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7. Legislative authority

7.1. Archival legislation
7.2. Legislative requirements
7.3. Placement of institutions


7.1. Archival legislation

Archival institutions are service organisations. whose existence stems from the need to cater for records and archives that have been generated. Whether at federal, central government or local authority level, these organisms comprise a number of units each of which has its own authority within certain defined limits. The archival institution is therefore external to these units in so far as it is not a component of, or particular to any one of them. Being an outsider the archival institution therefore requires a defined basis for providing its services.

In most countries there are Acts of Parliament or decrees that provide the legislative authority required for these services to operate. These acts and decrees define the rights of the archival institutions and provide it with the authorisation necessary for it to carry out its functions. The work of the archival institutions is necessarily determined by the powers so conferred. Various studies and comparisons have been made of the legislations that exist in various countries, and the general provisions of the legislations include:

7.1.1 A definition of the materials that constitute records and archives with distinctions being made between public records and public archives and perhaps between these and private records and archives.

7.1.2 A definition of the powers of the institution in respect of: The ability to inspect defined records and archives. The supervision of the welfare of the records and archives. The transfer of records from the creating agencies to the archival institution.

7.1.3 The rights of individuals and citizens in accessing records and archives.

7.2. Legislative requirements

Archival institutions need legislative authority in order to function effectively. At the minimum they require the right and ability to inspect records whilst they are still held by the creating agencies. They also require the right and ability where necessary to compel transfer as they see fit of certain records and archives to the archival institution. This right is made necessary by the fact that where the mismanagement of records and archives is identified, where the records and archives are clearly in danger or where the records and archives would benefit from transfer then transfer must be compelled even against the wishes of those who would want to retain them further in their departments and ministries. In the responses received forty one institutions said that they had the power to compel transfer against twenty four who did not have this capability.

The destruction of records should be controlled by the archival institution. This is necessary to ensure that no records with archival value are disposed of before appropriate considerations and appraisal processes have been applied. It is pleasing to note that fifty eight institutions control the destruction of records while only nine have no control over the destruction of the records. This control however must be viewed against the realities of the difficulties of imposing this control and perhaps the most accurate assessment was that made by Botswana National Archives which noted that while the legislation says that records cannot be destroyed without reference to the National Archives the actual situation is different.

Legislation must also provide mechanisms for preventing the export of archives. This is especially relevant in developing countries or in former colonial territories where significant losses have occurred.

Since the legislation determines the capability of the archival institutions to perform their duties properly, the adequacy of the legislative powers which archival institutions have is very important. It is pleasing to note that the majority of archival institutions feel that they have adequate legislative authority. Forty five countries felt that their legislative authority was sufficient while twenty six felt that it was insufficient.

The legislation that an institution operates under must reflect the needs of that institution at that moment. There is a need for the constant adjustment of the legislation. While nineteen institutions were operating under legislation passed in the period between 1980 and 1989 it was also clear that many others were operating under laws that had been passed a long time ago.

Period legislation enacted Number of Institutions
1980-1989 19
1970-1979 14
1960-1969 14
1950-1959 6
1940-1949 1
Pre-1940 3

It was significant that Northern Ireland was operating under legislation passed in 1923, the Scottish Record Office under an Act of 1937 and Ecuador under a decree of 1938. Also interesting was that some archivists were unable to determine the legislation under which they operated and one answer merely said "Act of .....". Dominica did not have any legislation.

7.3. Placement of institutions

The operations of an archival institution are determined by its placement. For an archival institution to function effectively it needs to be in a ministry that is in harmony with its activities. a ministry which is able to facilitate the archival operations and which can enforce any requirements over the other ministries. Making comparisons of placings is rather difficult because the designation of ministries differs from country to country and there tends to be different combinations of functions. In logging the responses below the predominant ministry is the one that was considered. Hence while in the responses, Culture and Tourism, Culture and Sports, Youth, Sports and Culture were mentioned, Culture was taken as the predominant ministerial element under which the institution fell.

Ministry Number of Institutions
Culture 27
President/Prime Minister 15
Education 9
Interior/Internal 5
Arts 3
Justice 2
Information 2
Natural Resources/Environment 2
Communications 2
Community Development 1
Administrative Services 1

It is significant that so many institutions should be under the Ministries of Culture or Education. To a certain extent this placement has historical roots where archives were considered as a cultural activity because of their place in history and historical research. There is no question that archives still have a paramount value as a component of a nation's cultural heritage but archives are increasingly becoming the by-product of a long process in which other considerations are more paramount. The involvement of archival institutions in the management of current and semi-current records is increasing and gradually taking up a great deal of the energies and resources of many institutions. This involvement is making it necessary to reconsider the placement of archival institutions and to demand their transfer from culturally oriented ministries. The number of archival institutions that fall directly under the President or Prime Minister is relatively high supporting this gradual shift to a position where archival institutions need the backing of the highest authority in order to carry out their mandate and to be seen to be above or across the government service organisation rather than just be seen as a segment or component of one ministry only. Where, for instance, the archival institution falls under the Ministry of Arts, and even Fine Arts for that matter, other ministries cannot see the relevance when the archival institution seeks access to their records and tries to impose controls for the better management of the records.

While sixty of the institutions were satisfied with their placement and only nine were not, it is perhaps time to seriously review the placement of archival institutions. As long as archival institutions continue to be identified primarily as cultural organs then they will in the competition for the allocation of scarce resources continue to be given the low priority that cultural activities generally receive. It is not accidental that nineteen of the institutions felt that they received low budget priority. Significant also was that five institutions felt that they had insufficient legal authority, that their placement was wrong' that their budget allocation was unfavourable and that they had low priority. These were the National Library and Archives Service of Ethiopia, the Brunei National Archives, the Provincial archives of Alberta in Canada, the National Archives Division of Trinidad and Tobago and the National Archives of Zambia. Those that indicated that placement was wrong generally wanted to be placed under a ministry or agency with government wide responsibility. In this respect perhaps the Australian Archives that fall under the Ministry of Administrative Services would provide a useful example as does the National Archives and Records Administration of the United States of America which is an independent agency in the Executive Branch of the Government.

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