Restrictions on access to documents in Europe and Russia: Historical formation and todaySummary In democratic states, access to official documents is generally guaranteed by the constitution. Free access by the public to official documents proceeds from the principle that the activity of administration is transparent, and under public control. Access to documents is one of the rights and freedoms of citizens, and one of the conditions for the free exchange of ideas in a democratic state. Public access to archival documents has been stipulated by law in all member states of the European Union. These contemporary fundamental principles, however, have not always been in effect, and even today exceptions have been enacted, which on occasion have become quite extensive. Restrictions are stipulated for access to administrative documents, utilising a general delay or closure period, or by stipulating special closure periods for various categories of documents. Such restrictive regulations, which are in force in all European countries, restrict access in order to protect the interests of persons, authorities, enterprises or the state. Many restrictions to the access of documents are not due to archival laws, but to other legal acts that are not always in accordance with archival laws. For the authors of the present book, the main issue for research was the association of restrictions on access with other conditions — with the general attitudes of society, the central authority of the state, the methodology of historical research and the general development of archival science. In postulating the problem, it was initially decided that the topic as a whole needed to be examined in a much more systematic manner than had been done previously. Since the topic has previously been addressed only on a limited scale, emphasis was placed on various cases — utilising their description, analysis and comparison as opportunities for more extensive generalisations. The research project was carried out within the framework of Grant No. 5560 of the Estonian Science Fund Foundation, «Restrictions on access to documents in Europe, Estonia and Russia: Historical formation and typology», 2003–2004. Examining restrictions on access with the help of a number of different approaches, and using analysis of various cases, proved to be fruitful in current conditions where the problem has not yet been thoroughly examined. The chapter authored by Jaak Valge, titled «Societal attitudes, historical research and restrictions on access to documents from a past perspective» examined the historical formation of restrictions from ancient times to today, emphasising, as factors of influence, changes in societal attitudes and trends in the methodology of historical writing. The problem of restrictions on access in archives is a problem of the modern, post-French Revolution society. Up until the end of the 18th century, this did not exist in its modern form. The right of those controlling archives or libraries of manuscripts to permit or forbid researchers into archives or libraries was silently considered self-evident. Since the historical writings of the time were not directly associated with archives, and the relationship between the state authority and the subjects did not presume that there checks on the authority, the lack of access also did not have the important significance as it has today. As of the beginning of the 19th century, free access gradually became accepted in the western world as a progressive principle, but less so in practice. According to Ranke’s theory of history, which became dominant in the second half of the 19th century, archival documents are of vital importance to historians. Therefore, the aim of the progressives was to exclude restrictions on access. Ranke’s paradigm lasted for a long time and the philosophical-intellectual judgement regarding restrictions was clear. Regardless of the form, these were to be considered negative and as obstacles to creativity in research. The time after World War II was a new period. In general, the years 1945–1980 characterise the rapid liberalisation of access to western archives. The principle of access was not doubted in democratic states, and administrative practice was liberalised, standardised and made transparent. Western societies became more democratic, and the gaps between living standards in both the western societies themselves as well as between rich and poor countries were reduced. The breadth of historical research widened suddenly. Sources that had previously been considered of little importance also rose to become the centre of attention. The so-called ordinary citizen was now also treated as a client for the archives. This means that the situation for opening archives was extraordinarily favourable. More precise regulations were stipulated, and closure periods were shortened. The concept of the protection of personal privacy developed. The 1980s can be treated as the start of a new period in the formation of restrictions on access. The changes were mainly in regard to the protection of personal privacy. This shift did not begin in the archival sphere. Privacy became increasingly important for society in general, since there was a sudden strengthening of individualism. A neo-liberal, consumer ideology started to dominate, as well as post-modern value judgements. The economic and also social development of countries around the world again moved apart — the gap between rich and poor countries, and also between the rich and poor populations of rich countries, began to again increase. One output of the growth of individualism, and disappointment with progressiveness, was also the protection of personal privacy. The need for the protection of personal privacy was made more urgent by the development of information technology in particular. There was also a change in historical research. One part of historical writings changed and degenerated, together with the new advance of limitless relativism, into the entertainment or ideology industry. As a result, the importance of archival documents was reduced — after all, archival documents are more likely to interfere with the writing of fairy tales. Regulations affecting personal privacy became increasingly strict in the non-archival sphere. Delicate personal details are considered to be political views, religious and worldview beliefs, and data describing ethnic background and race. Restrictions on access that have been initiated outside the world of archives have increasingly started to affect the archives. In order to obtain an overview of the nature of the restrictions on access in European countries today, a questionnaire was organised from spring to autumn in 2004 for the central archives of the European states. With the aim of avoiding formal responses á la «according to the law ...», which had been the result of surveys carried out previously by other countries, specific questions were asked. For example, is there access to central bank departmental reports from 1985, is it possible to read the court cases for divorces in 1975, can researchers access persons’ medical history files and census records from the first third of the 20th century. On the basis of current legal acts, analyses and the survey, Birgit Kibal compiled the chapter titled «Restrictions on ccess to documents in Europe today». Concepts, such as protection of personal data, the right to information and public information, are well-established today in the legislation of old and new member states of the European Union. Making these terms public in everyday life, however, and defining them according to common understandings, has taken place relatively recently — mainly since the 1990s. Ensuring access to public information, on the one hand, and the protection of personal privacy, on the other hand, has resulted in a situation for archives where legislation is being viewed anew on both the national and international level. Most prominent amongst the latter are the legal acts of the European Union, and in particular, as regards the current context, two recommendations regarding restrictions on access from 2000 and 2002. The first of these recommends that all public archives be opened without special restrictions. Exceptions to this rule are protection of information pertaining to the private life of individuals and considerable public interest, e.g. protection of state security. All exceptions to the limited closure period, which pertain to the reduction or increase of a period, must have a legislative basis. The responsibility for each closure or openness lies with the institution that has created the document or carries out the supervision of the document, if the national legislation has not given responsibility to a specific archive. The second recommendation by the European Union, which regulates the right of access to public documents under the control of the creators of archives, presents generally the same positions: access to public documents must be ensured everywhere — of the exceptions, the most important are national security, personal privacy and business interests. Since there are many documents in archives with personal information, archives must mainly deal with the protection of personal data or ensuring human rights. For this purpose, the areas for restrictions on access have been stipulated in the laws on personal data protection, and the closure periods have been stipulated in laws on archives. In the everyday operation of archives, regulation of the right to access means active dialogue with society/the client. In deciding on the disclosure of information, and its restriction, the resulting advantages and disadvantages for society and for the individual must be weighed up. As a result of the survey that was carried out in European archives in 2004, it is possible to conclude that the principles for restrictions on access for documents, as stipulated in law, are generally similar for all countries — both in the definition of restricted information as for the duration of periods of restriction. In practice, however, there are many differences. In some cases the basis is also different when the period of restriction is associated with the life of either the person or the document. The differences became particularly apparent in the issues of disclosing patient medical history files and court cases. To summarise, the following conclusions could be drawn from the result of the analysis of the access restrictions being practised in European archives:
Support was also provided for one of the working hypotheses of the Grant Project — access regulations in European Union countries have little standardisation, despite the common principles. Furthermore — it came as a surprise that the respondents (who were both researchers as well as those responsible for this field) sometimes did not know themselves to what they restrict access and on what basis. From the standpoint of the survey, these were not considered to be «wrong answers», since it was indeed the actual situation that was being studied. The reason for the weak points that became apparent from the result of the survey, and the resulting responses with dubious value, was primarily the varying background and specialties of the responding institutions (the difference between archives holding historical documentation and archives preserving modern documents that have been created during the last twenty to fifty years) and the varying work experience of the responding officials. There were clear examples of countries which, in addition to an exact description of the legislative background, also analysed the relationship of archives with other institutions, and used pertinent examples to illustrate practical experience. In the chapter titled «Restrictions on access to documents in the Estonian SSR», written by Priit Pirsko, the conclusion was drawn that the conditions for access were derived from the legal-theoretical nature of the entire soviet-era archival system, which comprised the absolute control of the executive authority over the archival system, a theory of archival science submerged in ideology, and (over)centralisation. The use of documents by citizens was not a general rule, but an exception. Restrictions on access were general, and it is more precise to speak about cases of access, since these involved a minority of society. Whereas in a democratic society (during the second half of the 20th century), access to the documentary heritage held in public archives was one of the premises of society, in Soviet Estonia the use of archives could be characterised as the prerogative of a minority. In this context, it would be difficult to speak of public archives in the same way as of a public library or museum. For professional researchers, if they were capable of making the necessary ideological concessions in defining the research topic and in their research work, access to archives was still considerably simpler than for an ordinary citizen. For the latter, it was not possible de iure, and practically impossible de facto. The number one topic today for access to archives — the protection of personal data — was essentially not an issue in the soviet period. The regulations do show that it was theoretically possible for personal data be considered somewhat delicate, but only for living persons. There were no regulations, however, for determining delicate data, and no references to any related problems whatsoever in the archives. A person, as a being with delicate and private characteristics, was not an issue in the soviet collectivist societal analysis. It must be admitted, however, that it was only in the 1980s that restrictions on access to documents containing delicate personal data became the rule also in Western Europe and North America — at the time when soviet society, which by nature was conservative and inert, was already in its death throes. To a certain degree, conditions for access changed in unison with western countries. Access opened up to a substantial degree in the second half of the 1950s, and, in principle, restrictions disappeared in the final years of the soviet regime. In both cases, it was a case of change in society as a whole, a weakening of the repressive regime, not an archival-theoretic reassessment. Therefore, the archival-professional view of archival usage conditions affected only marginal technical details, and all else was decided in the corridors concerned with the spread and supervision of communist ideology — external to the archival discourse. Priit Pirsko has determined the period for archival development in the ESSR as consisting of four stages. The years 1940–1941 denote the overturning of the priorities and logic of the previous archival operations, the disarrangement of archives as a result of the acceptance from institutions of a large number of unorganised and unassessed archives, the creation of secret collections and departments, the beginning of operative-Chekist campaigns in the archives, and the first steps towards restrictions on access. The period from 1944 to the mid-1950s was the time when the nature of archives changed. An additional basic task of the central archives was responding to the enquiries being lodged by security institutions, and the systematic checking of the content of the archives with the objective of finding out the names of so-called enemies of the people and counter-revolutionaries. By the beginning of the 1950s, the management of Estonian archives was completely russified, as well as a part of the everyday operation. The archival tripod of collection-preservation-usage had its usage «leg» knocked out from under it. In its place, a support leg was screwed in, comprising of surveillance that suited the repressive bodies. The previous societal nature of archives underwent a 180-degree change of direction. The peak of the restrictions on access is marked by a 1948 circular issued by the archival department of the Estonian SSR’s Ministry of the Interior, which essentially did not only hinder access to the content of archives, but actually forbad the use of archival documents for civilian purposes by individuals. The period from the mid-1950s to the start of the 1970s was the time in Estonia of the relatively fastest archival progress. It was a time when more or less normal archiving was restored, a period of growth and recovery. Archives were disengaged from the planning system for determining and catching enemies of the people, which had previously forced them to work in unison with the soviet security bodies. The use of archives by historical researchers became more open, but did not normalise completely. The legal turning point was the regulation issued by USSR Council of Ministers of 27 April 1956. This raised the issue of the future use of archival documents that had been declared secret. It noted that part of the classified documents in archives had been declared secret without justification. The regulation authorised partial declassification but certainly not for all archival documents. The soviet fog for archival documents did not clear once the 1956 entered into force, but it did become less dense, and the number of taboo topics reduced but did not disappear. Already in 1959, the unease felt by the central authorities could be seen regarding the information that had become public. On an intellectual level, the most liberal concept for access was reached at the end of the period, in 1968. However, the 1970s — the beginning of the new period — proved that the breakthrough had failed. The doors remained partially open, in a position brought about by the freer winds of the 1950s. As regarding access, they were stuck in the same position until the years 1987–1988. Even in 1987, when the process of «declassifying» began, in the State Archives alone there were 664 secret collections, or a full 16% of the contents of the archives. In addition, various restrictions on access were applied to 8% of the documents in the general. An important conclusion to be drawn is that the soviet archival legal acts were stricter than the actual practice as regards restrictions on access. It can also be stated that access to the Estonian SSR archives was simpler than access to soviet archives in general. In the Estonian context, it must be admitted that there was a more liberal attitude to users of archives in Tartu than there was in Tallinn, where most of the special collections were concentrated. It was paradoxical that it was the hardest for a researcher to access the fundamental documents of soviet society itself — the archives of the Estonian Communist Party, since this presumed, in addition to holding Party membership, permission from the ECP Central Committee and approval from the KGB. In the chapter titled «Restrictions on access in the Soviet Union and Russia», where Tõnu Tannberg analyses the restrictions, he claims that the point of departure for the formation of soviet archival science was the order adopted in June 1918 regarding the reorganisation of the archival system. The further development of archival science moved in the direction of institutional centralisation, which meant the complete subordination of the archival system to a higher authority. These features — centralisation and subordination to a higher authority — continued to characterise the soviet archival system until the collapse of the Soviet Union in 1991, and they also directly affected access to documents. The principal of archival openness, which was declared in 1918 (to permit all researchers to use the archives), was already abandoned within a few years in favour of the political use of archives. The instigator of the new course was M. Pokrovski, who forcefully subordinated the archives into the service of «class interests». He was convinced that attention must be concentrated solely on «revolutionary documents» that are of interest in relation to the «current moment» — i.e. to justify the seizing of power by the Bolsheviks. From the standpoint of historical research, such an approach meant the use of only selected sources, classifying documentation that was «dangerous» to the regime in power, keeping researchers away from the archives, the partial destruction of archival documents (so-called waste-paper campaigns), the ideologisation of archival theory and raising a «new generation» of archivists. As regards historical research, archives were marginalised. In 1931, Stalin announced that those who attempt to study the history of Bolshevikism on the basis of archival sources, are merely «archival rats». The politicalisation of archives also meant the increasing use of the documentation being held in archives for internal political battles. This process resulted in a «logical» solution, with the transfer of the archival system to the jurisdiction of the USSR People’s Commissariat for Internal Affairs (NKVD) in 1938. This meant the archival system becoming part of the bureaucracy, the use of documents for primarily «operative-Chekist» aims (the creation of the so-called «political colouring» file, etc), the complete classification of archives and the continued destruction of «unnecessary» documents (in 1945, 8.7 million items were allocated for destruction, and 87.8 million items in 1959). The «thaw» of the 1950s had only a marginal effect on the archival system. During the second half of the 1950s, however, there was an extension of access possibilities (very limited declassification, publication of documents, compilation of archival reference books, etc), but only for a brief period — only up until the start of the 1960s, when the previous situation was essentially restored. The change in the jurisdiction of the archival system also did not bring about fundamental change (in 1960, the archival system was subordinated to the USSR Council of Ministers), neither did the adoption of new regulatory documents. A large part of archival sources — the documents from the so-called party archives — did not even belong to the state archival system and were inaccessible to most researchers. The «ceremonial marking time» of the soviet archival system continued in conditions of deepening stagnation up until the mid-1980s. The situation improved in the second half of the 1980s, when the issue of archival «openness» was put on the agenda due to public pressure. A controlled declassification of archival documents was begun («party declassification»), as well as the publication of archival sources, and the number of users of archives grew noticeably. The collapse of the Soviet Union in 1991 brought about substantial changes in archival science: party archives were taken over by the state archival system, an extensive declassification was initiated, work began on developing the principles for access and the creation of a new legislative basis, which was finalised in 1993 with the adoption of the basic laws for archives. This period of «opening up» for archives (1991–1993) also meant the continued increase in the numbers of users of archives, the increase in publications, but also the so-called archival business (ensuring access through payment). The centralisation of the archival system remained in place. The law on state secrets that was adopted in 1993 made access to documents more difficult. An inter-institutional commission was created to work on the declassification of archival documents. In practise, this meant a substantial slowing down in the rate of declassification, and at times, it coming to a complete halt, and an increase in the influence of the bureaucracy. Although the publication of archival information has continued, and archival reference material is still being produced, the development of the Russian archival system has moved towards dominance for lack of access, which has also been confirmed by the adoption of a new archival law in 2004. The pre-1991 situation, therefore, is in the process of being partially restored. In general, the Russian archival system has always been most directly associated with political power. The experience of Russia in the 20th and 21st centuries has quite clearly demonstrated that archives have been the most open in the periods following a change in the political regime, but these periods have been of relatively short duration. Consolidation of a new regime, and rejection of democratic principles, has also been very obviously accompanied by restrictions on access to archives. To summarise, it is obvious that the emphasis of restrictions on access in the coming years will be concentrated on the protection of personal privacy. A noticeable trend is an extension in the meaning of what is deemed to be a part of private life. The relevant regulations have reached the archives after a certain time delay, and these have been implemented in western archives relatively sensibly to date; for example, access to information containing data regarding the political convictions or even private lives of historic persons is generally permitted, although these could fall under the relevant temporal restrictions. With the continuation of current trends, however, the restrictions will undoubtedly become stricter. So the fundamental question is: in which direction will societal attitudes tend to veer. This probably depends to a great degree on the processes associated with the current «anti-terrorism» struggle. The greater need to keep track of the population, as an instrument for the «anti-terrorism» struggle, may turn the concept of privacy on its head, and it therefore cannot be excluded that changes will take place, but in an opposite direction. However, restrictions on access, as motivated by state interest, have generally been liberalised after political upheavals — after the French Revolution, the two world wars, and most recently after the collapse of the eastern bloc. After a while, however, the liberalisation has ceased. This also applies in the recent decades. The closing of Russian archives started in the mid-1990s. The other category of restrictions on access, however, which is based on the protection of private lives, has continued to grow since the 1980s, although it has been implemented in archives for only a decade or so. It could therefore be said that the freest opportunity for studying the past was up until the mid-1990s. From the standpoint of historical research, it would undoubtedly be better to have a definite closure period (after which all the documents would be open) rather than a selective classification of documents. The latter could result in a distortion of the view of the past due to the selective use of sources being made possible. In principle, it would be best to have as straightforward regulations as possible, with as few exceptions as possible in the document series. The question as to whether there have been misuses regarding personal data by historians and/or researchers can mostly be answered in the negative. There are very few such cases that are known, whereas there have been numerous known misuses by politicians and journalists. In the case of a general information cut-off it is not just research that suffers but society in general. In conclusion, it became apparent that the nature of restrictions on access is primarily associated with societal attitudes, including with the nature of the political regime, with ideas and culture, and less with the independent development of archival science. |