Access to Public Archives in Europe: progress in the implementation of CoE Recommendation R (2000)13 on a European policy on access to archives

ABSTRACT

In this paper, we present the results of a Europe-wide survey on the implementation of CoE Recommendation R (2000)13 on a European policy on access to archives conducted in October 2022 on behalf of the Council of Europe (CoE). It shows that overall great progress has been made in improving access to their public Archives. It also shows that there are still deficits in some instances, for example in the availability of finding aids for classified holdings or in the granting of access corrections for otherwise inaccessible archive holdings. We also highlight several challenges to the accessibility of archives, many of which are related to the ongoing process of digitalization. On the one hand, there is the growing expectation of users that collections be digitized and made accessible online, while at the same time the available resources of the Archives remain scarce. Finally, digitalization and the adoption of the GDPR also exacerbate the tension between data protection and freedom of information — often at the detriment of accessibility.

KEYWORDS:

• Archives
• access
• freedom of information
• policy
• digitalization
• data protection

Introduction

Background

After the radical changes in the political systems in the eastern part of Europe, which ended the direct political and ideological confrontation of the competing powers, an intensive discussion about the function and philosophy of Archives began in the early 1990s.¹ The change in the political system, however, did not automatically lead to the modernization of the legal system and the establishing of democratic rule-of-law societies. It did not automatically lead to the prevailing of human rights, both in legislative changes and judicial enforcement, either — retrospectively, these were long and complex, in certain countries, still unfinished processes. Of particular importance in this period was the demand for making previously inaccessible documents available to the public as a basis for coming to terms with the history of the Cold War era, at institutional and individual levels alike. This necessitated the accessibility of information and documents created by the Communist party-states, regarding both current and historical documents.² The former is governed by the principles of the freedom of information, the latter by access to archives.³

Both presuppose the abolition of the practice of arbitrary classification of documents, and that access to information and access to archives must be a right, not a privilege, in accordance with the requirements of the rule of law, the historians’ demands, but also with the claims of civil society. Access to information was one of the symbols of abolishing the dictatorial past during the great political changes around 1989.⁴

The Council of Europe (CoE),⁵ whose mission is to protect human rights, pluralist democracy and the rule of law, and to promote awareness of and support for the development of Europe’s cultural identity and diversity, also recognized the growing importance of access to archives at the time and took steps to establish a system of principles and requirements in this field. In 1996, the Parliamentary Assembly of the CoE recommended that the ‘countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.’⁶ After several years of preparation and negotiation, the CoE finally adopted on 13 July 2000 a ‘Recommendation No. R (2000) 13 of the Committee of Ministers to member states on a European policy on access to archives.’⁷ The Recommendation was the first international standard in this field. It did not require uniformity from the Member States, and took differing societal, archival and administrative traditions into consideration; however it clearly expressed common principles, the compliance with which it expects all Member States to respect. Although it is not a binding legal document, its moral and political significance showed what was expected in this field from all countries.

The Recommendation focuses on three sets of principles: ethical principles, procedural principles, and technical principles. The ethical principles lay down that access to public archives is a right, the right should apply to all users, restrictions are necessary to protect public interests, restrictions are necessary to protect private individuals, all restrictions should be limited in time, and the same conditions should apply to all users. The procedural principles include the requirements that all regulations affecting access should be harmonized, the same rules should apply throughout the territory of the country, all restrictions should be based on law, users should be entitled to request special permission for access, users should be entitled to appeal against the rejection of requests, and any refusal or special permission should be communicated in writing. The technical principles require that consultation of public records and finding aids should be free, all finding aids should be accessible to users, archives should not deny access to ‘irrelevant’ documents, users should be informed of partial access, and private archives should be encouraged to follow access rules applicable to public archives.

Monitoring the implementation of the recommendation

In order to monitor the implementation of the Recommendation, a first pan-European survey was carried out in 2003/04, the results of which, together with guidelines for the implementation of the Recommendation, were published in 2005.⁸ The assumption was that especially the Archives of the new democracies in East-Central Europe would show considerable deficits with regard to the principles declared in the recommendation, while archival practice in Western democracies would already be more in line with them. While confirming the assumption about the new democracies, the study also showed that even in established Western democracies there were archival — and generally administrative and political — traditions that favoured secrecy in archives or restricted access for users. It also showed that first steps had been made towards access to archives but that many challenges and problems remained.

During more than two decades that have passed since the adoption of the Recommendation, significant changes have taken place in the archival world. The two main driving forces of the changes have been the rapid development of information and communication technologies, and, in connection with the former, changes in the expectations of the users. Both have a substantial impact on the state of access to archives.⁹

Recognizing these changes, the CoE commissioned a new monitoring study in 2022 to provide an up-to-date overview of the situation of access to archives in the CoE member states.¹⁰ In the next section, we briefly present our methodological approach and the demographics of our survey. Then we examine how the Recommendation has been implemented in the CoE member states and how it is applied in the practical work of (national) Archives. In line with the practice and intentions of the CoE, we do not aim at pinpointing individual countries or archival institutions and evaluating their quality of access, nor their deficiencies. Instead, we show the overall landscape of European public Archives and identify the new expectations towards Archives today as well as the challenges they are facing. Additionally, we have produced a table (in the Appendix) showing the extent to which national legislation and practice in CoE member states meets the requirements of the Recommendation. The following section briefly examines the state of digitalization of Archives and the associated challenges for accessibility. In the final section we summarize our findings.

Methodology

The aim of the study was achieved through a Europe-wide survey of Archives and their users, supplemented by a few qualitative expert interviews. The design of the empirical survey was based on the 2003/04 survey so that the results could be compared. However, it was not a mere repetition of the earlier survey; rather, changes in the practice and use of Archives as well as technological developments and changes in the legal environment were considered.

As part of the survey, representatives from various stakeholder groups were asked to complete an extensive questionnaire.¹¹ The survey was addressed to all National Archives of the CoE countries, selected regional and municipal Archives, as well as members of two important user groups of archives, namely academics — historians in particular — and civil society organizations (CSOs) working for the protection of civil rights or freedom of information. An invitation was sent to the 46 National Archives of the CoE member states, to 20 regional Archives from 8 countries and to 20 municipal Archives from 16 countries, as well as to 77 professional organizations of academic users and 103 CSOs, from all 46 CoE member states.¹²

Different versions of the questionnaire were created for the three respondent groups, taking into account their different tasks and level of information. The questionnaire comprized 57 questions for Archives, 38 questions for professional users, and 41 questions for CSOs.

The survey was conducted online using a professional survey tool (EFS Survey by Tivian). Fieldwork took place between 10 October and 4 November 2022. Although the survey had a high response rate at least among the National Archives (85%), the sample remained relatively small due to the small population. Out of the 39 questionnaires received, 31 could be fully analysed.¹³ In addition to the National Archives, 21 local and regional Archives from 14 countries completed the questionnaire. In the case of users (response rate about 20%), the sample was not designed to be statistically representative. As the sample was small (20 answers from historians and 17 from CSOs) and diverse, sophisticated statistical analyses were not possible; instead, the descriptive analysis was supplemented by insights from expert interviews.¹⁴

The current status of implementation of the Recommendation

In the following, the status of the implementation of Recommendation R (2000) 13, as of November 2022, is presented. The structure is based on the order of the principles formulated in the Recommendation.

Awareness and compatibility with national legislation

In the Recommendation, the CoE called on its member states to ‘adopt legislation on access to archives inspired by the principles outlined in this recommendation,’ and ‘disseminate the recommendation as widely as possible to all the bodies and persons concerned.’ Overall, this request has been met and the provisions of the Recommendation have been largely implemented (see Figure 1). According to the responses of the National Archives, national legislation in most countries now complies with the Recommendation entirely, or with a few exceptions (20 and 8 from 33 responding countries).

Figure 1. Compatibility of national legislation with R (2000) 13.

While the Recommendation is still considered an important basis, a multitude of European, national and local laws and regulations play a more important role in the daily work of Archives. These regulations include, above all, the European General Data Protection Regulation (GDPR), national Archive laws and freedom of information laws. Other relevant legislation is in preparation (such as the European Data Act). We can therefore justifiably assert that the Recommendation has significantly fertilized the archival, informational and related legislation in the Member States of the CoE and its ethical, procedural and technical principles have been substantially embedded in the practice of public Archives in these countries.

Exemptions from regulation

According to Art. 4 of the Recommendation, ‘the criteria for access to public archives … should apply to all archives throughout the entire national territory,’ which means that there should be no (public) archives that are exempt from the regulations.

This is the case in a majority (20 out of 33) of countries. However, in 13 countries (39%), there are archival institutions that are exempt from the access rules prescribed in the respective national archive laws. This share has not changed significantly since 2003/04.¹⁵ Archives that are subject to such exceptions include, for example, parliamentary Archives, the Archives of the ministries responsible for internal security and defence, and the Archives of police forces and intelligence services. However, the actual access conditions of these Archives are mostly in line with the principles of the Recommendation, i.e. access does not require prior authorization and special permission is usually granted to access restricted documents.

The criteria for access must also be the same for all (public) Archives in a country. In most countries (34 out of 36), this is indeed the case. There are deviations mainly in strongly federalized countries or when responsibilities are unclear and coordination mechanisms are not adequate.

Access as a right

At the heart of the Recommendation is the principle that ‘access to public archives is a right’ and that ‘this right should apply to all users regardless of their nationality, status or function’ (art. 5). The Archives surveyed (30 out of 31) largely agree that this is the understanding in their countries. All other principles of the recommendations can be derived from this right, in particular the right of access to all non-classified documents.

However, the details of the access conditions suggest that this is not always the lived practice.

Secret archives

First, the ‘right of access’ means that the existence of archives must in principle not be secret. In most countries, current legislation prohibits the establishment or maintenance of secret archives whose existence is not disclosed. At the same time, however, there is still a comparatively large number of countries (12 out of 31) in Europe where secret archives exist or are at least permitted.

Authorization

In many countries (20 out of 30), all users are granted free access to documents, i.e. generally without special authorization. Unfortunately, this also means that access to non-classified documents is subject to authorization in a considerable number of countries. This has not changed since 2004/05.

Special permissions

In most countries (28 out of 29) it is also possible to obtain special permission to access restricted documents. In nine countries, the production of documents can be refused on the grounds that they are allegedly not relevant to the research topic in question. The very question of the research topic, but above all the assessment of the relevance of the archival documents by archivists, contradicts the spirit of the Recommendation in every respect and opens the possibility of arbitrariness.

Rules for specific user groups

The survey shows that specific rules for certain categories of users exist in 13 out of 30 countries. These special rules particularly favour professional, academic researchers, who are arguably the most intensive users of archives.

Costs of access and document reproduction

According to Article 6 of the Recommendation, ‘access to archives is part of the function of public archive services, for which, as such, fees should not be charged.’ This is the case in almost all countries of the CoE. If there are fees for a user card, they are usually small. In three-quarters of the countries, basic access to paper-based, microfilmed and digitized content, is free, as required by the Recommendation. In 87% of the countries, online access is also free of charge. In a considerable number of countries, however, Archives charge fees for various services that exceed the actual costs (50 to 75% of the countries depending on the type of service). Nevertheless, the responding users felt that these fees are reasonable.

General closure periods

Although Archives are considered places that serve the purpose of preserving and disclosing historical sources, in many countries, they apply general closure periods to records. Closure periods are the expression of a compromise between two conflicting legal interests, namely the fundamental right of freedom of information and scientific research, and the protection of personal rights (i.e. data protection). In practice, however, documents that were freely accessible before being transferred to archival institutions must in principle remain accessible, while access to documents containing personal data is governed by specific other legislation, in EU countries since 2018 by the GDPR.

Article 7 of the Recommendation, therefore, requires, as a basic principle, that ‘legislation should either provide for the opening of public archives without specific restrictions or for a general closure period.’ Historically, closure periods have varied greatly in different countries.¹⁶ Since the adoption of the Recommendation in 2000, the closure periods have been largely harmonized in the CoE countries and are now mostly 30 years. However, there are still exceptions of up to 75 years for certain archival materials in some countries. In 14 of the 32 countries that responded, there is no general closure period; in fact, 85% of these countries have provisions for immediate access when documents are transferred to the Archives.

Documents with restricted access

In Article 7.1 the Recommendation allows ‘exceptions to this general rule’ (i.e. the opening of documents without restrictions or general closure period) ‘to ensure the protection of a) significant public interests worthy of protection (such as national defence, foreign policy and public order) and b) private individuals against the release of information concerning their private lives.’ Most countries make use of these exceptions, but have defined additional grounds on which access to documents can be restricted, e.g. official secrets and private or national economic interests.¹⁷

A majority of users from academia and CSOs report that access to documents from certain historical periods is restricted. This mostly concerns documents from the period after 1989, although it remains unclear whether access to these documents is restricted due to data protection or for other reasons (see below for more on this). Many users also stated that there are certain aspects of national history for which access to documents is restricted. Historians as well as CSOs primarily name repression and persecution as well as changes in the political system, not only in the countries of East Central Europe, but also in other countries with periods of repressive and authoritarian regimes.

In 87% of the responding countries, there are restrictions for protecting personal data in archival documents. However, many Archives and researchers currently see a conflict between the demand for accessibility on the one hand and the requirements of the GDPR for the protection of personal data on the other.¹⁸

This perception is mainly fuelled by the practical handling of the archives and the position of the respective competent data protection authorities. One of the interviewees reported that the responsibility for proper handling of sensitive data in documents had rested with the using researchers before the GDPR became effective in 2018. Since then, Archives have often decided to close potentially sensitive documents altogether for fear of possible legal violations and sanctions.¹⁹

On the other hand, the GDPR requirements, despite their general applicability, at the practical level would be interpreted differently throughout the EU, so that Archives perceived a general legal uncertainty. This is the case because the current data protection laws, freedom of information laws and Archive laws are not very well coordinated. Although this problem is known in professional circles and has led to the publication of first guidelines,²⁰ these are only considered to be of limited help for daily work due to their abstract nature.

Apart from data protection, there are other reasons why Archives are reluctant to make digital collections accessible. This includes above all copyright issues, which are often unresolved, for example because the authors have disappeared without a trace. But even if the authors are known, obtaining the rights of use is so time-consuming that Archives often refrain from making the relevant documents accessible.²¹

Most of the countries (68%) have provisions for reviewing the classification or downgrading of documents at the expiration of the closure period. If no formal procedure exists, it often remains difficult for users to find out which documents have become accessible.

In seven countries (26%), documents can be classified without a time limit, which is not compatible with the Recommendation. In addition, 13 countries (45%) provide for the possibility to reclassify documents that are already freely accessible.

Finding aids

The accessibility of archives depends on the quality and accessibility of the finding aids.²² Therefore, the recommendation requires that ‘finding aids should cover the totality of the archives’ and ‘when finding aids reveal the existence of closed documents, (…) they shall be readily accessible so that users may request special permission for access’ (art. 8). In 24 of the responding countries, finding aids are generally available and freely accessible. However, in six countries, access to all or certain finding aids is subject to prior authorization. In five countries, all from the former Eastern bloc, Archives do not produce finding aids describing their restricted documents, and in nine other countries, they are produced only in specific cases.

In 11 of the 15 countries (73%) that have indicated that they produce finding aids for restricted documents, these finding aids are accessible without restriction. This means that users in four countries (27%) cannot get an unhindered overview of an Archive’s restricted holdings. In such a situation, researchers cannot find out what restricted documents exist and thus cannot apply for special permissions or declassification. Such a practice constitutes a serious restriction of users’ rights and infringes the ‘right of access’ formulated in the Recommendation.

Special permissions to access restricted documents

In order to avoid blanket restrictions on large archival holdings and to meet the legitimate interests of affected persons, researchers and civil society, the Recommendation foresees the ‘possibility of seeking special permission from the competent authority for access to documents that are not openly available’ (art. 9).

This possibility exists in 27 of the 31 responding countries. Users can usually apply for such special permission for scientific research (in 27 countries), for private legal reasons (in 24 countries), and for journalistic investigations (in 18 countries). However, the two user groups in the survey report different experiences when applying for special permissions. While the majority of academic users report that such permissions are usually granted, CSOs experience that their applications are often rejected.

Finally, Archives from nine countries reported that they have special rules governing the archives established for preserving documents of former repressive organizations. In some countries, these special archives were incorporated into normal Archives after the closure period. Some of the countries that had such special regulations in 2003/04 have abolished them since then.²³

Partial access to restricted documents

Instead of completely restricting access to documents, there are options for partial access that represent a compromise between the desire for openness and legitimate protection interests. The Recommendation, therefore, provides that for documents that are not ‘openly accessible … , special permission may be given for access to extracts or with partial blanking’ (art. 10).

In recent years the number of Archives in which partial access is actually provided has increased significantly. While in 2003/04 there were provisions for partial access to restricted documents in just under half of the countries,²⁴ this is now the case in 26 countries (84%). However, the practical implementation of partial access remains difficult. In the countries that actually have a regulation for the partial release of archives, only 52% of the national Archives can effectively implement this in practice.

The reason for this is that the corresponding procedures (blanking, abstracting or separation) are time-consuming, as the content of the corresponding documents must be processed and evaluated. In many cases, there is a lack of staff with the necessary expertise. In addition, sanitization presupposes the responsibility of the archivist, which is, understandably, not popular among archivists. The principles, legal provisions and practice of partial access or sanitization of documents show that the traditional document-centred approach is gradually replaced by an information or data-centred approach: in paper-based collections, it is the document on which the stamp proving the classified nature of the document can be put, however, the subject of restriction is not the document but the information included in the document — these are the parts (names, for example) that need to be sanitized, and the rest is given out.

Refusal of access and appeal options

In line with the fundamental principles of the rule of law, the Recommendation requires that any refusal of access or of special permission for access shall be communicated in writing and the person making the request shall have the opportunity to appeal against a negative decision, and in the last resort to a court of law (art. 11). This important safeguard for the users’ right to access is effectively implemented in almost all CoE member states: 27 of the 29 responding countries have provisions for mandatory written notification of refusals; all 29 countries offer the possibility of administrative appeals, and all 29 countries also have the possibility of appeal to a court. These possibilities are actually used by the users, although administrative complaints and court cases against rejected permissions have mostly been unsuccessful.

In 19 of the responding Archives (63%), requests for full or partial access to documents in its custody have been refused in the past 12 months. The request was particularly often rejected for reasons of data protection or classification of documents, which is also confirmed by the users’ responses. In some Archives, however, there is a practice of refusing access on the grounds that ‘the researcher’s qualifications are insufficient’ or that ‘the documents are not necessary for the research topic.’ Both types of refusal are contrary to the provisions of the Recommendation. In the first case excluding researchers from consulting documents he or she requires is a direct discrimination. Even if using certain scientific documents may require special knowledge or skills, the Archives must not deny serving lay researchers or journalists, or only interested persons with such documents. In the second case, asking the research topic of a user in Archives can only be accepted if it serves the purpose of statistics or prioritization of processing tasks; otherwise, it is a remnant of a non-democratic past when archivists fulfilled a censor’s task.

Private archives

In essence, the Recommendation only concerns state Archives. However, the archival heritage is also preserved to a large extent in private Archives (company, family, association, church Archives, etc.). As this is equally fundamental to the nation’s collective memory, the Recommendation calls that ‘wherever possible, mutatis mutandis, attempts should be made to bring arrangements for access to private archives in line with those for public archives’ (art. 12). As in 2003/04,²⁵ only a modest number of countries (14 out of 32) have made such attempts with legal, financial or other provisions. However, users rate the research conditions in private Archives as equivalent or better than in public Archives, especially with regard to the accessibility of documents, the quality of catalogues and other finding aids, and the technical equipment.

Digitalization of Archives

As in many other areas, digitalization has become the greatest current challenge for Archives. Computer technology has led to a multiplication of the amount of information. New, born-digital documents have been added to the classic paper-based documents. On the other hand, computer technology and networks provide powerful tools to store, classify and find information and ultimately make it accessible to users. This was already recognized in the 1960s, but it was only with the spread of the Internet since the turn of the millennium that this idea became relevant for Archives, libraries and other institutions whose task is to preserve cultural heritage.²⁶ None of these technical developments, which are so crucial today, already played a role when the Recommendation was adopted in 2000. Therefore, the survey asked how Archives and their users assess the impact of digitization and digitalization on accessibility.

Digital documents

The survey revealed that the Archives tend to assess the effect of digitalization, including the preservation of born-digital documents, on the accessibility of documents positively overall: 32 of 44 responding Archives (73%) agreed that the possibility of online access is the greatest advantage. In fact, experts have confirmed that the new digital offerings are also attracting additional user groups. However, since the process of digitizing existing holdings is by far not completed, the Archives and the users feel that the actual accessibility has only been partially improved.

From an internal perspective, 60% of Archives answered that digital documents reduce the archivists’ burdens. At the same time, many, especially smaller Archives feel that digitalization might distract from other important tasks and, given their notoriously tight financial situation, requires additional resources. Digitalization and online access have also increased concerns about additional legal risks, particularly in relation to data protection (43% of the respondents) and copyright (40%).

Despite the considerable efforts made in recent years, the share of digital documents in the Archives’ holdings is still low. Fifty percent of the Archives stated that they had already digitized more than 5% of their analogue text documents, and in most Archives, the share of digital-born documents in the total holdings is less than 5%.

When it comes to the question of which documents should be digitized as a matter of priority, conservation aspects are in the foreground for 81% of the Archives, but 74% also respond to user demands.

Remote access

Besides digital documents, remote (online) access to finding aids and documents, usually via the Internet, is the second element of a digital Archive. Ninety-three percent of the Archives participating in the survey offer online access to catalogues and other finding aids, of which, however, only 11% offer a direct link between online catalogues and individual (digital) documents. As far as online access to the (digital) documents themselves is concerned, this is free of charge in the vast majority of Archives (88%). However, in almost half of the national Archives (48%) and most regional and local Archives (90%), only certain collections, series, or selected samples of digital documents are accessible online, not the entire digital archive.

The survey results on all digitalization issues show that archives today face significant challenges that require a new, holistic approach to ensure, ‘that the information becomes, and stays, sustainably accessible.’²⁷

Summary

Overall, the survey shows that CoE member states have made great progress in implementing Recommendation R (2000)13, in particular there are no longer any countries with incompatible national legislation.

Comparing the current survey with the one conducted in 2003/04, it is clear that there has been a shift in emphasis regarding the accessibility of the archives: At that time, the biggest problems were official secrecy and classified data and documents. The biggest problem now is to find an appropriate balance between the desire for transparency and openness on the one hand and the protection of privacy and personal data on the other. Or in other words: while in the early 2000s laws and legal practices were often designed to protect state interests against citizens, today laws focus more on safeguarding citizens’ rights. The adaptation of Archives to this change is still ongoing.

This development will continue to grow in importance, as a large proportion of documents are now digital born and can easily be made available online, which also increases the risk of data protection and copyright infringements. There are numerous reasons for the legal uncertainty that has emerged: a lack of binding guidelines tailored to the everyday tasks of Archives, inconsistent decisions of supervisory authorities, and the lack of clarification of important questions by the (highest) courts.

Despite the common history and cultural proximity of countries in certain European regions, there is a persistence of historically grown archival cultures that still have an impact on practice today but are also noticeable in the openness to adapt to new digital technologies and services.

Furthermore, it must be noted that apart from many improvements in the accessibility of archives, there are still undesirable practices in a certain group of countries that contradict the provisions and the spirit of the Recommendation (see table in the Appendix). Despite existing laws declaring access to archives as a right, in these countries users must apply for permission i.e. privilege to access otherwise unrestricted documents. Similarly, the arbitrary practice of certain archival institutions to restrict access to documents, deemed ‘unnecessary’ for the user’s research topic, or to classify them without time limit is a serious curtailment of the right to information. A similarly unacceptable practice is discrimination against researchers based on their nationality, qualification or profession.

The principles and provisions of the Recommendation have not lost their validity in the new technological environment. However, we welcome the fact that the Council of Europe is considering a revision of the Recommendation to take account of the technological changes and user expectations as revealed in our survey.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was funded by the Council of Europe, Division of Culture and Cultural Heritage [contract no. CCDGII.368.2022]. This work was partially supported by funding from the German Federal Ministry of Education and Research [grant no. 16KIS1372K]

Notes on contributors

Michael Friedewald

Michael Friedewald is a senior research fellow and head of the research group on ‘Innovation and Digitalization’ at the Fraunhofer Institute for Systems and Innovation Research ISI in Karlsruhe, Germany. He holds diploma degrees in Engineering (1992) and Economics (1995) from RWTH Aachen University of Technology and earned a doctoral degree in History of Technology (1999) from the same university. His research areas include technology foresight and technology assessment with a focus on societal and economic impacts of digital technologies. He has been involved in numerous national and European research and consulting projects dealing with privacy and data protection, surveillance, (cyber)security and self-determined living in the digital world. He is author and editor of more than 20 books, including Surveillance, Privacy, and Security: Citizens’ Perspectives (2018, Routledge).

Iván Székely

Ivan Szekely, social informatist, CSc in sociology, is an internationally known expert in the multidisciplinary fields of data protection and freedom of information. Former chief counsellor and a founder of the office of the Hungarian Parliamentary Commissioner for Data Protection and Freedom of Information, Szekely is presently Senior Research Fellow and Counsellor at the Vera and Donald Blinken Open Society Archives at Central European University (Blinken OSA Archivum), a senior member of the management, leader of international projects, and course director. Szekely was member of the Committee on Archival Legal Matters of the International Council on Archives (ICA); he participated in the preparation of the Recommendation of the Council of Europe on access to archives and was the head of the project monitoring its implementation. He is co-author of the Handbook on access to archives of the Council of Europe. His research interests and publications are focused on openness and secrecy, privacy, identity, surveillance and resilience, memory and forgetting, and archivistics.

Murat Karaboga

Murat Karaboga is a political scientist, completed his doctorate on the emergence of the GDPR and has been working at Fraunhofer ISI since January 2014. He has been involved in researching the privacy and data protection implications of numerous new technologies (e.g. IoT, smart cars, blockchain). Most recently, he led a study to investigate the privacy and societal implications of voice, speech and facial recognition technologies. He is currently leading a study investigating the impact of deepfakes on Swiss society.

Notes

1. Körmendy, ‘Changes in Archives’ Philosophy and Functions.’

2. Gruodytė and Gervienė, ‘Access to Archives in Post-Communist Countries’.

3. According to definition in the CoE Recommendation the word ‘archives’ has the following meanings: ‘i. when it is written with a lower case ‘a’: the totality of the documents … transmitted to the Archives for permanent preservation … ii. when it is written with an upper case ‘A’: the public institutions charged with the preservation of archives.

4. Majtényi et al., Az Elektronikus Információszabadság [Electronic Freedom of Information]; Tyacke, Van Den Boeck, and Steendam, ‘Archives in a Democratic State.’

5. The Council of Europe was the first pan-European institution and has its headquarters in Strasbourg, France. Since Russia’s withdrawal in spring 2022 the CoE has a total of 46 members. Two further countries are accession candidates, six mainly non-European countries have an observer status.

6. Council of Europe, ‘Measures to Dismantle the Heritage’.

7. https://rm.coe.int/16804cea4f

8. Kecskeméti and Székely, Access to Archives.

9. Hofman, ‘Rethinking the Archival Function in the Digital Era;’ Székely, ‘The Four Paradigms of Archival History’.

10. Friedewald, Székely, and Karaboga, ‘Access to Archives’.

11. The questionnaire is available online at https://doi.org/10.5281/zenodo.7676589

12. According to the groups mentioned explicitly in the Recommendation we included civil society organizations that see themselves as ‘pressure groups’ or ‘watch dogs’ and that are committed to the protection of human rights, freedom of information and against surveillance and censorship. As it is difficult to find a single organization that is representative of a country’s civil society, 2–5 organizations per country were typically selected. To address the historians among the users, we aimed to contact them through their professional associations, the national science academies and the International Committee of Historical Sciences (ICHS). We had hoped for a word-of-mouth or avalanche effect, but this did not materialize. The responses came exclusively from those who had been contacted directly.

13. Respondents included (mainly national) Archives from the following countries: Andorra (AD), Austria (AT), Belgium (BE), Bulgaria (BG), Croatia (HR), Cyprus (CY), Czech Republic (CZ), Denmark (DK), Estonia (EE), Finland (FI), France (FR), Georgia (GE), Germany (DE), Greece (GR), Hungary (HU), Iceland (IS), Ireland (IE), Latvia (LV), Liechtenstein (LI), Lithuania (LT), Luxembourg (LU), Moldova (MD), Monaco (MC), Montenegro (ME), the Netherlands (NL), North Macedonia (MK), Norway (NO), Poland (PL), Portugal (PT), Romania (RO), San Marino (SM), Serbia (RS), Slovakia (SK), Slovenia (SI), Spain (ES), Sweden (SE), Switzerland (CH), Ukraine (UA), and the United Kingdom (UK).

14. Between 20 January and 7 February 2023, we conducted six one-hour interviews with representatives of a regional and a national Archive, academic experts from Archival Science and Digital History, a civil rights lawyer and a data protection commissioner.

15. Kecskeméti and Székely, Access to Archives, 23f.

16. Čtvrtník, ‘Closure Periods for Access;’ Valge and Kibal, ‘Restrictions on Access to Archives’.

17. Valge and Kibal, ‘Restrictions on Access to Archives’.

18. Similar observations have been made for the USA, cf. Dressler and Kearns, ‘Probing Archivists’ Perceptions.’

19. András Sipo, Interview with the authors on 26 January 2023.

20. European Archives Group, ‘Guidance on Data Protection for Archive Services’.

21. Andrea Hänger, Interview with the authors on 7 February 2023.

22. Freund and Toms, ‘Interacting with Archival Finding Aids’.

23. Kecskeméti and Székely, Access to Archives, 29.

24. Ibid., 30.

25. Ibid., 30.

26. Szekely, ‘Do Archives Have a Future?’.

27. European Archives Group, ‘Archiving by Design;’ similarly Székely, ‘Do Archives Have a Future?’.

Appendix

Table A1. Overview of countries complying with the various provisions of R (2000) 13. Compiled from the survey answers of national Archives.

Article in R (2000)13	Related Question in survey	Compliant countries
Art. 4: ‘The criteria for access to public Archives, … , should apply to all Archives throughout the entire national territory…’	Q3.1 Are there public archival institutions … which are exempt from the general access rules laid down in the Archives Act … ?	AD, AT, BG, HR, CY, EE, FR, HU, LI, LT, ME, SM, RS, SK, SI, ES, SE, CH, UA
	Q3.6 Does the current legislation forbid the creation and maintenance of secret Archives (the existence of which is not revealed) by public agencies?	AD, AT, HR, CY, EE, HU, LI, MK, SK, SI, CH, UA, BE, FI, IE, NO, PL, PT
Art. 5: ‘Access to public Archives is a right.’	Q4.1 Is access to Archives regarded as a right in the relevant legislation?	AD, BE, BG, CH, CY, DE, EE, ES, FI, FR, HR, HU, IE, IS, LT, LV, MC, MD, ME, NO, PL, PT, RO, RS, SE, SI, SK, SM, UA
	Q4.2 Is access to unrestricted documents systematically subject to authorization?	AD, BE, CH, CY, EE, ES, FI, FR, HR, HU, IE, IS, LT, MD, NO, PT, RO, SI, SK, UA, GR
	Q4.3 Are Archives entitled to deny production of documents they consider irrelevant for the … research theme?	AD, BE, CH, CY, FI, FR, HR, HU, IE, IS, LT, LV, NO, PT, RO, RS, SE, SI, SK, SM, UA
Art. 5: ‘ … [T]his right should apply to all users regardless of their nationality, status or function.’	Q4.4 Are there specific rules applicable to specific categories of users?	AD, AT, CH, CY, EE, FR, GR, HR, HU, IE, MC, ME, PL, PT, RO, SE, SI, SK
Art. 6: [For] Access to Archives … fees should not be charged.	Q5.1 Is access to the paper-based documents and their microfilmed or digitized copies — as a main rule defined by law — free of charge?	AD, BE, CH, CY, DE, EE, FI, GR, HR, IE, LI, LV, MD, ME, NO, PL, PT, RS, SE, SI, SK, SM, UA
Art. 7: ‘The legislation should provide for a. either the opening of public Archives without particular restriction; or b. a general closure period.’	Q6.1 Is there a general closure period specified in the archival legislation for documents transferred to Archives for permanent preservation?	AD, AT, BE, BG, CH, DE, ES, HU, IE, IS, LI, LT, MC, ME, PL, PT, RO, SM
	… if not, are documents immediately opened?	CY, EE, FI, FR, HR, NO, RS, SE, SI, SK, UA
	Q6.2 Do the Archives proceed, every year, with the opening of records that are no longer covered by the general closure period?	AD, BE, BG, CH, DE, EE, ES, FI, HU, IE, LT, MD, ME, NO, PL, PT, RO, SE, UA
Art 7.1: ‘Exceptions to this general … can be provided to ensure the protection of: a. significant public interests … ; b. private individuals against the release of information concerning their private lives.’	Q7.7 Are there provisions for regular review/downgrading of classified documents?	CY, DE, EE, ES, FI, FR, GR, HR, HU, IE, LT, LV, MD, ME, NO, PL, PT, RO, SE, SK, SM, UA
Art 7.2: ‘Any closure beyond the usual period should be for a pre-determined period, at the end of which the record in question will be open.’	Q7.9 Are there documents classified without time limit?	AD, BE, BG, CH, EE, FI, HR, HU, IE, IS, LT, LV, MD, ME, PL, PT, RO, RS, SI, UA
Art. 8: ‘Finding aids should cover the totality of the Archives. … Even when finding aids reveal the existence of closed documents, … , they shall be readily accessible so that users may request special permission for access.’	Q8.2 Do the Archives prepare finding aids describing restricted holdings?	AD, AT, BG, CH, CY, DE, EE, ES, FI, FR, HR, HU, IS, LT, MC, MD, NO, PL, PT, RS, SI, SK
	… if yes: Are these finding aids to restricted documents accessible without restriction?	AD, BG, CH, ES, FI, FR, IS, MD, NO, PL, PT
Art. 9: ‘The applicable rules should allow for the possibility of seeking special permission … for access to documents that are not openly available … ’	Q9.1 Can users apply for special permission for access to restricted/non-accessible documents?	AD, AT, BE, CH, CY, DE, EE, ES, FI, FR, GR, HR, IE, IS, LI, LV, MC, MD, ME, NO, PL, PT, RS, SE, SI, SM, UA
Art. 10: ‘If the requested Archive is not openly accessible … , special permission may be given for access to extracts or with partial blanking.’	Q10.1 Are there provisions relating to partial release of restricted documents (separation of parts of the document, anonymization, blanking etc.)?	AD, CH, CY, DE, EE, ES, FI, FR, GR, HR, HU, IE, IS, LI, LV, MC, NO, PL, PT, RO, RS, SE, SI, SK, SM, UA
Art. 11: ‘Any refusal of access or of special permission for access shall be communicated in writing, and the person making the request shall have the opportunity to appeal against a negative decision, and in the last resort to a court of law.’	Q11.1 Are there provisions for obligatory written communication of refusals of access requests?	AD, BE, BG, CH, CY, EE, ES, FI, FR, HR, HU, IS, LI, LT, LV, MC, MD, ME, NO, PL, PT, RS, SE, SI, SK, SM, UA
	Q11.2 Are there possibilities of making administrative appeals?	AD, AT, BE, BG, CH, CY, DE, EE, ES, FI, FR, HR, HU, IE, IS, LI, LT, LV, MC, MD, ME, NO, PL, PT, RS, SE, SI, SK, SM, UA
	Q11.3 Are there possibilities for appealing to courts?	AD, AT, BE, BG, CH, CY, DE, EE, ES, FI, FR, HR, HU, IE, IS, LT, LV, MC, MD, ME, NO, PL, RO, RS, SE, SI, SK, SM, UA
Art. 12: ‘Wherever possible, … attempts should be made to bring arrangements for access to private Archives in line with those for public Archives.’	Q12.1 Are there legal, financial or other provisions intended to encourage access to private Archives?	AD, BE, EE, ES, FI, HR, HU, IE, NO, PL, SE, SM, UA

AD = Andorra, AT = Austria, BE = Belgium, BG = Bulgaria, CH = Switzerland, CY = Cyprus, DE = Germany, EE = Estonia, ES = Spain, FI = Finland, FR = France, GR = Greece, HR = Croatia, HU = Hungary, IE = Ireland, IS = Iceland, LI = Liechtenstein, LT = Lithuania, LV = Latvia, MC = Monaco, MD = Moldova, ME = Montenegro, NO = Norway, PL = Poland, PT = Portugal, RO = Romania, RS = Serbia, SE = Sweden, SI = Slovenia, SK = Slovakia, SM = San Marino, UA = Ukraine.