by some other archival systems in Europe to protect personality rights and privacy of those concerned in archival materials. In doing so, I will focus on France and the United Kingdom, which together represent quite contradictory legal systems of common and continental law.

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## Personality Rights, Privacy, and Post-mortem Privacy Protection in Archives: France and United Kingdom

Personality protection in the context of archiving has a specifc feature, namely that it is often impossible to clearly determine whether or not a particular case involves a living person. For this reason, archival law introduces mechanisms in which the protection of both the living and the deceased intertwine. A typical and most striking example is the institute of closure periods. This chapter introduces the tool of closure periods in international comparison using what is probably the most elaborate system developed in the French archival sector. The precisely structured system of closure periods in France has a number of inspirational moments that can be used in a wide range of other archive systems across countries that often suffer from signifcant defciencies in this feld.

Closure periods, however, are mentioned in this chapter primarily in the context of the analysis of other personality and privacy protection tools relating to the archival sector.1 But similarly, some other protection mechanisms address the living and the deceased inseparably, as is the case, for example, of the French system of derogations to access, under which it is often impossible to determine whether the persons concerned are living or deceased. Alternatively, some archival mechanisms for the protection of personality and privacy may be applied similarly to living and deceased

1Closure periods are discussed in detail in Č tvrtník, M. (2021). Closure periods for access to public records and archives. Comparative-historical analysis. *Archival Science*, 21(4), 317–351. https://doi.org/10.1007/s10502-021-09361-4

© The Author(s) 2023 M. Č tvrtník, *Archives and Records*, https://doi.org/10.1007/978-3-031-18667-7\_3 persons, such as the public interest test, which will be addressed in detail using the example of the United Kingdom. In this chapter we take a detailed look at the sophisticated UK system of public interest testing in the area of access to information, records, and archives, and the protection of data they contain, which takes place on several levels. One of those levels is directly tied to the so-called historical records, the main collection of which is maintained in archives.

#### 3.1 France: General and Individual Derogations and Differentiated System of Closure Periods— Liberal-Centrist Approach

The French archival system applies several tools to protect the personality and privacy of the actors of archival materials. One of the tools at the basic level, it is the system of closure periods. On the one hand, France liberalised access to records, in a ground-breaking move in 2008, when it removed these general periods which prevented access to the archives for 30 years after the record was created.2 Not only in this respect, when France has followed a much more liberal trend than most other countries, but also through the introduction of other tools, the conclusions reached by Livia Iacovino and Malcolm Todd cannot be seen as valid, even though their study was published just before the removal of the 30-year closure periods.3 However, France has maintained several closure periods for certain selected groups of archives.4

2Closure periods have been removed by an amendment to the Code du patrimoine [Heritage Code] (Code du patrimoine of 20 February 2004. Ordonnance no. 2004–178 du 20 février 2004 relative à la partie législative du code du patrimoine) that also gives legal framework to present-day archiving. Cf. Loi n° 2008–696 du 15 juillet 2008 relative aux archives, amending Sec. no. 213–1 in the original text of the Code du patrimoine of 20 February 2004. On the protection of personal data in France with overlaps into international comparison, cf. the monothematic issue of Gazette des archives: *Archives et coopération europééne: enjeux, projets et perspectives. Les données personnelles, entre fchiers nominatifs et jungle Internet*. La Gazette des archives, 215, 2009(3).

3 Iacovino, L., Todd, M. (2007). The long-term preservation of identifable personal data: a comparative archival perspective on privacy regulatory models in the European Union, Australia, Canada, and the USA. *Archival Science*, 7, 107–127. https://doi.org/10.1007/ s10502-007-9055-5, p. 117.

4Closure periods for individual categories of records are specifed in Code du patrimoine, Article L213–2. On the perspective of public administration relationship with the public, cf. Code des relations entre le public et les administrations, Article L311–5.

The specifc access regime subject to closure periods applies to those groups of archives that enter the feld of personality protection from different sides. Records containing matters of medical privacy constitute a special group of material. These may be disclosed 25 years after the death of the person concerned. If the date of death is unknown, the period is determined to 120 years after the date of birth.5 In the broadest sense, however, the protection of personality is to be implemented by the provision declaring a time limit for access to archives concerning a person's private life ("*protection de la vie privée*"). This period is 50 years after the creation of the record.6 Apart from this general period, for certain types of records concerning personal privacy, the periods are even longer. At the earliest, 75 years after their creation or 25 years after the death of the person concerned, records of a statistical nature collected by means of questionnaires and containing data on a person's privacy may be disclosed.7 The same period also applies to access to police records, general part of court fles, and registers of births and marriages. In the case of minors, the period is extended to a full 100 years.8 The extremely long 100-year period (or 25 years after the death of the person concerned) applies to certain court fles, such as those relating to intimate sex life. Hervé Lemoine (the highest representative of French archival sector in 2010–2017) and Bruno Ricard, in 2019 the newly appointed Director of the French National Archives, with an allusion to GDPR, aptly called these closure periods protecting records relating to private life "temporary right to be forgotten" ("droit à l'oubli temporaire").9

As we can see, France is implementing a very detailed and structured system of closure periods, which is defned in the Heritage Code (Code du patrimoine), that is, directly in the legislation regulating the archival sector. However, this system of closure periods is not the only means by which the protection of personality in archives is implemented. The second level of protection is represented by the French specifc system of access to public archives under the so-called accès par dérogation.

5Code du patrimoine, Art. L213–2-I, Sec. 2.

9Lemoine, H., Ricard, B. (2018). Les données personnelles dans les archives publiques françaises. Loi, accès et sécurité. In K. Van Honacker (Ed.), *The right to be forgotten vs the right to remember*. VUBPRESS Brussels University Press, p. 71.

6Code du patrimoine, Art. L213–2-I, Sec. 3.

#### *3.1.1 France and the Model of General and Individual Derogations*

Bearing in mind that the issue of balancing two principles and citizen rights, that is, protection of personality rights and privacy, on the one hand, and open access to public records and information on the other, is always at the heart of the problem, French archiving and the public administration in general introduced a second institute to counterbalance the restrictiveness of closure periods. As early as the 1970s, France passed a law on improving the relationship between public administration and the public, declaring a radical openness of access of records created by public administration to citizens.10 Yet, this trend of promoting a radically liberal, open, and transparent access to records produced by public administration can be observed in France for much longer, at least since the Enlightenment and the French Revolution.

The French specifc system of access to public archives under the socalled accès par dérogation is intended to provide a suffcient counterbalance of free access to information on one side and data protection, including protection of personality and privacy, on the other. Under certain circumstances, it allows access to archival records subject to closure periods. However, this system itself seeks to implement the protection of personality and privacy. This is reinforced, among other things, by the fact that it distinguishes two types of access under derogations, namely general derogations and individual derogations, with the latter forming the larger part.11 Under **individual derogations**, access is granted exclusively to a particular requestor (it is strictly prohibited for the requestor to enter the research room accompanied) after taking into account not only the nature of the requested records but also the personality of the researcher, their motivation for access, and purpose of research. The right to decide on access is then reserved directly to the relevant ministries. The basic principle when assessing requests is that access is provided to the extent that

10Loi n° 78–753 du 17 juillet 1978 portant diverses mesures d'amélioration des relations entre l'administration et le public et diverses dispositions d'ordre administratif, social et fscal [Act No. 78–753 on Administrative Relations with the Public of 17 July, 1978]. The fonds of accessible documents are defned early on in Sec. 1.

11Code du patrimoine, Art. L213–3-I. On the system of derogations cf. Limon-Bonnet, M.-F. (2014). Le régime des dérogations. In S. Monnier, K. Fiorentino (Sous la dir.), *Le droit des archives publiques, entre permanence et mutations*. La Gazette des archives, 234(2), 29–45.

the interest in consulting the records does not cause serious harm to the interests the law intends to protect.12 This includes, among other things, the protection of the personality of those concerned in the archives. Summary statistics show that,13 on average, every year the French public archives receive between 3000 and 5000 requests for individual derogations, and the percentage of requests granted has oscillated around 90% in the last decade.

The second option is the approval of a "**general derogation**" ("dérogation générale"), which opens the archival material in question to all requestors or, in some cases, to entire categories of requestors or research purposes (scientifc and historical research, public statistics). Overall, however, very few such derogations have been granted in the history of the French archives, and the vast majority of the material dates from the period during or just after World War II. This fact was most recently criticised by Christine Nougaret, the then vice president of the Superior Council on Archives (Conseil Superieur des Archives), the advisory council of the Minister of Culture and Communication for the feld of archiving.14 But as early as 1996, an extensive report edited by Guy Braibant, commissioned by the then French Prime Minister Édouard Balladur, made one of the recommendations aimed at increasing the openness of archival holdings to extend the scope of the general derogation institute to the most recent documents, those that were still subject to the 30-year closure period in France at the time and which were not yet subject to general derogations.15

12Code du patrimoine, Art. L213–3-I.

13Observatoire des dérogations. Last updated 31 March 2020. https://francearchives.fr/ article/38082

14Nougaret, Ch. (2017). *Une stratégie nationale pour la collecte et l'accès aux archives publiques à l'ère numérique. Rapport à Madame Audrey Azoulay, Ministre de la Culture et de la Communication*. (2017, 24 March). https://francearchives.fr/fle/b0d6555950508 ab637adb10ece33d381644d6d37/2017\_03\_24\_RAPPORT\_DEFINITIF\_NOUGARET. compressed.pdf. Draft measure No. 23, p. 32.

15Braibant, G. (Ed.). (1996). *Les Archives en France: rapport au Premier ministre*. La Documentation française (Collection des rapports offciels). https://www.vie-publique.fr/ sites/default/fles/rapport/pdf/964093000.pdf. Recommendation No. 22, p. 125. The report itself, together with other supporting materials, successive versions, related correspondence, and so on, is part of the French Archives nationales archival collection, Premier ministre; Organismes rattachés directement; Mission de réfexion sur les archives en France (Mission Braibant) (1995–1996), id: 20000520/6–20,000,520/7, cotes 12 and 13.

To my knowledge, only 23 of these general derogations have been granted in total since 1979.16 I am only aware of four such cases of derogations granted after 2015. For the purpose of illustration, let us look at some of the approved general derogations.

In 2009, census archives were opened under this regime up to and including the 1974 census. However, this access was not unlimited, but the materials were made available only for the purposes of public statistics and scientifc or historical research, not for the purpose of new use of the data, especially for commercial purposes.17 Thus, the same exemptions that appear in the European General Data Protection Regulation (GDPR)18 in relation to allowing specifc regimes for the processing of personal data resonate here as well. If this general derogation were not approved, a period of 75 years would apply, that is, as of 2020 the 1936 census would be the "youngest" accessible (in the twentieth century, census in France took place in 1901, 1906, 1911, 1921, 1926, 1931, 1936, 1946, 1954, 1962, 1968, 1975, 1982, 1990, 1999). A specifc access was granted for the 1946, 1954, 1962, 1968, 1975 census—for these censuses, which are subject to access under general derogation, only consultation is allowed, only in the archives research room, and not remotely via the web.

In 2015, a full 70 years after the end of World War II (!), access was provided to the archives of extraordinary courts under the Vichy regime and the period of Provisional Government of the French Republic (1944–1946), archival fonds of the central administration of the Ministry of Justice related to cases of extraordinary courts under the Vichy regime and the period of Provisional Government of the French Republic, together with police investigation materials from 1939 to 1945, police investigations from 1945 to 1960 relating to matters from 1939 to 1945, prosecution and trial of war crimes in the French occupation zones in

16By 2017, the data was collected by Mallet, J. (2018). Les dérogations générales. 31 January 2018. https://siafdroit.hypotheses.org/764

17Arrêté du 4 décembre 2009 portant dérogation générale pour la consultation des listes nominatives du recensement général de la population. JORF n° 0288 du 12 décembre 2009, texte n° 48 [Decree of 4 December 2009 on general derogation concerned the census records].

18Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

Germany and Austria, and fnally the archives of the war and maritime courts from 1939 to 1945.19

The extremely long time it took to open material so vitally important for French history from the time of World War II and just after its end, is very surprising, all the more so because it took place in a country with a continuous democratic regime and strong liberal tendencies in the feld of archiving, which resonate, inter alia, in the aforementioned abolition of the general 30-year closure periods, that apply, even if their lengths may slightly differ, in a considerable part of the world. In this context, it is worth noticing the analogy with the current opening of Vatican archives as in March 2020, Pope Francis II opened access to archives from the time of the pontifcate of Pius XII (1939–1958) maintained in the Vatican Apostolic Archive.

In 2017, the opening of archival records from the Klaus Barbie trial, also known as the "Butcher of Lyon", attracted considerable attention among the French public.20 Klaus Barbie, a German member of the SS and SD, who, during World War II, operated in the occupied Netherlands and was later assigned to France, where he was stationed in Lyon as the head of the local Gestapo from 1942–1944; he became known for his extreme brutality, torturing women, children, and members of the resistance. After the war, he cooperated in Germany with the US and British secret services and benefted from their protection (his value consisted mainly in infltrating and spying on the Communist Party in Bavaria). After the War, however, France did not strive hard to have Barbie extradited, presumably due to concerns among some senior French offcials that Barbie's testimony about their activities, such as cooperating with the Gestapo during the war, might discredit them. As a result, Barbie was not extradited to France. He then lived in Bolivia and in 1966 became a paid associate of the West German secret service, the Bundesnachrichtendienst (BND); among other things, he was involved in the arms trade of the Bundesrepublik with Latin America, as German historian Peter Hammerschmidt proved a

19Arrêté du 24 décembre 2015 portant ouverture d'archives relatives à la Seconde Guerre mondiale. JORF n°0300 du 27 décembre 2015, texte n° 2 [Decree of 24 December 2015 on opening of archives relating to WWII].

20Arrêté du 30 juin 2017 portant ouverture des archives du procès de Klaus Barbie. JORF n°0156 du 5 juillet 2017, texte n° 22 [Decree of 30 June 2017 on opening of archives of Klaus Barbie trial]. Archival fonds from the Klaus Barbie trial in detail in Galland, B. (2018). Le procès de Klaus Barbie, entre archives, témoignage et éthique. *La Gazette des archives*, n° 249, 2018(1), 163–177.

couple years ago.21 In the 1970s, however, Nazi hunters tracked him down in Bolivia, and in 1983, Bolivia fnally extradited Barbie to France. The trial began in 1987, during which time Barbie's testimony revealed that quite a few respected citizens had collaborated with the Nazis. In the same year, he was given a life sentence. Klaus Barbie died in prison in 1991. The very disclosure of archives from France's frst-ever trial of crimes against humanity22 was greatly accelerated by the French public opinion.

Another notable case of approved general derogation concerned the archives relating to the case of Maurice Audin (1932–1957). Maurice Audin was a French mathematician at the University of Algiers, a member of the Algerian Communist Party and a participant in the struggle for Algerian independence from France in the Algerian War (1954–1962). In 1957, he was arrested by the French and later offcially declared missing. It was not until 2014 that France offcially acknowledged that he had died in prison, and it was not until 2018 that French President Emmanuel Macron offcially admitted that Audin had been tortured in prison and had either been executed or tortured to death.23 Audin was among those affected by the cruel inhuman conduct of French troops in Algeria, which, after all, eventually led to a reversal of French public opinion and the decision of the then French president, Charles de Gaulle, to act towards the recognition of Algerian independence. Audin's body was never found.24 It was as late as 2013 that access was provided to the frst part of the records related to the Maurice Audin case25 in the form of a general derogation; and it was not until 2019 that access to entire documentation was opened, following President Macron's declaration of 13 September 2018 on the death of Maurice Audin, in which he agreed to opening all archives

21Hammerschmidt, P. (2014). *Deckname Adler.  S. Fischer.

22Galland, B. (2018). Le procès de Klaus Barbie, entre archives, témoignage et éthique, p. 167.

23Déclaration du Président de la République sur la mort de Maurice Audin (2018, 13 September). https://www.elysee.fr/front/pdf/elysee-module-950-fr.pdf

24Maurice Audin case has most recently been summarised, also in the context of the specifc phenomenon of the so-called transitive justice by Thénault, S., Besse, M. (Eds.). (2019). *Réparer l'Injustice: l'Affaire Maurice Audin. Institut francophone pour la justice et la démocratie*.  JORF n°0046 du 23 février 2013, texte n° 25 [Decree of 1 February 2013 on general derogation for opening of public archives concerned the disappearance of Maurice Audin].

relating to persons who disappeared during the Algerian War, including the Audin case material.26

Most of the general derogations relate to the archives maintained in the French National Archives. However, they can also be utilised by the Ministries of Defence and Foreign Affairs for "their" archival records. Thus, not long ago in 2018, access was provided to materials preserved in the Archives of the Ministry of Defence of France relating to the Minerve submarine case, which went missing with 52 sailors on board in 1968.27 The disclosure of the then exactly 50-year-old archives (until then, the archives were only opened in 2007 for Christophe Agnus, the son of one of the drowned offcers based on an individual permission of the French president of that time, Nicolas Sarkozy28) was initiated by Hervé Fauve, the son of the submarine commander. The shipwreck was not found until July 2019. However, the open archives containing, among other things, documents from the investigation into the sinking of the submarine did not provide any further evidence to establish the cause of the shipwreck.

In both individual and general derogations, the possibility of reproducing materials, including the modalities of using the researcher's own reproduction devices, cannot be excluded in advance. In the case of individual derogations, the researcher's access request should also indicate whether they intend to reproduce the records, which is then commented on not only by the records creator, but also by the Service interministériel des Archives de France (SIAF), the central French governing body for archives under the Ministry of Culture and Communication.29 In case the researcher disagrees with the decision, the matter may ultimately be examined, on request, by the Committee on Access to Administrative Documents (Commission d'accès aux documents administratifs, CADA), whose task is to oversee the implementation of the rules on free access to

26Arrêté du 9 septembre 2019 portant ouverture des archives relatives à la disparition de Maurice Audin. JORF n°0210 du 10 septembre 2019, texte n° 26 [Decree of 9 September 2019 on opening of public archives concerned the disappearance of Maurice Audin].

27Arrêté du 4 juin 2018 instituant une dérogation générale pour la consultation d'archives publiques relatives à la disparition du sous-marin "Minerve" le 27 janvier 1968. JORF n°0137 du 16 juin 2018, texte n° 9 [Decree of 4 June 2018 on general derogation for opening of public archives concerned the disappearance of submarine "Minerve"].

28 Information provided by Guibert, N. (2019, 5 February). La marine va rechercher l'épave du sous-marin "Minerve". *Le Monde*.

29Circulaire DGP/SIAF.AACR/2010/010 du 29 juillet 2010. Dérogations aux règles de communicabilité des archives publiques règles générales et procédure.

offcial records and public archives, as well as the specifc area referred to in France as the "new use of public information" ("réutilisation des informations publiques") used in French legislation. Although the French terminology distinguishes between the terms "communication" and "consultation", even in the case of individual "consultation" of records in the CADA research room, the Code on the relationship between the public and the administration (Code des relations entre le public et les administrations) does not exclude the possibility of the researcher using their own reproduction device, such as a smartphone, tablet, camera, and so on.30

Specifc access to archives under individual and general derogations for the whole public or certain categories of researchers is one way to implement efforts to protect personality, including private life, while providing access to archival records to the extent possible. Although some of the presented tools, applied for example in French archives, may seem to be an appropriate solution to the whole problem, the situation is complicated and complex and the seriousness of the risks of personality protection in archives is not negligible. For example, the premature disclosure of census records for individual consultation inside the archives research rooms raises signifcant questions. In this case, France implemented the model of general derogations and in 2009 provided premature access to the census data up to and including 1974. Unlike many other countries, France does not anonymise these materials. I shall provide a detailed analysis in comparative international perspective of access to census archives in Chap. 7.

#### 3.2 United Kingdom: Public Interest Test, Proportionality of Interests, Common Law, and Confidentiality—Decentralist Approach

Is it justifed, and if so in what sense, to describe the British model as a decentralist approach to opening access to archival records and protecting personal data and privacy therein? What are its specifcs?

The year 2000 marked a turning point in the policy of access to public records, archives, and information in general, as the Freedom of

30Modalités de communication. Commission d'accès aux documents administratifs. Published 10 July 2018. https://www.cada.fr/administration/modalites-de-communication. The conclusions on this issue presented in Mallet, J. (2018). Les dérogations générales are therefore not entirely accurate.

Information Act (FOIA) was passed.31 The Act has taken over the competence to regulate access to information and, with it, to public records. Unlike the French model, the British model does not create a system of structured, precisely defned periods for access to particular categories of information and records. A specifc feature of the British model is the introduction of a multi-layered and multi-stage public interest test, which takes place at several points within the records management and is performed by different entities. There are several different forms of testing.

#### *3.2.1 Public Interest Test: Freedom of Information Exemptions*

At the frst level, the testing is based on the general right of the public to virtually immediate access to information. However, the FOIA provides for a set of certain categories of information constituting exemptions from this requirement of immediate access. These exemptions are of a dual nature. First, there are the so-called absolute exemptions.32 In their case, the public authority is not obliged to disclose the information and does not have to carry out any further assessment. These exemptions include, for example, information accessible by other means, court records, and information held in relation to court proceedings, information provided in confdence, and certain other information including personal information for the lifetime of the persons concerned. The second group consists of "qualifed exemptions", which include, for example, information intended for future publication, health and safety information, environmental information, personal information relating to a third party, business interests, and certain additional information.

For these qualifed exemptions, an elaborate public interest test process, implemented by public authorities including archives, has crystallised over time in the United Kingdom and is worthy of closer attention.33 In addition, the British system has divided all exemptions into two basic categories. The frst consists of exemptions based on the type of information concerned ("class-based exemptions"). In this case, the relevant public authority does not have to provide further arguments as for why it will not

31Freedom of Information Act of 30 November 2000. Ch. 36.

32Freedom of Information Act 2000, Sec. 2 (3).

33For a comprehensive overview of public interest test, cf. material prepared by the Information Commissioner's Offce (ICO). The Public Interest Test. https://ico.org.uk/ for-organisations/guidance-index/freedom-of-information-and-environmental-informationregulations/the-public-interest-test/

disclose the information, what interests would be harmed by the information disclosure, and therefore does not have to carry out a public interest test. Almost all absolute exemptions are "class-based". The second category are exemptions based on harming certain interests ("prejudice-based exemptions"), in which case the public authority must demonstrate that and how disclosure of the requested information or record harms the interests specifed in the relevant exemption.34

The public interest test itself consists in a public authority weighing the harm that disclosure would cause to the legitimate interests against the public interest served by disclosure of the information, always considering current circumstances and context.

Public interest test is carried out independently by each relevant public authority, which is an important element of the British decentralised model. The specifcity of this model is then refected in the existence of a considerable number of methodologies and codes of practice. The need for them is also given by the fact that public interest testing is a process that the British Anglo-American common law shapes not only by statutory provisions but in a signifcant way also by the case law created by the judicial system through precedents. One of the signifcant precedents in the area of public interest testing for access to information, records, and archives and for assessing prejudice-based exemptions is the 2006 case of Christopher Martin Hogan and Oxford City Council v. the Information Commissioner, which is also regarded as an important reference by the UK Information Commissioner's Offce (ICO), the United Kingdom's independent authority for information rights, access to information and privacy.35

When testing the public interest, the public authority must take into account a wide range of public interests. On the side of the public interest in information accessibility, there are, among other things, moments such as the consideration of transparency. "There is a general public interest in

34On FOIA exemptions cf. The National Archives material Freedom of Information Exemptions (2016, reviewed 2019), which also provides an overview table specifying individual exemptions and their categories, including specifc periods. https://www. nationalarchives.gov.uk/documents/information-management/freedom-of-informationexemptions.pdf

35Christopher Martin Hogan and Oxford City Council v. the Information Commissioner, Appeal Numbers: EA/2005/0026, EA/2005/0030, 17 October 2006. Other important case laws in this area are summarised in ICO, The Public Interest Test.

promoting transparency, accountability, public understanding and involvement in the democratic process."36 Another reason for making information accessible is the public interest in a topic that has a broad social impact, such as the implementation of public policies. Other motives may also be the possibility of controllability, which is conditioned by the availability of all relevant data, the promotion of good decision-making by public bodies and the like. If, for example, there are suspicions of maladministration, breaches of the law, and so on, the public interest in open information becomes very important compared to the countervailing public interest in, for example, protecting the personal data of third parties, business interests, and so on.

In the case of "prejudice-based exemptions", which include areas such as foreign relations, defence, economy, public affairs, business interests and the like, the aforementioned case of Christopher Martin Hogan and Oxford City Council v. the Information Commissioner plays an important role in British law. The ICO, referring to the court judgement in this case, has outlined the procedure that should be applied in the case of a prejudice test.37 First, the public interests at stake in the case in question must be identifed. In the second step, the substance of their hypothetical harm should be identifed, the basic issue here being "to be able to show that some causal relationship exists between the potential disclosure and the prejudice and that the prejudice is … 'real, actual or of substance'".38 The causal link should then have a logical basis and should not be a mere hypothetical assumption. Finally, the likelihood that such harm would occur should be assessed. In doing so, the circumstances in which such harm could occur, the degree of certainty with which this harm could be caused, and the frequency of the potential occurrence should be considered. British common law does contain precedents that have grappled with how to precisely defne the concept of likelihood of harm, how to measure it,

36 ICO, The Public Interest Test.

37 Information Commissioner's Offce (ICO). (2013). *The Prejudice Test. Freedom of Information Act*. https://ico.org.uk/media/for-organisations/documents/1214/the\_ prejudice\_test.pdf, p. 5–6.

38Christopher Martin Hogan and Oxford City Council in the Information Commissioner, Sec. 30, p. 8.

differentiate it, and determine its role in testing for potential harm.39 The United Kingdom's ICO drew on a judgement in the court case that differentiated, in principle, between two basic measures of probability. The stronger measure occurs when it is more likely that harm would occur if the information is disclosed than that it would not (the "would" option).40 The lower probability applies when, even though there is a serious risk of harm, it is not possible to say whether the likelihood of harm in the event of disclosure is greater or lower than 50% (the "would be likely" option). One of these two options should be explicitly mentioned and justifed by the public authority deciding not to disclose the information.

At the very heart of the public interest test for qualifed exemptions, or prejudice-based exemptions, is the process of weighing the various arguments and public interests by public authorities, detecting the weight of each, and disclosing the information if the public interest in disclosure prevails.41 The weighing takes into account criteria such as the likelihood of harm to the relevant public interest and the seriousness of the potential harm. The ICO mentions one court case from 2010 in which the authority itself was involved.42 It was a dispute over the disclosure of data on animal experiments carried out at Oxford University. The University did not want to disclose certain data on these experiments on the grounds that it could endanger the safety of some of their staff by protectionist extremists in the form of bombings or arson. The court acknowledged this, stating that the risk to university employees outweighed the harm to the public interest in disclosure.

This weighing of the various public interests can be expressed in other words as a proportionality test. A similar proportionality test has crystallised in British law in other areas of data protection, including personal data protection and a specifc principle with which British law operates, namely the duty of confdentiality. Nevertheless, these tests are not

39For example, John Connor Press Associates v. Information Commissioner EA/2005/0005, 25 January 2006; Mr. Justice Munby in R (on the application of Lord) v. Secretary of State for the Home Offce [2003] EWHC 2073, (Admin), 1 September 2003; John Connor Press Associates v. Information Commissioner EA/2005/0005, 25 January 2006); Christopher Martin Hogan and Oxford City Council v. the Information Commissioner. As cited in ICO. (2013). *The Prejudice Test. Freedom of Information Act*.

40 ICO. (2013). *The Prejudice Test. Freedom of Information Act*, Sec. 27–39, pp. 8–11.

41 Ibid., Sec. 53–69, pp. 22–28.

42People for the Ethical Treatment of Animals Europe (PETA) v. Information Commissioner and University of Oxford EA/2009/0076, April 13, 2010.

identical, and in some respects their emphasis goes in the opposite direction, as will be seen shortly.

#### *3.2.2 Breach of Confdentiality: Public Interest Test as Proportionality Test*

When deciding on access to records, archives, and data protection, public institutions, including archives, have to take other perspectives into account and perform the public interest test at other levels as well. The "duty of confdentiality" is an important element. Here, too, the specifcity of British law, namely the area of British common law, comes into play in a signifcant way. The principle of confdentiality is, however, also refected at the level of the law, since one of the notable exemptions to the right of access to information is situations where the opening of information provided to a public authority by an individual, but also by another public authority, would mean a failure to respect the confdentiality envisaged and assumed by the individual or authority when communicating with the addressee.43 At the same time, it is an exemption which is not limited in time but unlimited in duration. For this reason, archives must also take into account the duty of confdentiality and test public interest in situations if a possible breach of confdentiality is involved.

This, of course, does not mean that every piece of information exchanged between citizens and public authorities is confdential. This is where the British common law comes into play, in which the concept of confdentiality and breach of confdentiality has crystallised. In principle, the information must have the quality of confdentiality. This means that it must not be trivial, it must not be accessible in any other way, it must be worthy of protection in the sense that someone has a genuine interest in keeping the content of the information confdential.44 At the same time, the disclosure of such information would be actionable. Although confdentiality of information is an absolute exemption under FOIA (see above), even in its case, a public institution should conduct a public interest test and consider whether the public interest in breaching confdentiality outweighs the public interest in a particular case. If a public institution

43Freedom of Information Act 2000, Sec. 41.

44Cf. Information Commissioner's Offce (ICO). *Information Provided in Confdence (Section 41)*. *Freedom of Information Act*. https://ico.org.uk/media/for-organisations/ documents/1432163/information-provided-in-confdence-section-41.pdf

can rely on "public interest defence" by opening certain information otherwise provided in confdence, British common law provides for non-actionability.45

This is a very complicated area of law that is constantly evolving in view of the continuous changes in the common law, and has recently evolved quite dynamically. The ICO summarises the development of important judicial precedents in this area, particularly after 2000, and recent developments in the UK courts' perception of confdentiality.46 As recently as the 1990s, British courts generally recognised situations in which the public interest in opening information outweighed the duty of confdentiality; these were exceptional cases when access to the information would produce evidence of breach of law, misconduct, corruption, and the like. At the turn of the millennium, the existence of similar serious cases was challenged by the courts. Soon after the new Human Rights Act was passed,47 which implemented the European Convention on Human Rights into British law, further signifcant developments occurred. Newly, the courts have begun to take more substantial account of the right to protection of private and family life, but on the other hand also the competing right to freedom of expression, access to information and its dissemination, that is, the rights defned in the European Convention.48 This eventually led to the public interest test becoming a proportionality test. As one of the court statements succinctly put it: "Before the Human Rights Act came into force the circumstances in which the public interest and publication overrode a duty of confdence were very limited. The issue is whether exceptional circumstances justifed disregarding the confdentiality that would otherwise prevail. Today the test is different. It is whether a fetter of the right of freedom of expression is, in the particular circumstances, 'necessary in a democratic society'. It is a test of proportionality."49

Today, therefore, two public interests are weighed against each other: On the one hand, the public interest in providing access to information, and on the other, the public interest in maintaining its confdentiality.

45 ICO, Information Provided in Confdence, Sec. 41 (71–73), p. 21.

46 ICO, Information Provided in Confdence, Sec. 41 (74–87), pp. 21–23.

48Rights are defned in Articles 8 and 10 of the European Convention on Human Rights as amended by Protocols Nos. 11 and 14 supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16. (1950). https://www.echr.coe.int/documents/convention\_eng.pdf

49Court of Appeal, HRH Prince of Wales v. Associated Newspapers Limited (2008), 57 (67). As cited in ICO, Information Provided in Confdence, Sec. 41 (79), p. 22.

47Human Rights Act 1998 of 9 November 1998. Ch. 42.

However, as the ICO points out, the public interest test in this case is different from the public interest test for qualifed FOIA exemptions as discussed above. In the system of qualifed exemptions, the public interest works in principle in favour of opening information, the closure of which that is, obtaining a FOIA exemption—will only occur if the public interest in its non-disclosure prevails. In the case of the duty of confdentiality, the opposite is the case: The public interest in maintaining confdentiality is presumed to prevail, except in situations in which it would appear that opening access to the information would carry more weight in the relevant circumstances.50

The public interest grounds for breaching the duty of confdentiality are multiple and it is impossible to provide an exhaustive list. Nevertheless, let us take a look at just a few of them. One of them is the public interest that—as the ICO defnes it—"public authorities remain transparent, accountable and open to scrutiny, for example where disclosure would further public understanding of, and participation in the debate of issues of the day; enable individuals to understand decisions made by public authorities affecting their lives and, in some cases, assist individuals in challenging those decisions; or facilitate accountability and transparency in the spending of public money."51 Another situation in which confdentiality can be breached is when a breach of law, abuse of authority or corruption is revealed. In such situations it is not necessary to be certain, but according to the methodology of the British authority on access to information and its case law, a serious suspicion based on a reliable source is suffcient.52 Another reason for breaching confdentiality is, for example, the public interest in protecting security.

This, naturally, does not mean that the duty of confdentiality should be disregarded. On the contrary, too free handling could lead to a breach of trust of individuals or legal entities entrusting information to public authorities. It is therefore always necessary to look at the wider context and consider, as the ICO highlights, "how the relationship of trust operates to serve the public interest".53

50 ICO, Information Provided in Confdence, Sec. 41 (81), p. 22.

51 ICO, Information Provided in Confdence, Sec. 41 (83), p. 22.

52 ICO with reference to the judgement of the Tribunal Decision in Moss v. the ICO and the Home Offce (EA/2011/0081, 28 February 2011). See ICO, Information Provided in Confdence, Sec. 41 (86), p. 23.

53 ICO, Information Provided in Confdence, Sec. 41 (91), p. 24.

It should also be added that in the United Kingdom there exist a number of categories of personal data, or records containing such data, whose confdentiality is explicitly declared and therefore are subject to special protection under certain specifc regulations, which the archives need to take into account when considering whether or not to disclose the information requested. Indeed, there are a number of other specifc regulations in the United Kingdom setting out specifc access systems and restrictions for certain special categories of data, far from being limited to personal data. In 2005, the then Department for Constitutional Affairs found a total of 210 such regulations preventing access to information.54

Staying in the area of personal data, a typical example is data relating to sexual offences, in whose case a specifc law directly stipulates that no data that could lead to the victim's identifcation may be disclosed during the victim's lifetime.55 The same is the case for data on abortions,56sexually transmitted diseases,57 medical records in general, and some other similar circumstances.

But even in these cases, British law leaves room for public interest considerations. Thus, even in the case of medical records—although the common law considers the information in them to be confdential—the same common law has established the practice that in exceptional cases the public interest in opening such information prevails and the duty of confdentiality can therefore be breached. This is also consistent with the UK Department of Health Code of Practice on Confdentiality in Medical Records, which defnes the public interest in this area to mean that under certain specifc circumstances, the public interest in providing access to data may outweigh the individual interest in maintaining confdentiality.58 In doing so, the data controller must assess the potential harm that may

54Review of Statutory Prohibitions on Disclosure, Department for Constitutional Affairs 2005. https://webarchive.nationalarchives.gov.uk/ukgwa/+/http://www.dca.gov.uk/ StatutoryBarsReport2005.pdf, p. 1. While this inventory is no longer entirely up-to-date, it does provide some insight into the breadth and complexity of the law entering the feld of personality protection in the United Kingdom.

55 Sexual Offences (Amendment) Act 1992, Sec. 1 (1).

56Abortion Regulations 1991, Regulation 5: Restriction on disclosure of information.

57National Health Service (Venereal Diseases) Regulations 1974, Regulation 2: Confdentiality of Information.

58Department of Health. (November 2003). *Confdentiality. NHS Code of Practice*. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment\_data/fle/200146/Confdentiality\_-\_NHS\_Code\_of\_Practice.pdf, p. 6, Sec. 30, p. 13, Sec. 38, p. 15.

occur to both parties and interests (the interest of the society vs. the interest of the individual) by opening the data. At the same time, it clearly points out that in situations when there is no explicit consent of the person concerned to the disclosure of information relating to them and when there are no legal situations in which the data are to be disclosed for various offcial purposes, there must be a genuine "overriding public interest" in such disclosure to third parties.59 Such a public interest was then found by the common law in cases as preventing, detecting, or enabling the conviction of a serious crime, preventing harm or damage to another person. In any case, a detailed record shall always be made of the entire process of such disclosure, with detailed justifcation. In addition, where possible, such disclosure should always be consulted with the individual concerned.

The British legal system also covers specifc situations, such as breaches of confdentiality in cases of whistleblowing by employees, in similar and precisely defned cases (suspected breach of the law, risk to health or safety of persons, risk of damage to the environment and some others).60

Naturally, situations such as the disclosure of personal data from medical records for scientifc research are also refected. The British Department of Health's Code of Practice gives an example of disclosure in the following cases.61 The key here lies in the application of the principle of proportionality. For example, in a situation that would involve a disproportionate effort to obtain consent from the patient and in which, at the same time, the likelihood of harm to the patient's interests by disclosing their medical data for research purposes would be negligible, the materials may be opened for research purposes without the patient's consent.

The British Department of Health later issued further guidance on how to apply the principle of disclosure of medical records in situations in which exists an overriding public interest in such disclosure.62 It describes

59Department of Health. (November 2003). *Confdentiality. NHS Code of Practice*, Sec. 11, p. 7, Sec. 14 (b), p. 23, Sec. 28, p. 34, Sec. 30–34, pp. 34–35.

60Public Interest Disclosure Act 1998.

61Department of Health. (November 2003). *Confdentiality. NHS Code of Practice*, Sec. 34, p. 35.

62Department of Health. (November 2010). *Confdentiality: NHS Code of Practice. Supplementary Guidance: Public Interest Disclosures*. https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment\_data/fle/216476/dh\_122031.pdf. Cf. also Health and Social Care Information Centre. (2014). *Code of Practice on Confdential Information*. https://digital.nhs.uk/binaries/content/assets/legacy/pdf/8/9/copconfdentialinformation.pdf

the entire procedural process, gives details on what a public interest assessment should look like, what information needs to be gathered, and provides specifc examples. The confdentiality of personal data can be breached, for example, when a patient refuses to inform their sexual partner that they suffer from a sexually transmitted disease. It characterises how to proceed when assessing what constitutes a serious crime, that constitutes one of the grounds on which confdentiality can be breached. Finally, it provides some specifc scenarios that can occur and describes how to deal with them.

#### *3.2.3 "Historical Records" and Archives: Second-Level Testing*

At an imaginary second level, ensuring data protection or access to information and records, including the proportionality test of public interests, is carried out at the level of so-called historical records. If such is the case, the archival system common in most countries usually comes into play, namely the system of closure periods. In the United Kingdom, a public record becomes "historical" 20 years after its creation, regardless—and that is essential—whether it is in live administration or has already been transferred to the archives for permanent preservation. The vast majority of these historical records were deprived of the possibility of becoming exemptions to the rule of open information, and the law has thus made public records with the status of historical records accessible to the public.63 In its original version, the law set a period after which public records become "historical"; the original period was 30 years, which was subsequently reduced in 2010 to the currently still valid 20 years.64 The same period also applies to the obligation to transfer records of permanent historical value to the archives for permanent preservation.65 A refection on the seriousness of the issue of closure periods and their (disproportionate) duration is also evident in the documentation created by the activities of the Advisory Council on National Records and Archives, be it meeting minutes, memoranda, correspondence, and other documentation. The

63Freedom of Information Act 2000. Ch. 36, Sec. 63–64.

64Constitutional Reform and Governance Act of 2010. Ch. 25, amending the periods given in Sec. 62 (1) of the UK Freedom of Information Act of 2000. Ch. 36, Sec. 62 (1) defning the so-called historical records. In doing so, it is necessary to take into account the following Sec. 63, which imposes a general obligation to provide information from "historical records".

65Public Records Act 1958. Ch. 51, Sec. 3 (4).

roles of the Advisory Council on National Records and Archives will be discussed below.66

The status of "historical records" thus fulfls the function of one of the key guarantees of the timely opening of public records and society's information; at the same time data protection also applies at this stage and at the stage of management of historical records. How do both considerations play out?

They appear as possible exemptions, as we have already discussed above. Both public authorities and citizens can request them. We will now stay within the sphere of records and archives in the care of the British National Archives. A key role is played by the "Advisory Council on National Records and Archives", an independent advisory body on records maintained by the British National Archives.67 Based on the Council's opinions, the fnal decision regarding such requests is then made by the Secretary of State for Digital, Culture, Media and Sport.

The Advisory Council on National Records and Archives assesses, in principle, three possible basic situations of exemptions from access to public historical records and, at the same time, carries out the second wave of triple testing and weighing of the public interest. The following three situations commonly occur:

a. Public entities (in this case within the competence of the National Archives) may request an extension of the 20-year period after which they should transfer their records to the archive (applications for retention).68

66Cf., for example, The National Archives. Series PRO 42. (1959–1986). Advisory Council on Public Records, specifcally for example PRO 42/50: Memoranda. See, for example, the memorandum from 2 March 1970 "Accelerated opening of second world war records". Cf., inter alia: PRO 42/51 – Memoranda; PRO 42/75: Memoranda; PRO 42/23: Access to records and introduction of 30-year rule.

67On Advisory Council on National Records and Archives, established already in 1958 (according to the Public Records Act 1958. Ch. 51, Sec. 1 (2)), see its website https://www. nationalarchives.gov.uk/about/our-role/advisory-council/. The annual reports published in the recent years are also available via this link. The National Archives in the United Kingdom holds a considerable amount of records created by or relating to the Advisory Council. Cf. not only Series PRO 42. (1959–1986). Advisory Council on Public Records, some interesting information can also be found in the Records of the Cabinet Offce (CAB) series, for example, CAB 184/401: Disclosure of offcial information.

68For an example request for extension of retention of public records, see, for example, The National Archives. Series PRO 70. (1982–2003). Public Record Offce: Lord Chancellor's Instruments: Retention by Department under Public Records Act 1958. Here for example: PRO 70/58: Retention of Public Records; PRO 70/66: Retention of Public Records.

b. Second, the same public entities may request the transfer of historical records to the archive in a closed form in a state of non-disclosure to the public (applications for closure), that is, request an extension of the period for making historical records available to the public.69 This point is actually the second stage of the assessment of "qualifed exemptions" from general access to information, as introduced in the British law by the Freedom of Information Act (FOIA) and discussed above. Or rather, it is an assessment of the legitimacy of the exemptions by a second independent authority. In the frst phase, it is the record creator who requests the application of a qualifed exemption and assesses its legitimacy. The second phase occurs when the creator transfers "historical records" (usually 20 years after their creation) to the archive and requests a qualifed exemption even after their transfer. At this point, the scene is entered by the Advisory Council on National Records and Archives whose competence it is to assess such requests. At least at a central level, the British National Archives seeks to achieve the earliest possible disclosure of archival records to researchers by persuading creators to apply exemptions only to the minimum extent necessary and for the shortest possible period of time, with the proviso that they should (but need not) set a specifc point at which the records can be opened to the public, or a point at which further review can take place.70 In cases when it is not possible to determine the exact moment of providing access to the archives at the time of their transfer, the National Archives and the Advisory Council seek to apply the "rolling 10 years" rule, that is, the reasons for restricting access to the archives should be re-examined every 10 years.71 A new review also occurs when a research request is made for access to restricted material.

69Handling the requests for extension of closure periods represents a signifcant agenda for the Advisory Council, as demonstrated by the archival collection generated by its activities. Cf. The National Archives. Series PRO 42. (1959–1986). Advisory Council on Public Records. On the extension of closure periods see, for example, PRO 42/45: Minutes of meetings (1969–1976); PRO 42/50: Memoranda: AC [69]1 - AC [72] 9; PRO 42/64: Memoranda: AC [77] 1 - AC [81] 13; PRO 42/57: Correspondence and papers: Access to public records; PRO 42/75: Memoranda: AC [84] 1 - AC [83] 21; PRO 42/23: Access to records and introduction of 30-year rule; PRO 42/77: Access to public records.

70Principles for Determining the Access Status of Records on Transfer. (2019). The National Archives. https://www.nationalarchives.gov.uk/documents/information-management/ principles-for-determining-the-access-status-of-records-on-transfer.pdf, p. 4.

71The National Archives. (2019). *Closure Periods*. https://www.nationalarchives.gov.uk/ documents/information-management/closure-periods.pdf, p. 2.

c. Natural persons: researchers may request access to historical records subject to exemptions and still restricted to the public.72

In all three of these cases, the Advisory Council weighs the public interest for and against granting an exemption, either in the form of an extension of the period for transferring records to the archives under (a), or in the form of an exemption from access to records under (b), or an exemption from opening otherwise restricted records (c).

But what does this general setting look like in some specifc situations and applications? For example, most requests under (c) usually seek access to investigation or court fles of criminal cases, most often historical murder cases.73 In such cases, the Advisory Council commonly weighs the public interest in disclosure of the material against the potential harm to the victims or their relatives. For unsolved crimes, the risks to the successful completion of criminal proceedings in the future are also taken into account. A large part of FOIA requests under (c) seek disclosure of information that, if opened, could harm the safety or physical or mental health of an individual.74 There is also interest in information whose disclosure could harm international relations or ongoing criminal proceedings. In terms of the number of requests, for example, in FY 2016–2017, the Advisory Council handled 400 FOIA disclosure requests under (c), almost half as many as the year before. When granting or refusing access, the Advisory Council usually requests an up-to-date opinion, including a specifc justifcation by the record creator, and, if necessary, the opinion of the relevant department of the National Archives. In a large number of cases, the Advisory Council accepts the arguments put forward by the record creator.

In the case of (a), the reason for a large part of the authorities' requests for an extension of the period for transfer their records to the archives, is

72Documentation of the Advisory Council's decision-making regarding these requests is preserved in the archival records of the Advisory Council. Cf., for example, The National Archives. PRO 42. (1959–1986). Advisory Council on Public Records. PRO 42/21: Advisory Council Series – Memoranda.

73Advisory Council on National Records and Archives. *16th Annual Report 2018–19*, p. 8. https://www.nationalarchives.gov.uk/documents/advisory-council-annual-report-2018-19.pdf

74Cf. Advisory Council on National Records and Archives. *14th Annual Report 2016–17*. https://www.nationalarchives.gov.uk/documents/advisory-council-annual-report-2016-17.pdf

the protection of security. A smaller percentage indicates protection of business secrets or ongoing public investigations as reasons.

For requests under (b), this is, as already mentioned, the second stage of the public interest test in the case of requests to disclose historical records even after they have been transferred to the archives. It is worth mentioning one particular fgure. In the FY 2018–2019, the Advisory Council accepted a total of 86.5% of the requests from creators without further examination, that is, it was satisfed with the vast majority of the justifcations provided by the creators, and this trend has also been evident in recent years.75 In situations when requests were further examined, the Advisory Council usually only requested a more detailed justifcation and did not request a change in its own conclusion on the (in)accessibility of the material. Overall, the Advisory Council notes relative satisfaction with the justifcation of "qualifed FOIA exemptions" by record creators, although it does identify some issues and sees improving the quality of justifcations provided as one of its goals. At the central level, the National Archives stresses that this system must not be abused or overused by the record creators; the requests must be specifc. For example, it should not occur that the record creator requests that broad subject groups of records be withheld simply because only a small part of the particular record group requires longer protection.76

Some statistical numbers are also interesting. For example, in FY 2018–2019—but the fgures have been relatively similar in recent years the Advisory Council received 5843 requests for the transfer of historical records to the archives in closed form, of which nearly 400 were questioned and further information was requested by the Advisory Council, resulting in only 13 requests being withdrawn by the relevant authority. In the same year, there were 970 requests for extensions to the 20-year period for transfer of records, of which only 4 were withdrawn following the Council's conclusions.77

More than a few of the above-mentioned forms of public interest testing in the case of an assessment by the Advisory Council on National Records and Archives as to whether or not to disclose records, are situations when the records in question also contain personal data.

75Advisory Council on National Records and Archives. *16th Annual Report 2018–19*, p. 6.

76Principles for Determining the Access Status of Records on Transfer, pp. 4–5.

77Advisory Council on National Records and Archives. *16th Annual Report 2018–19*, pp. 16–17.

Let us conclude by looking at some of the issues that fall squarely within the area of disclosure and protection of personal data, not only in British archives but in public administration in general.

#### *3.2.4 Protection and Disclosure of Personal Data in UK Archives and Public Administration*

For the protection of personal data in records and archives and closure periods, the protection generally applies during the lifetime of the person concerned (closure period of lifetime). British archival science after the turn of the millennium concluded—in view of the usually very diffcult task of ascertaining whether or not the person concerned in the archives was still alive—that it would rely on a certain exhaustive number of years corresponding to the average life expectancy, and decided on a period of 100 years.78 Frequently in cases when the age of the person is unknown, the default assumption has been that the person concerned was 16 years old at the time of the record creation—if an adult is concerned. Under certain circumstances, personal data may be disclosed earlier. One situation in which this may be the case is when it is made available for the purposes of science and historical and statistical research. However, a number of rules, as primarily defned by the UK Data Protection Act, must be followed.79 In general, the right to privacy must not be violated and the principle that disclosure is fair, lawful, and transparent must be respected. In case personal data are disclosed, all safeguards must be complied with and, in principle, such disclosure must not cause substantial damage or distress to the data subject. Although the British Data Protection Act does not explicitly defne the term "substantial damage or distress", methodological materials or British common law do characterise

78The National Archives, the Society of Archivists, the Records Management Society, and the National Association for Information Management. (2007). *Code of Practice for Archivists and Records Managers under Section 51(4) of the Data Protection Act 1998*. https://cdn. nationalarchives.gov.uk/documents/information-management/dp-code-of-practice.pdf, Sec. 4.1.5, p. 28.

79Data Protection Act 2018. On the archiving of personal data and their protection in archives, cf. methodological material document by the British National Archives. *Guide to Archiving Personal Data*. (August 2018). https://www.nationalarchives.gov.uk/documents/ information-management/guide-to-archiving-personal-data.pdf. As a side note, it needs to be mentioned that the procedures for access to information and records in Scotland differ slightly under the Scottish Freedom of Information (Scotland) Act 2002.

it in some way. They see substantial damage mainly in terms of fnancial loss or physical harm, and they understand substantial distress at the mental level, for example, when emotional or mental pain, signifcant distress or resentment is caused to the subject, or when a legitimate impression is given that an immoral act has been committed.80 Passages from the British Freedom of Information Act can also be used; these defne one of the exemptions to the right of access to information as data that would jeopardise a person's physical or mental health or safety.81

The protection of personality and personal data in records and archives is included within the scope of the duty of confdentiality and the public interest test, as discussed in detail above. However, this obligation represents only one of a number of other circumstances, conditions, that is, a part of the context in which the basic mechanism for testing the proportionality of the public interest in disclosure or non-disclosure takes place. The British Data Protection Act frames the whole process by the obligation that personal data must be processed lawfully and in a fair, proportionate way.82 But what does it mean?

It is again the British decentralist approach that leaves such an assessment to individual public authorities, in one case to the archives. Archives have to consider a number of phenomena and related circumstances when deciding whether to disclose records containing personal data.83 They must take into account the nature of the information that is to be disclosed, that is, assess its sensitivity with regard to the potential risk of harm to the public interest of the person concerned. The age of the information and its context are assessed, bearing in mind that the sensitivity of the information fades with its "age", which the overall assessment should also refect. The person whose data is concerned must not be forgotten. A different approach is applied in the case of working documents of political and public fgures, on the one hand, and personal matters and records of a purely private nature, on the other. Another important factor is, whether

80 "[S]ubstantial damage would be fnancial loss or physical harm; and substantial distress would be a level of upset, or emotional or mental pain, that goes beyond annoyance or irritation, strong dislike, or a feeling that the processing is morally abhorrent." The National Archives. (August 2018). *Guide to Archiving Personal Data*, pp. 15–16. See also p. 31–34.

81Freedom of Information Act 2000, Sec. 38 (2).

82Data Protection Act 2018, Sec. 2 (1).

83A certain summary can be found in The National Archives. (August 2018). *Guide to Archiving Personal Data*, Sec. 77–84, pp. 32–35.

the information has already been made available to the public, as such data should typically be available to the public.

Another circumstance that is usually placed on the scales of the proportionality of interests test is the manner in which the information is disclosed. A stricter regime and much more careful research must be carried out in cases when the data are to be disclosed to the general public, for example, on the web, and are not intended only for individual access, for example, in the archive research room. Ease of access to information thus stands out as one of the factors.84 The argumentation on this point by the British National Archives is also remarkable. The difference is largely determined by whether the general disclosure, for example on the web, allows the use of fulltext search tools and it is thus possible, for example, to search archives, records, or information by names of persons or other criteria. One signifcant threat may also be mentioned, that of the increasingly signifcant risks associated with the use of automated remote methods of reconnaissance and mining of (personal) data made available in the online environment.

Similar forms of retrieval and mining of (personal) data, on the other hand, would not be possible in the context of individual access to records in, for example, the archive research room, assuming the absence of, for example, indexes or other search aids, especially those published in fulltext online. In the analysis of the British National Archives in the light of the Data Protection Act, the possibility of a mere individual consultation would meet the requirement of "fair and proportionate" access to data subjects, whereas online publication with the new option of remote searching of personal data would not. The reason for why access would no longer be fair and proportionate in this case is that by using name search tools in online access, the researcher may not be suffciently aware of the archival context or age of the information found.85

On a side note, a similar moment occurred in a recent case in the Czech Republic; in 2019, legal columnist Tomáš Pecina was fned CZK 50,000 by the Offce for Personal Data Protection for publishing a database of court hearings containing information about the date of the hearing, the

84The National Archives. (August 2018). *Guide to Archiving Personal Data*, Sec. 79–81, p. 34.

85The National Archives. (August 2018). *Guide to Archiving Personal Data*, Sec. 79, p. 34.

location, the name of the judge, and the names of the participants.86 He obtained this data from publicly available content published in a database operated by the Ministry of Justice, which, however, includes data on ongoing or future hearings. He also published non-pseudonymised judgements of the Supreme Administrative Court, which also publishes them, but in full non-pseudonymised form only for 14 days, whereas in Pecina's database their full wording was available permanently. Pecina's database could also be searched by the names of the parties or judges, while the database of the Ministry of Justice only allowed searches by case fle numbers.

When considering access to archival material—as the British National Archives points out—particular attention needs to be paid to photographs, drawings, and the like. Even photographs that are not linked to specifc names may carry personal data, for example in that they show the persons concerned in certain situations (arrest, medical treatment, etc.). Similarly, personal data can be found in materials such as maps, plans, but also in digital records where one would not expect to fnd them, such as geographic databases. However, when assessing whether or not to disclose records, the record creators and the archives should also assess the data credibility, its accuracy, and completeness.87 The implementation of the European Convention on Human Rights into the British legal system through the Human Rights Act 1998 has also had an impact on British law, and it is gradually refected in the common law.

#### *3.2.5 Post-mortem Personality Protection in the United Kingdom*

Finally, let us briefy mention the phenomenon of post-mortem personality protection in the United Kingdom. Unlike, for example, Germany—as

86Príkaz Úr ̌ adu na ochranu osobních údaju ̌ ̊ [The Offce for Personal Data Protection Order], ref. no. UOOU-05226/19–3 of 5 February 2020. The case is described in Pánek, J. (2020, 7 February). Justicní aktivista dostal pokutu 50 tisíc za databázi soudních jednání ̌ [Judicial activist fned 50,000 for court hearings database]. https://www.idnes.cz/zpravy/ domaci/tomas-pecina-databaze-soudnich-jednani-archivace-data-jmena-urad-osobni-udaje. A200207\_075022\_domaci\_iri

87National Archives, the Society of Archivists, the Records Management Society, and the National Association for Information Management. (2007). *Code of Practice for Archivists and Records Managers under Section 51(4) of the Data Protection Act 1998*, Article 4.9.4, p. 37.

we have seen above—there is no general post-mortem protection, which also applies to the archival sector.88 The FOIA does not provide a specifc exemption from access to information for deceased persons. In the case of a FOIA exemption for personal information, the exemption then applies only to living persons. Post-mortem protection is thus only partially implemented in certain contexts and using other tools, some of which we have discussed in a different context above. It includes in particular the duty of confdentiality.

The duty of confdentiality in relation to the deceased is most often invoked in the United Kingdom in the case of medical records and information about the deceased's health, but cases involving other records have also been addressed by the courts. An important factor is whether the information in question was originally received from the deceased person or from another public authority, as one of the conditions for exempting confdential information from FOIA stipulates.89 In addition to medical records, the British ICO mentions banking or social care records as examples of record categories that may be subject to confdentiality even after a person's death.

Cases can be found in the common law in which post-mortem personality protection at the level of the duty of confdentiality has been recognised. Let us mention one illustrative court case for all: In the case of Bluck v. the ICO and Epsom and St Helier University NHS Trust,90 the plaintiff, the mother of the deceased daughter, requested access to sensitive personal data from the medical records of her deceased child. The

88On the phenomenon of post-mortem personality protection in the United Kingdom cf. Harbinja, E. (2017). Post-mortem privacy 2.0: theory, law, and technology. *International Review of Law, Computers & Technology*, 31(1), 26–42, https://doi.org/10.1080/13600869. 2017.1275116; Edwards, L., Harbinja, E. (2013). Protecting Post-Mortem Privacy: Reconsidering the Privacy Interests of the Deceased in a Digital World. *Cardozo Arts & Entertainment Law Journal*, 32(1), 83–130. On the situation in the British common law cf., for example, pp. 102–103. See also two interpretations prepared by the ICO: Information Commissioner's Offce (ICO). *Information Provided in Confdence (Section 41)*. *Freedom of Information Act*. https://ico.org.uk/media/for-organisations/documents/1432163/ information-provided-in-confdence-section-41.pdf; Information Commissioner's Offce (ICO). *Information about the deceased*. Freedom of Information Act. Environmental Information Regulations. https://ico.org.uk/media/for-organisations/documents/1202/ information-about-the-deceased-foi-eir.pdf

89Freedom of Information Act 2000, Sec. 41.

90Bluck v. Information Commissioner and Epsom and St Helier University NHS Trust. UKIT EA – 2006 – 0090, 17 September 2007.

defendant medical facility refused to release the data, claiming that some of the information was confdential. The plaintiff argued that this information had already lost its confdentiality since it had been published in the press, in the court statement, disclosed in correspondence with the plaintiff and so on. The Court therefore examined the records in question in the course of the proceedings and concluded that they contain information which had not yet lost its confdentiality and shall therefore not be disclosed to the plaintiff. At the same time, this judgement contains a detailed analysis of the question whether and in what form the duty of confdentiality can continue after the death of the person concerned (in the section "Did the Duty of Confdence Survive the Death of Karen Davies?").

In addition to the conclusions on very little support under case law, the court decisions were signifcantly impacted by one of the arguments put forward by the ICO: One practical consequence of a concept that would link the end of the duty of confdentiality to the death of the person concerned would be that "any medical practitioner would then be legally entitled to publish information from the records of a deceased patient, possibly for fnancial gain". Finally, it is worth mentioning one more point mentioned by the court: "The basis of the duty in respect of private information lies in conscience". The court referred to the case of Coco v. A. N. Clark (Engineers) Ltd. and quoted the words of a High Court judge, Robert Edgar Megarry: "The equitable jurisdiction in cases of breach of confdence is ancient; confdence is the cousin of trust. The Statute of Uses, 1535, is framed in terms of 'use, confdence or trust'; and a couplet, attributed to Sir Thomas More, Lord Chancellor avers that 'Three things are to be held in Conscience; Fraud, Accident and things of Confdence'."91

Finally, the post-mortem protection and disclosure of personal data of the deceased in the United Kingdom also echoes the specifcity of the British system; when assessing whether or not information about the deceased can be disclosed, even in cases of information provided in confdence, the data controller has to apply the public interest test and consider whether the public interest in disclosing the relevant information does not prevail in any particular case.

In the context of all public interest testing, and a number of assessments of whether or not archives or "living" records should be disclosed,

91Coco v. A. N. Clark (Engineers). Ltd. [1968] F.S.R. 415, 1 July 1968.

the British approach is characterised by one very important and distinctive feature, namely that the identity and character of the requestor or researcher and their motivation for requesting disclosure are not taken into account. This represents an emphasis explicitly opposed to the setting that is applied, for example, in the case of the disclosure of archival material of the former state security in Germany in the Stasi Records Archive (Stasi-Unterlagen-Archiv) within the Stasi-Unterlagen-Gesetz. Here, the identity of the researcher plays a very important role and is put on the scales when assessing whether or not the records will be disclosed. In contrast, the United Kingdom's ICO underlines within the FOIA: "Arguments that the information may be misunderstood if it were released usually carry little weight".92 It relies on the intent of the FOIA in that disclosure of information under FOIA means making it available to everyone, the entire public, and not just one particular researcher. And it also takes into account some case law.93 In doing so, the ICO stresses that the public interest test is to also consider the public interest of the requestor.94

#### 3.3 Conclusion

In summary, the analyses to date show that at the heart of the issue of access to archival records containing data concerning personal privacy and other protected areas of an individual, there is a question of achieving a balance between data accessibility and their protection, while also preserving fexibility in the face of the evolving public interest in access to information. There are several models to address this issue. The above French solution represents a kind of centralist model for managing access to records and archives. First, there exists a central, detailed, and structured system of closure periods, imposing those periods on all entities for a certain part of public records, but the general 30-year closure periods have been eliminated. This system is complemented by a further centralist element approving individual or general derogations; the decision is once again made by a central ministerial body, which in the case of the absolute majority of public archives is the above-mentioned Service interministériel des Archives, or two other ministries of defence and foreign affairs.

92 ICO, The Public Interest Test.

93Christopher Martin Hogan and Oxford City Council v. the Information Commissioner, § 61.

94 ICO, The Public Interest Test.

At the same time, France represents a large group of countries that underwent a period of oppression imposed largely from the outside. A substantial part of the archives that were open to the general public in France even before the determined general period, originated from the period of Nazi occupation of France and the Vichy regime, which is also the case of Germany, where the specifc access regime affects the archives surviving the activities of the security forces and repressive authorities of the former East Germany, as demonstrated above on the example of the disclosure of Stasi records. Central European countries went through two periods of dictatorship, frst Nazi, then Communist. These countries then typically open the archives from both these historical periods in a special regime, earlier and on a more liberal scale than would generally be required. This access once again focuses on archival records created by the ruling forces of power and those organisations that participated in the repression.95

All these countries thus faced a similar challenge when they needed to come to terms with a previous period of oppression or a totalitarian period of their history, and to do so it was essential for them to gain access to primary historical sources. The motivation for such opening of sources is poignantly expressed in the introduction of the preamble to the Czech Act on the Institute for the Study of Totalitarian Regimes and the Security Services Archive: "Those who do not know their past are doomed to repeat it".96

In this context, however, it should be stressed that in France, providing access under the specifc regime of derogations to selected, often "sensitive" archives typically happens with a substantial time lag, usually many decades, when the impact of providing access to them in real life, shaping

95 In the case of the Czech Republic, the special access regime is determined legislatively mainly pursuant to Sec. 37 (11) of Act No. 499/2004 Coll. on Archiving and Records Management amending certain other acts [Zákon o archivnictví a spisové službe a o zme ̌ ně ̌ nekterých zákonu ̌ ̊] of 30 July 2004. In addition, the specifc regime for the disclosure of the former State Security Service fles from the communist totalitarian period is governed by Act No. 140/1996 Coll., on the disclosure of fles created in the course of activities on the part of the former State Security Service, and some further acts of 26 April 1996 (Zákon c. ̌ 140/1996 Sb., o zprístupne ̌ ní svazku ̌ ̊ vzniklých cinností bývalé Státní bezpec ̌ nosti ze dne 26. ̌ dubna 1996).

96Zákon c. 181/2007 Sb. ze dne 8. c ̌ ervna 2007, o Ústavu pro studium totalitních re ̌ žimů a o Archivu bezpecnostních slo ̌ žek a o zmeně ne ̌ kterých zákonu ̌ ̊ [Act No. 181/2007 Coll. of 8 June 2007 on the Institute for the Study of Totalitarian Regimes and the Security Services Archive, and on Amendments of some Acts].

society's views, and executing public policies are already very limited. This is a striking difference as compared, for example, with the Czech Republic as one representative of post-communist countries, which opened "sensitive" materials from the communist era very soon after its collapse and made them available as early as the period of transitional justice and the emerging new democracy.

However, it is also possible to fnd quite different models and one of them is applied in Britain. Its most prominent characteristic is something that resonates in some way in virtually every developed archival system, but which the British model of access has placed at the centre as the main pillar of the whole edifce of personality and privacy protection, including the area of archiving—public interest and proportionality testing of individual public interests. Unlike the French centralist solution, however, the United Kingdom heads in a considerably more decentralist direction. Moreover, the British model highlights one of the fundamental problems that almost every advanced system of access to archives must face in the end. It is the question of an appropriate and suffciently transparent setting of control and decision-making mechanisms and an adequate guarantor, the body that shall monitor and decide on situations of specifc access to archives.

The specifcity of the British model of access to archives and data protection lies in the establishment of multiple, multi-layered, and multifaceted testing and examining public interest in the area of access to public records and archives. This is done in several phases; the frst phase is carried out by the record and information creator, and the second phase then in the case of *historical records* (i.e., in the British legal system, records created more than 20 years ago) by the archives and at certain points at the national level by a specialised independent body: the Advisory Council on National Records and Archives. This Council gives voice not only to administrative offcers and representatives of the broad spectrum of public administration but also to archivists, historians, and journalists, that is, professional groups substantially represented within the Advisory Council. This diversifed network is also joined by the ICO, the United Kingdom's independent authority set up to uphold information rights, access to information, and privacy protection that provides its opinions, analyses, guidance materials, as well as legal actions. Ultimately, however, the entire justice system has a very important say, as common law and judicial precedents also form an important part of the British legal system.

In summary, the British approach is characterised by multi-faceted control and the existence of a range of mechanisms that guarantee the application of multiple public interests entering the feld of access to records and information from different sides and perspectives. At the same time, the British system has a very elaborate and sophisticated notion of *public interest* in the area of access to information, records, and archives and the protection of data contained therein. A distinctive feature is the diversifed system of testing at different levels and from different perspectives: testing public interests and their proportionality; testing the justifcation for the application of exemptions from the general right of free and immediate access to information; testing proportionality when assessing whether to breach the obligation of confdentiality; or testing the risks of harm to various interests entering the feld defned on the one hand by the desire for maximum possible openness and transparency of public authorities, and by the need to protect data that deserve such protection, including the protection of personality on the other.

All these tests have a common denominator: Developments at all levels over the last two decades or so have led to the need to seek balance and proportionality in taking account of the somewhat conficting public interests in access to and protection of information. At the same time, the British system is characterised—in contrast to, for example, the French more centralist approach—by a decentralist approach, where the public authority itself, in one case the archive, is the basic actor in the multilayered assessment of access not only of information from "living" records but also of archival records. The British system allows it a very wide competence and expects its responsibility in testing, weighing, and assessing the diverse public interests in this feld. However, thorough control mechanisms are in place, not only at the judiciary level but also in the form of expert advisory bodies, for example, for institutions at the national level it is the *Advisory Council on National Records and Archives*.

Finally, the British system seeks to implement equal access to requestors for access to public information and archival records, as the British Prime Minister Harold Wilson tried to promote in the 1960s when he cited the risk of creating animosity between a certain group of "vetted" historians as one of the arguments against allowing access.97 The person of the researcher and their motivation should play virtually no role in the decisions on access to information. Underlying this attitude is the fact that the British system wants to see a responsible and intelligent citizen who does not need to have the contents of records and archives interpreted, explained, and possibly not made available, all for fear that the information in them might be misunderstood. Along with this, the British approach unlike the above French model, which differentiates between general and individual derogations—works with the understanding that even when information or archival records are disclosed to one particular person, it is done with the knowledge that in such a case it can be disclosed to anyone else. This is also inherent in the intent of the British model, which continually stresses that access to information/archives should be framed at a general level by a fundamentally public and not private interest in opening a relevant piece of information. The British model of access to public information, records, and archives thus fnds alien the concept to which the British themselves refer to as "privileged access" taking into account the person of the requestor and differentiating modalities of access to records according to the identity of the researcher, as implemented, for example, by the German Stasi-Unterlagen-Archiv.

All of the above-mentioned characteristics of the policy of access to public archives, as well as records and information, and at the same time their protection, can, at least in some respects, become quite inspiring for other archival systems, especially those that still lack a suffciently welldeveloped policy and procedural setup for access to archives and data protection in them.

97Harold Wilson argued, among other things, that: "It would not be easy to devise a procedure for selecting 'established' historians which would not cause resentment and perhaps, in the long run, undo the goodwill generated by a decision in principle to allow freer access". Wilson, K. (Ed.). (1996). *Forging the Collective Memory. Government and International Historians through Two World Wars*. Berghahn Books, item 6b, p. 291.

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## The Paradox of Archiving: Personality Protection and a Threat in One—Archives and Child Sexual Abuse

On a general level, it has always been the case that the best form of protection of certain data is simply to destroy the data in question or the medium. Misuse of personal data in records and archives can often occur a considerable time after their creation, as some of the examples mentioned above have indicated. Chapter 7, will provide more detail on several specifc cases of such misuse and efforts to reduce personal data in records even before they are transferred to the archive for permanent archiving. These will concern mainly census records and their management. In this context, it is not without relevance to argue that any archiving, that is, long-term preservation of data with a vision of the preservation hypothetically lasting indefnitely, always poses a potential threat to the protection of personality and privacy of citizens.

In the coming years and decades, archiving will have to expose the issue of long-term and even permanent preservation of records more in the perspective of the risks of misuse of the data that archives maintain in their vaults. In this respect, archives mirror the phenomena that can be observed in the management of "live" records and information, and the all-tooapparent growing risks of data misuse, particularly in the online environment. In the future, archives as well as record creators will need to more carefully consider the protection of personality and privacy, especially from the perspective of data (including personal) preservation as such, and this perspective should also be considered much more strictly in the application of legal procedural tools of records and data destruction within the retention and shredding procedures carried out by the archives and record creators. This particular topic will be addressed later in Chap. 8.

Perspectives on the protection of the individual are usually based primarily on the question of how a person and their personality rights may be harmed by the retention and disclosure of data concerning this particular individual. Hence the intentions of the European GDPR to allow for the "minimisation" and "storage limitation" when it comes to personal data and the correlating "right to be forgotten" ("right to erasure"). Although these intentions apply primarily to data controllers other than archives, most often of private law provenance, they also apply to archives.

Along with this trend, however, the opposite perspective proportionally fades, which is the starting point of the following subchapter: Apart from the risks associated with the preservation and disclosure of personal data, archiving in the public interest is also one of the tools by which the protection of personality rights can be implemented, even enhanced. Permanent preservation of certain categories of personal data is not only necessary for various future research purposes and offcial interests, as Terry Cook pointed out in his study for UNESCO in the early 1990s,1 but in some cases such preservation becomes the key guarantee of the protection of personal as well as other human and civil rights. I will demonstrate this thesis on some specifc cases. An analysis of the opposite situation, in which personal data, especially in archival records, have been misused, will be discussed in more detail in Chap. 7.

1 "There are certain categories or classes of records containing personal information which should be preserved by archivists around the world. These records may not necessarily be stored physically in the national archives and may be created by state or provincial and local or municipal governments. Nevertheless, their importance to research by providing the core demographic profle of the nation, to individuals' legal rights, and to government administration is incontestable. Archivists should collectively ensure that these categories of personal information records are safeguarded." Cook highlights in particular civil registers, land registers, census records as well as some other record categories. Cf. Cook, T. (April 1991). *The archival appraisal of records containing personal information: A RAMP study with guidelines*. PGI-91/WS/3. Paris.

http://www.nzdl.org/gsdlmod?e=d-00000-00---off-0hdl--00-0----0-10-0---0---0 direct-10---4-------0-1l--11-en-50---20-about---00-0-1-00-0--4----0-0-11-10-0utfZz-8-10 &cl=CL1.1&d=HASHe14ace1b9d178e777de9c9.8&gt=2, Sec. 22.

#### 4.1 Odenwaldschule and Records Testifying to Sexual Abuse of Children: Premature Archival Records Management

In 2010 Germany, a case emerged of widespread, systematic, and longterm sexual abuse of children since the 1990s by the teaching staff, including the headmaster, at the Odenwaldschule reform school in the Hessian town of Heppenheim.2 The school went bankrupt as a result of these facts coming to light, and in this context the question of what would happen to the school's surviving records began to be addressed. For the most part, these were records for which the retention periods had not yet expired, that is, materials that should normally remain with the creator and, if that was not possible, a liquidator should be the one to take care of them, ensure their preservation until the end of the retention period when the records could be transferred to the relevant archives or legally destroyed if deemed without value.

However, such a development did not occur. Immediately after the case broke out, some sensitive personal data were leaked to the public. This became one of the reasons why the Hessian State Archives in Darmstadt stepped in to store the school records. Following a consultation with the State Prosecutor's Offce, the Hessen Archives decided to take over the school records before the expiry of the retention periods, with the proviso that the fnal archival selection would be made after they had expired. In the case of the Odenwaldschule records, the Hessian State Archives took on the role of the so-called intermediate archives (in German terminology, a "Zwischenarchiv"), that is, a place on the borderline between a registry managing actual "living" records and a historical archive preserving defnitive, historical archives. At the same time, the archive is already beginning to address the question of whether it will eventually proceed to the permanent archival preservation of all of the approximately 5500 student fles, or whether it will reduce their quantity. Developments in the demand for the

2On this case, cf. a contribution at the German Archival Congress in Rostock in 2018 Kistenich-Zerfaß, J. (2018). Überlieferungsbildung, Erschließung und Nutzung im gesellschaftspolitischen Fokus: Der Bestand "Odenwaldschule" im Hessischen Staatsarchiv Darmstadt. Conference: Verlässlich, richtig, echt: Demokratie braucht Archive! 88. Deutscher Archivtag in Rostock. Cf. Č tvrtník, M. (2019). "Spolehlivé, správné, pravé demokracie potrebuje archivy!". 88. ne ̌ mecký archivní sjezd v Rostocku 2018 ["Reliable, ̌ correct, true—democracy needs archives!". 88th German Archival Congress, Rostock 2018]. *Archivní casopis* ̌ [*Journal on Archives*], 69(3), 295–314, p. 311.

records in question will certainly play a role. Currently, there are several research projects that would like to use these materials. Still, the situation of scientifc research in 10 or 20 years is hard to predict.

The timely scientifc extraction of the data contained in the Odenwaldschule records was ultimately the second factor that led the Hessian Archives to accept the school records for premature archiving. The Archives also received materials that would otherwise have been destroyed in the shredding process.

The documents and archival records of sexual abuse are one of those groups of historical sources that raise the acute question of the relationship between the actors themselves and the materials that testify about them. It was thematised in 2016 by the newly established German Independent Commission for the Processing of Child Sexual Abuse (Unabhängige Kommission zur Aufarbeitung sexuellen Kindesmissbrauchs); its 2019 meeting gave the foor to Max Mehrick, a former pupil of a private boarding school in Hessia where he was a victim of sexual violence. From the victim's perspective, Mehrick sees the surviving school records as part of the abuse itself, which further supports the exercise of power by the then perpetrators and undermines the dignity and self-determination of the victims. "That, what humiliates is archived together with the record."3

Mehrick's view of archived sources highlights a perspective that is often neglected by archivists and researchers, namely: What is the relationship of the actors themselves to the material telling about them? Would these actors wish someone else would see and read the records?! This question affects a large part of archival wealth, and at the same time it invades the feld of personality and privacy protection of the actors of archival records.

In doing so, it reveals some fundamental differences between the groups of records and the motivations of their actors. There is a difference between the interest of the representatives of political power, the minister, the mayor, the high state offcial not to disclose "their" materials and the interest of the victim of sexual violence. In the frst case, the public interest of transparency and controllability of the exercise of public political power clearly prevails; on the contrary, in the latter case the protection of the personality and privacy of the actors must be taken into account and the

3Tagung "Archive und Aufarbeitung sexuellen Kindesmissbrauchs". Unabhängige Kommission zur Aufarbeitung sexuellen Kindesmissbrauchs, Darmstadt 2019. https:// www.aufarbeitungskommission.de/meldung-27-03-2019-tagung-archive/.

victim's right "to be forgotten" needs to be considered; this term is being increasingly used in the context of European law since the GDPR introduced the "right to be forgotten" as one of the rights of EU citizens, applicable to records of private and public entities under certain conditions. Similarly, the situation is quite different when it comes to access to the archives of divorce cases, where the primary concern is to preserve the confdentiality and privacy of the persons concerned, and, for example, the fles of a criminal tribunal dealing with crimes against humanity, where the society's right to know what crimes have been committed and how law and justice have dealt with them clearly prevails.

In the case of the Odenwaldschule records, the Hessian Archives has chosen, at least for the time being, a solution that combines two notions. On the one hand, the Archives is aware that society has a right to know as much information as possible about a school that has become one of the prominent symbols of child sexual abuse in Germany. For this reason, it has decided to digitise and make available as much of the school's documentation as possible and publish the digitised versions on the web, and to do so as soon as possible. These include mainly the school's organisational regulations. On the other hand, it must respect the protection of the personality of the pupils, a signifcant number of whom have been victims of sexual abuse in the past. Files relating to pupils will remain inaccessible and will only be used for research purposes, investigations, or other offcial purposes. Of the total amount of over 270 linear metres of preserved records (of which 60 linear metres are photographs), approximately two thirds are available to the public as of 2020.4

The case of the Odenwaldschule records demonstrates that archiving does not only pose a potential risk of future unauthorised or at least ethically questionable intrusions into the privacy and protected sphere of personality of those concerned in the records, but it also fulfls the role of protecting them. The motivation for the premature transfer of the records containing data on sexual abuse was to protect the personality of the abused children on two levels: frst, to prevent any unjustifable leak of the data to the public; second, to analyse these extremely serious crimes as thoroughly as possible, both offcially and scientifcally, with the aim of eliminating them to the greatest extent possible in future.

4Odenwaldschule archival fonds (OSO), 1880–2015, HStAD Bestand N 25, Hessisches Staatsarchiv Darmstadt. The fonds description: https://arcinsys.hessen.de/arcinsys/detail Action.action?detailid=b8034.

The Odenwaldschule case has shown that public archives in Germany are, in principle, a trustworthy place for public administration and society to store even very sensitive material. Although archives take custody of records for the most part only when their greatest sensitivity has passed, this is far from always the case, as illustrated by many of the cases I have touched on so far. Public archives, like any other entity, acquire this credibility only through the long-term responsible and secure care of the material entrusted to them. In the following section, also in connection with the archiving of records testifying to child sexual abuse, I will point out quite the opposite, a case when archives and in particular their founder and administrator, in this case the Roman Catholic Church, have suffered a massive loss of credibility in the last quarter century or so.

#### 4.2 Church and Child Sexual Abuse: Access to Archives as a Form of Protection

*"In the administrative offce of the Diocese of Altoona-Johnstown, across from the Bishop's Offce was an unmarked door containing multiple fling cabinets and boxes. This unmarked door was between the large reverent portraits of Bishop James Hogan and Bishop Joseph Adamec. Some of the fling cabinets were marked "Priests Personal", "Deceased Clergy", "Priests who left the Clergy", and "Confdential Litigation Files". Some of the boxes were marked "Luddy Litigation" and "To Be Opened Only by the Bishop or Secretary of Temporalities".  The fling cabinet held four drawers, all four drawers had fles. The "Secret Archive" was a safe contained in a cabinet in the Bishop's Offce. This safe was under lock in which only the Bishop had the key. This safe contained one fle pertaining to a Franciscan Friar, Brother Stephen Baker. Another room contained a fling cabinet marked "Confdential Litigation Files". This fling cabinet was also four drawers and contained fles labeled by the victim's names.  Agents did not fnd a couple fles in a drawer which alleged child molestation, but rather boxes and fling cabinets flled with the details of children being sexually violated by the institution's own members […] Approximately 115,042 documents were removed from the Diocese. This total does not include*  *the electronic data seized pursuant to the warrants. Within these documents were the hand written memoranda of Bishop James Hogan; letters and documents of Bishop Joseph Adamec; numerous sexual abuse victim statements; letters from sexual abuse victims; correspondence with offending priests and internal correspondence. […] The Diocese of Altoona-Johnstown was in possession of a massive amount of data detailing a dark and disturbing history."*5

This is how the police search of the offce of the Bishop of the Diocese of Altoona-Johnstown in the state of Pennsylvania, USA, was conducted. Stephen Baker, the Franciscan friar whose fle was locked in the "secret archive" and whose case was at the heart of the subsequent extensive Pennsylvania-wide investigation, had been dead for several years at the time the report was released, having committed suicide in 2013 after his crimes of multiple child sexual abuse came to light.

Serious allegations of a huge number of cases of child sexual abuse by Catholic clergy in the state of Pennsylvania led to the convening of a grand jury. Its extensive investigation was conducted in every diocese of the Roman Catholic Church in the state of Pennsylvania and resulted in two exhaustive reports: the frst the 147-page 2016 report cited above detailing sexual abuse in the Diocese of Altoona-Johnstown, and the second a 2018 summary concerning the remaining Pennsylvania dioceses of Allentown, Erie, Greensburg, Harrisburg, Pittsburgh, and Scranton, totalling a breath-taking 884 pages.6

The investigation confrmed massive sexual abuse by approximately 350 clergy and other church offcials continuing for over seven decades in the state of Pennsylvania. The fndings showed that of the approximately 5000 priests in the period under review, approximately 8% were credibly accused of sexual abuse by victims; more than 1300 children were affected. The reports revealed the unimaginable scope of sexual abuse cases in the Pennsylvania dioceses and unveiled the deliberate and systematic concealment of cases from the public and law enforcement by church dignitaries, among them the appointed bishops at the time, Joseph Adamec

5Commonwealth of Pennsylvania. Offce of Attorney General. (March 2016). *A Report of the Thirty-Seventh Statewide Investigating Grand Jury*. http://www.bishopaccountability. org/reports/2016\_03\_01\_Pennsylvania\_Grand\_Jury\_Report\_on\_Diocese\_of\_Altoona\_ Johnstown.pdf, pp. 10–11.

6Commonwealth of Pennsylvania. Offce of Attorney General. (2018*). Report I of the 40th Statewide Investigating Grand Jury*. Redacted By order of PA Supreme Court 27 July 2018. https://www.attorneygeneral.gov/wp-content/uploads/2018/08/A-Report-of-the-Fortieth-Statewide-Investigating-Grand-Jury\_Cleland-Redactions-8-12-08\_Redacted.pdf.

(a descendant of Slovak immigrants to the USA) and James Hogan. Although the grand jury ultimately did not bring charges (due to the deaths of the perpetrators, their high age, the inability of the traumatised victims to testify, etc.), the published results of its investigation radically exposed the massive nature of the crimes committed, including the deliberate efforts of high church dignitaries to cover these up.

 While accepting the resignation, Pope Francis was very lenient in his comments towards the resigning Wuerl and his role in the whole affair, and he praised Wuerl's work in general. This move outraged some of the abuse victims.

This book does not intend to recapitulate the suffciently publicised cases as such, it rather wants to highlight the signifcance of the phenomenon of preservation and access to records, including archives.

The perception we saw in the previous section with Max Mehrick, one of the victims of sexual abuse at the Odenwaldschule boarding (not church) school, that the surviving school fles are part of the abuse itself and further support the exercise of power by the perpetrators at the time, is rather unique and would only be justifed if the sensitive fles remained in the custody of the institution where the abuse took place. But this was not the case with the Odenwaldschule, which ceased to exist and whose records were transferred into the care of the public Landesarchiv. Moreover, as the Australian inquiry has shown, and which will be discussed below, the Australian victims themselves saw the inaccessibility of records testifying about their sexual abuse as a greater problem than the continued retention of such records.8

The underlying problem is the very status of ecclesiastical records as these are not categorised as public but rather as private ones. For this

7Commonwealth of Pennsylvania. Offce of Attorney General, *Report I of the 40th Statewide Investigating Grand Jury*, passim, for example, pp. 222–229, 232, 244, and other parts of the report.

8Royal Commission into Institutional Responses to Child Sexual Abuse. (2017). *Final Report, Recordkeeping and information sharing*, vol. 8. Commonwealth of Australia. https://www.childabuseroyalcommission.gov.au/sites/default/files/final\_report\_-\_ volume\_8\_recordkeeping\_and\_information\_sharing.pdf, p. 11.

reason, they are not normally subject to the legislative requirements imposed on public records and archives, in particular the obligation of preservation, the obligation to offer each record to the public archive for retention and to leave it to the public archive, as a public authority, to decide which records are to be archived and which can be destroyed. Public control over church records is therefore extremely limited at this level and can only be exercised by public entities in the context of investigation mandated by law enforcement authorities or when the Church itself allows it. This situation also applies to the specifc so-called secret archives existing in the Roman Catholic Church.

Archives, including the "secret archives" are codifed in the Codex Iuris Canonici in Canon 486–491.9 The Codex requires each diocese to establish its own diocesan archive "in which instruments and written documents which pertain to the spiritual and temporal affairs of the diocese are to be safeguarded after being properly flled and diligently secured" (Can. 486, § 2). The Codex also lays down rather strict rules on access to archival records maintained in the archives.

In addition to this "unclassifed" archive, each diocese also establishes a "secret archive" with a different and much stricter access regime. While the keys to the "ordinary" archives are held not only by the bishop but also by the chancellor, and access can be granted by the bishop, the chancellor or the director, the key to the secret archives is held by only the bishop. Unlike an unclassifed archive, in the case of a secret archive, the Codex Iuris Canonici does not explicitly provide for the possibility of granting access to other persons. While records may be removed from unclassifed archives for a short period of time, again with the permission of the bishop or the director of the curia and the chancellor, it is expressly forbidden to remove any documents from the secret archive or safe (Can. 490, § 3). The secret archive must be secured so that it cannot be moved.

The Codex Iuris Canonici is brief on the content of secret diocesan archives. They hold records that are supposed to remain secret. They should maintain, inter alia, records establishing the warnings or rebukes or other documents evidencing some sort of reprimand (Can. 1339, § 3). They hold criminal investigation fles and related documentation under canon law (Can. 1719). In the context of the utterly inadequate provisions in relation to the secret archives, a single provision indicates the content of the secret archives in relation to records documenting sexual abuse by

9*Codex Iuris Canonici (CIC)*, 1983.

Church offcials: "Each year documents of criminal cases in matters of morals, in which the accused parties have died or ten years have elapsed from the condemnatory sentence, are to be destroyed. A brief summary of what occurred along with the text of the defnitive sentence is to be retained" (Can. 489, § 2). A signifcant part of the secret archives of the Roman Catholic dioceses thus consists of records and archives concerning "criminal cases in matters of morals", in other words, material testifying to cases of sexual abuse in particular. It is these documents that constitute the key documentary evidence enabling the reprehensible acts committed by church offcials to be substantiated.