Archival and records management legislation and regulations

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Eric Ketelaar

INTRODUCTION

1. This study is intended to assist information policy and planning specialists; those involved in proposing, drafting and reviewing legislation and administrative regulations; and especially archivists and records managers, in creating, developing and evaluating modern archival and records management systems and services, particularly in the public administration. Based upon an analysis of current legislation and regulations in nearly 120 countries, the study concludes with a set of guidelines to assist in planning or reviewing the legal and administrative instruments essential for viable systems and services.

2. Unesco and the International Council on Archives (ICA) have been concerned for a number of years with archival legislation, and Unesco's assistance to Member States in the development of infrastructures for archives and records management has generally included advice on archives and records management legislation. 1. Regional seminars have also been sponsored or organised by Unesco and ICA to increase awareness of the importance of archival legislation among archivists and administrators in different parts of the world. A Manual of Tropical Archivology , written under the aegis of the ICA and published in 1966 with the co-operation of Unesco, contains a valuable chapter on principles of archival legislation and regulation which still deserves attention. 2.

3. In addition, ICA has devoted four volumes of its review Archivum (those for 1967-1971) to the publication of archival legislation of countries in all parts of the world, a fifth volume appeared in 1982, updating the former publication. In the past decade twenty countries have adopted new basic archival legislation. This "eloquently expresses the breadth of the movement towards renewal and of the growth of archival awareness taking place, a movement in which the activities of Unesco and the International Council on Archives clearly play a leading part". 3.

4. A further contribution towards harmonizing archival legislation was Unesco's publication in 1972 of a Draft Model Law on Archives, by S Carbone and R Gueze. This work, however, was too closely based on Latin, especially Italian, archival legislation to be of direct value to countries with a different experience. 4.

5. In 1972 Unesco organised an Expert Consultation on planning national archives services which endorsed a proposal to prepare a study concerning planning of archival infrastructures, of which guidelines on legislation and regulation should be a component. Partly on the basis of these recommendations B Delmas included in his contribution to J H d'Olier-B.Delmas, Planning national infrastructures for documentation, libraries and archives; outline of a general policy (1975), 5. criteria for archival legislation and regulations, together with an outline model law on archives.

6. Finally, the 1977 Unesco publication Establishing a legislative framework for the implementation of NATIS 6. contains a checklist of points which should be considered for inclusion in legislation for a national archives system. These points are elaborated by Mr A W Mabbs in two chapters, "Legislation for public records and the National Archives" and the "Co-ordination of national archive services", which deal with the broad criteria which might be applied in drafting archival legislation.

These chapters are of value for any archivist and administrator; they are based upon professional analysis of existing legislation and mature experience of archival needs, especially in developing countries.

7. All of the above indicated studies refer to legislation, published in Archivum and elsewhere in general terms only. For a better understanding and a more thorough synthesis, however, an analysis and comparison of current legislation is essential. The recently published volume 28 of Archivum has widened the field for such an analysis. Like several of the previous studies the present one offers a checklist and guidelines on subjects which should be considered for inclusion in archival legislation. These RAMP Guidelines, however, devote more attention to specific legislative questions concerning records management and they express preferences under specific circumstances for certain alternatives. They also indicate which provisions are considered essential, as contrasted with those that are only desirable or optional, depending upon conditions and circumstances in a particular country, with special attention to record-keeping traditions and administrative practices.

8. The analysis of current legislation and regulations is based mainly on texts as published in Archivum. Excluded from these texts, however, are details of internal organisation, of archives services and their functioning, regulations on professional training and status of archives personnel, and detailed rules for selection, transfer, arrangement and description of archives. Information about these subjects has been provided at the author's request from a selection of countries :

9. In addition to the legislation published in Archivum and the publications listed in the Bibliography, the following documents have also been consulted:

Archives Bill 1983 (Australia);

Draft-Federal Archives Law (Federal Republic of Germany); Royal decree on records management 1980 (Netherlands); Rhode Island (US) Archives and Records Management Act (draft); Ordinance 1964: 504 concerning the use of writing material for state business (Sweden); Presidential Records Act of 1978, United States, 44 USC, chapter 22; Public Record Law 1972 (Cyprus)

11. This study makes the following distinction between legislation and regulations. Legislation is the product of the highest legislative authority of a nation (or, in a federal structure, a state), in a form appropriate to the constitution. Regulations may be regarded as embracing all measures concerned with the enforcement of legislation stricto sensu, i.e. those enactments established by the legislature (Parliament with the collaboration of the executive body). Regulations, however, may be enacted by any administrative authority with regulatory powers. 7. In this study the term legislation is often used in a broad sense, encompassing both formal laws and regulations.

12. When referring to archival legislation and regulations of a particular country which has been either published in Archivum or been mentioned in paragraph 9, the exact location is provided only in the case of a quotation. Please note that legal texts in languages other than English, French, German, Italian, or Spanish were translated into one of these languages for publication in
Archivum. If the text has been published in a language other than English, the author of this study has substituted his own translation, not from the original, but from the text as published.
In this study countries are indicated with their short name in English according to the international standard ISO-3166-1981.

FOOTNOTES TO THE INTRODUCTION

1. Two recent examples: C V BLACK, Grenada; archival development (FMT/PG1/81/182) (Unesco, Paris 1981);

F B EVANS, The Republic of Cyprus: development of an archival and records management programme (FRM/PG1/81/166) (Unesco, Paris 1981) (PP/1981-1983/5/10. 1/03).

2. BAUTIER, Principles of archival legislation (see bibliography for full citation).

3. Foreword to Archivum, vol.28, p.16.

4. For a critical review of this publication, see S C NEWTON, Journal of the Society of Archivists, vol. 4, nr.8 (October 1973) pp. 654-659. The draft model was copied to a great extent in the Algerian archival law of 1977.

5. DELMAS, Archives.

6. Establishing a legislative framework for the implementation of NATIS

7. BAUTIER, Principles of archival legislation, p.33.

5. GUIDELINES

5.0 Introduction

187. This chapter provides a summary of the main subjects which should be considered for inclusion in archival legislation and regulations. A number of these subjects have already been treated in the NATIS GUIDELINES (chapter IV and V), but in order to present a set of self-containing guidelines, this study cites, where appropriate, the relevant parts of the NATIS recommendations as NG, with the paragraph number. Other references are to paragraph numbers in the present study.

188. This summary distinguishes between essential subjects that should be treated in the law and matters that are desirable or optional and that could be treated in regulations. The greatest care must be taken in applying these guidelines to the structure and objectives of the archival services in a given country. Regulations can more easily be changed than laws and offer consequently a flexible basis for the implementation of archival and records management programmes. Their flexibility, however, could prove to be a disadvantage in times of political or financial difficulties since archival and records management programmes may be altered through simple change of the regulations or even through interpretation of too flexible regulations.

Regulations issued by the minister responsible for the Archives may lack the necessary authority with institutions responsible to other ministers. Therefore, the law should define clearly the distribution of competencies and authorities.

In most countries the hierarchy of legislation includes, after the law (Act of Parliament) but before ministerial regulations, ordinances, decrees, etc. issued by the Crown, the President, or the Council of Ministers, etc. Where possible, regulations with such a supra-ministerial authority are preferable to regulations by a minister or by the archival administration itself. In general, the demarcation between the law and regulations depends to a great extent on the legal tradition and administrative practices in a particular country.

5.1 Definition of records and archives in general (see pare. 13-25)

189. Every archival law should define public records in order "to avoid ambiguity about the scope of the responsibility of the National Archives" (NG pare. 125). To set out the difference between archival legislation and legislation in other information fields, it is essential that the definition of records makes it clear that records are created, received and maintained by an institution or individual in the transaction of its business. It is not always advisable to restrict the definition to public records, because legislation will necessarily affect, to some extent, private records and archives.

190. Enumeration of physical types or forms in the definition of records always lags behind new technology, and thus creates continuing problems of interpretation. Therefore, a definition in general language, covering recorded information, regardless of physical forms or characteristics, is essential (NG pare. 126). Such a general definition could be elaborated in regulations or a circular letter, by giving a non-exhaustive enumeration of types and forms of documents and other materials that are included in the definition.

5.2 Definition of public records and archives (see pare. 26-32).

191. "It is important that legislation for public records should be applied not only to the whole range of bodies which discharge the legislative, judicial and administrative functions of the State, but also to State-controlled corporations and all other organisations directly or indirectly controlled by government, which can be considered as public bodies. Failure to provide for statutory control over the widest possible range of public bodies defeats much of the purpose of archival legislation" (NG pare. 127). A definition referring to the origin of records (i.e. to provenance) tends to reflect the professionally accepted definition of records (pare. 15), rather than a definition that refers to ownership. The last type, however, which has been linked with the British concept of "undisturbed custody" of records as the basis for their evidential value, is used where the intention is to include historical manuscripts and other documentary property belonging to the State. "Whatever method of definition is used, it is desirable to ensure against omission or future changes in the status of public bodies by providing some formal means, without resort to new legislation, of extending statutory control to any records which on grounds of a technical interpretation of the definition or for other reasons, appear to be excluded" (NG pare. 127).

5.3 Inalienability and imprescribility of public archives (see pare. 33-37)

192. Public archives are public property, part of the public domain, and therefore inalienable and imprescribable. These qualities of archives may, depending on the law of a given country, be made explicit in an archival law. The National Archives should have a right to replevin (or, at least, a right to make copies) of public archives which have gone astray (NG pare. 145).

5 4 Non-public archives (see pare. 38-50)

193. The National Archives should be entitled by law to acquire private archives (NG pare. 143). Legislation should be considered making the National Archives responsible for the compilation and maintenance of a register of all archives of non-public provenance and all documentary collections with research value. The law should oblige owners and custodians of such "registered" archives to preserve them in the best available conditions. Any change in the place of their deposit should be reported; and any proposal to sell or otherwise dispose of them should be referred to the appropriate authority. Export of such archives should be forbidden, or should be subject to the approval of the competent archives authority (NG pare. 159). The State may be given a right to preferential purchase of private archives.

5.5 Functions and organisation, of public archives services (see pare. 51-61)

194. The following functions of public archives services (national, regional, local and special archival institutions) should be statutory, apart from records management functions outlined in paragraphs 200 and 201 :

i) the safe custody in suitable buildings and in suitable environmental conditions of all (national) archives, from whatever public or non-public source transferred, including archives in audio-visual, machine-readable and all other forms;
ii) the arrangement and classification of archives according to accepted archival principles and methods;
iii) the provision of means of reference by whatever means are available and appropriate in order to facilitate access to archives and the retrieval of information in them;
iv) the provision of search or reference rooms in which suitable facilities are available for the inspection of archives which are lawfully open to the public, and the provision of other reference services (for dealing with postal inquiries, etc.) which are necessary;
v) the provision of facilities for making copies of archives by photographic or other reprographic processes, and for selling such copies;
vi) the provision of facilities for the repair and conservation of archival material of all kinds by appropriate methods;
vii) the publication of guides, texts, calendars, inventories, finding-aids and any other works suitable for publication prepared by staff of the Archives or commissioned by the Archives;
viii) the promotion of the educational value of archives in appropriate ways including the preparation of exhibitions and the loan of documents to exhibitions organised by other institutions (NG para.148).

195. The formal authority to take actions in respect of public records may be vested with the Minister or with the National Archives or some supreme archival authority. The NATIS Guideline (NG para.151) does not express a preference. There are good reasons, however, to prefer a distinction between professional and political responsibilities, to be reached by giving the National Archives a form of self-government and keeping them somewhat independent from the Minister.

In most countries it is not a task for legislation to define the internal organisation, of any organisation, or its staffing arrangements. It is essential, however, for public archives legislation to authorise the appointment of the head of the National

Archives and to define his statutory duties and responsibilities. Details of internal structure and organisation, which require some degree of flexibility to meet changing conditions, and the recruitment and qualifications of staff, are matters for which statutory authority is usually considered unnecessary and may be dealt with by the general staffing regulations drawn up for the Government service (NG para.149).

196. Regarding the internal organisation, of archives services, inclusion in the law may fix the organisation, leaving not much possibility for development and necessary changes. Delmas gives a theoretical organisation, chart of an archives service in three stages of growth. In 1977 the following principles were adopted by The National Association of State Archives and Records Administrators (United States) to assist the several States in the establishment and operation of State archival and records management agencies :

i) Legislation:

Comprehensive legislation which recognises the fundamental nature of the relationship of government records as instruments of accountability by the government to the people, evidence of public and private rights and obligations, an informational source on matters involving the continuous administration and management of the government; preserves the patrimony of the State as evidenced in its records; and provides exclusive authority to carry out archives and records management functions and responsibilities on a government-wide basis.

ii) Institutional identity:

The institutional character of the agency as the repository of the permanently valuable records of the government to provide sufficient autonomy for its protection against political interference, including tenure for the agency head, civil service protection for its personnel; and control of agency facilities, equipment and resources.

iii) Organisational placement:

Placement within the government that prevents the submission of the agency beneath competing interests; eliminates blurring of functions with other professional agencies and disciplines; protects against interference with agency program responsibilities under the colour of co-ordination authority; and eliminates hampering supervision and control by having little or no professional knowledge of its program responsibilities and operations.

iv) Program authority:

Sufficient authority for the agency to define records problems and needs of the State, to prescribe appropriate programs, and to effectively administer the programs.

v) Exclusive responsibility:

Exclusive program responsibilities that do not diffuse the primary responsibility of the agency for government records.

vi) Appropriation and expenditure:

Funding by direct appropriation to the agency by the Legislature with authority to budget and expend such funds.

vii) Internal policy

Exclusive agency determination of the internal policies and professional needs of the agency.

viii) Regulations and standards:

Power to prescribe and enforce rules, regulations and standards relating to government records administration.

5.6 National archives system (see para.62-69)

197. "Always a matter of legislative concern, the organisation, of public archives is closely related with the administrative system of each country". In any circumstances it will be necessary to establish a central organisation, with executive and advisory functions, responsible to a Minister charged with the implementation of an agreed national archives policy (see paragraph 198). In some countries it would be appropriate for these co-ordinating functions to be exercised by the National Archives, or at least by a separate Directorate within it; in some it would be more suitable to create a separate executive authority; and in others, where it is constitutionally impossible to provide central direction, it should be possible to achieve some measure of co-ordination by a suitably constituted Advisory Council, with no executive powers (NG para.161).

5.7 Ministerial responsibility (see pare. 70-72).

198. A matter which requires legislative action and which demands careful consideration is the choice of the minister responsible for the archives (NG para.150). The Natis guidelines review the arguments for placement of the archives under the minister for cultural affairs and express a preference for a minister who has a considerable degree of inter-ministerial influence or authority. Such a preference is based on the fact that an archives service should be deeply involved in across-the-board records management activities which might be more effectively performed with the support of such a minister. This matter was discussed during the 19th International Conference of the Round Table on Archives, which advocated placement at the highest level of inter-ministerial or supra-ministerial authority. But in this respect "no system can be said to be ideal", especially when one takes into account that the best placed minister is the one personally interested in the work of the archives, and such placement cannot be guaranteed by legislation.

5.8 Advisory Body (Archives Council) (see pare. 73-83)

199. In some countries there may be a preference to give the Archival Council executive and/or supervisory powers, depending on the structure of the national archives system (see pare. 197). In most archival laws, however, the Archives Council is simply an advisory body to enlist the participation/representation of producers and users of archives in the formulation and implementation of records management and archival policy. The law should determine the function, the main responsibilities and the composition of the Archives Council. The details of its membership and functioning should be regulated in regulations.

The Council should be consulted on all projects of a legislative character relating to records/archives, the establishment or modification of the archival network and all draft records schedules. It may be desirable to also consult the Council on postponement of transfer, restriction of access, and the training programme. The Council may be called upon to participate in the drafting or revision or archival legislation and/or regulations. The law should specify that the Archives Council consists of members ex officio (among them the National Archivist) and members appointed by the Head of State or the Council of Ministers.

5.9 Records management (see pare. 84-92)

200. The seventh International Congress on Archives (1972) highlighted the lack, in nearly all except the socialist countries, of special legislation which clearly formulates rights and obligations of administrative archives. The degree of control exercised by archive services over current records varies widely from one country to another. The very minimum should be a right of inspection (see pare. 202), together with control over appraisal, destruction and transfer (see pares 204 and 205). The involvement of the National Archives in records management should preferably extend to the formulating of standards, procedures and guidelines and training of agency records offices. Maximum involvement - statutory responsibility for the whole range of records management functions (desirable as it would appear to be) - will not be feasible in many countries, and indeed, in the USA there has been a recent revision in this position.

201. Regulations and/or circulars should regulate:

- responsibility of the registries
professional qualifications, training
- records creation (incl. forms management, standards on media, equipment and supplies, paperwork management)
- Filing (filing plans may be approved by the National Archives)
- security classification
- arrangement and description of records
- consultation, lending (communication of records/archives)
- reprography
- vital records management
- preservation

5.10 Right of inspection (see pare. 93-99)

202. The legal link between records management and the Archives is formed by giving the latter a right of inspection, not only regarding the disposal of records, but, in principle, of all records management functions and operations involved with current and semi-current records. Inspection is useless without a provision for sanctions as an ultimate remedy.

5.11 Records centres (see pare. 100-102)

203. There should be legislative authorisation, where possible, enabling a National Archives to establish and operate records centres if circumstances demand such action; power to compel government departments and agencies to transfer non-current records to a records centre is also necessary (NG pare. 133).

5.12 Appraisal and destruction (see pare. 103-115)

204. The law should oblige all bodies producing public records not to destroy without account being taken of long-term research values, and the National Archives must have responsibility for ensuring that such values are identified and that records of research interest are preserved (NG pare. 132).

5.13 Transfer (see pare. 116-131)

205. The main statutory requirement for transfer is that public records selected for permanent preservation (which have been in existence for more than a prescribed number of years) should be transferred to the National Archives (NG pare. 134).

5.14 Deposit of official publications (see pare. 132-136)

206. Prescription of legal deposit of books and other printed publications does not belong to the domain of archival legislation. However, a record copy of every government publication should be deposited in National Archives, whether or not a legal deposit with the National Library exists.

5.15 Preservation (see pare. 137-142)

207. The first responsibility of the National Archives, and indeed of any archival institution, is the safe custody in suitable buildings and environmental conditions of all archives. Legislation should authorise the National Archives to provide for facilities for the repair and conservation of archival material (NG pare. 148). The regulations should lay down security measures.

5.16 Arrangement and description (see pare. 143-149)

208. Legislation should ensure that all public records are kept under sufficient administrative and intellectual control. One of the functions of any archives service should be the arrangement and classification of archives according to accepted archival principles and methods and the publication of guides, inventories and other finding aids.

5.17 Access (see pare. 150-168)

209. The right of access to public records, subject to prescribed conditions intended to protect their safe custody and physical condition, should be clearly stated in archival legislation. The most important aspect of this matter for consideration is the term of years after the creation of documents during which public records should normally be kept closed and are not available for research. In most countries consideration of this question has led to the general opening of records when they are more than 25 or 30 years old. Whatever closure period is adopted, it is necessary to provide machinery for giving access to some documents after shorter or longer periods by making general exceptions, and to allow access to closed records by individual research workers in exceptional cases (NG pare. 140-142).

5.18 Reprography (see pare. 169-176).

210. It is desirable that archival legislation provide that there is no breach in copyright when any document, open to public inspection and in the custody of the National Archives or other public archives service, is copied or published (NG pare. 147).

211. It may be considered necessary to include in archival legislation a provision that the legal validity of records in government departments or other organisations is not affected by their transfer to the National Archives. Legislation should also provide that the National Archives or other archival authority lawfully holding such records may certify any copies of documents (NG pare. 146).

5.19 Personnel (see pare. 177- 182)

212. It is essential that the law provides a basis for detailed regulations on the recruitment, appointment, promotion, professional qualifications, and training of archives staff.

5.20 Enforcement (see pare. 187-186)

213. Apart from special penal provisions enforcing the right of inspection, the inalienability of public archives, the protection and control of the export of private archives and the professional secrecy of archivists and records managers, legislation should include a general clause prohibiting the damage, mutilation, destruction, and removal from custody of public archives.

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