Archives and Records

Front matter

Archives and Records

Privacy, Personality Rights, and Access

Mikuláš Ctvrtnik palgreve macmillan

Contents

The Right to Be Forgotten Versus the Right to Memory, the Right to Know Model of Four Categories of the Right to Be Forgotten:

Temporary Versus Permanent Right to Be Forgotten—Data

Anonymisation and Pseudonymisation

Index

217 228 233

241 245

ABOUT THE AUTHOR

Mikuláš Ctvrtník, Ph.D., is an assistant professor in the Department of Archival Science and Auxiliary Sciences of History at the Faculty of Arts, Jan Evangelista Purkyné University in Usti nad Labem, Czech Republic, and a visiting assistant professor at the Charles University in Prague and head of the Department of Public Administration Archives in the State Regional Archives, Prague, Czech Republic. He holds a Ph.D. from Charles University, Prague, specialising in theory and methodology of history. In his research he focuses on archival science, theory, and methodology of history and historiography, and governance issues with particular emphasis on the analysis of public administration records and on records management. He is the author of several monographs; in Germany, he wrote the book Geschichte der Geschichtswissenschaft: Der tschechische Historiker Zdenek Kalista und die Tradition der deutschen Geistesgeschichte (Diplomica Verlag. Hamburg 2010). His latest book deals with the topic of intellectual history in the context of European historiography of the nineteenth and twentieth centuries (Argo. Prague 2019).

xvii

ECHR GDPR

FOIA

NARA

CADA

ICO NCTR

NS-Archiv

ABBREVIATIONS

European Court of Human Rights

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

1. Freedom of Information Act of 4 July 1966, 5 United States Code $ 552; 2. Freedom of Information Act of 30 November 2000. Ch. 36

National Archives and Records Administration

Commission d'accés aux documents administratifs [Committee on Access to Administrative Documents]

Information Commissioner's Office

National Centre for Truth and Reconciliation

Archive of National Socialism xix

List OF TABLES

Table 6.1 Percentage of archives preserved in relation to records destroyed 152 Table 6.2 Increase in the volume of archival material in selected archives in recent decades 153 xxi

Introduction

“Do the interests of the living outweigh those of the dead? ... Does the privacy of living persons override the importance of historical research and does the right of access give way to the right to forget?”?

(Eric Ketelaar, Archivalization and Archiving)

“Commit nothing to paper, and certainly not to a computer or a cell phone. Keep it in your head. It’s the only private place we have left.”? (Frederick Forsyth, The Cobra)

“To begin, then, at the beginning, I was serving at that time on the staff of a division commander whose name I shall not disclose, for I am relating facts, and the person upon whom they bear hardest may have surviving relatives who would not care to have him traced.”

(Ambrose Bierce, The Major’s Tale)

! Ketelaar, E. (1998, 23 October). Archivalization and archiving. Unpublished inaugural address as Chair of Archivistics, University of Amsterdam, p. 6. As cited In V. Harris, Knowing right from wrong: the archivist and the protection of people's rights. Janus, 1999.], 32-38, here p. 33.

®Bierce, A. (1890, 5 January). Tbe Majors Tale. First published in the San Francisco Examiner as: A Practical Joke: Major Broadwood Recalls the Heroic Past.

O The Author(s) 2023 1 M. Ctvrtník, Archives and Records, https://doi.org/10.1007/978-3-031-18667-7 1

The mission of archives and records management is not just to collect and store materials and information. Their purpose is also to make them accessible. Archives are one of the most important places where the right of a free society to access to information, the right to know and, with it, the freedom of expression are exercised. However, both the collection and preservation of information, including archiving, and the opening of access to it, enter the area of the protection of personality rights, privacy, and personal data, that is, one of the most complex areas of archiving and records management, in a significant way. This is also due to the fact that at the very heart of the issue is the fundamental tension: On the one hand, the collected and preserved public records and archives, including a wide range of personal and sensitive data, serve a plethora of public interests and the exercise of citizens’ rights; on the other hand, they carry an ever-present latent risk of potential misuse, including very serious forms with serious implications for people's lives and rights. This can be generally expressed in the form of a paradox: By sharing data about themselves, whether to the state, its authorities, private entities, and other people, individuals exercise and protect their rights, including the protection of their personality rights and privacy. The same act, however, puts them at risk of misuse. Yet, if an individual did not share their data, they would not be able to exercise their rights at all.

The protection of privacy, personality, and personal data in archives represents one of the most complicated domains of the archival sector. This is due to its initial situation. On the one hand, archives containing a vast range of personal data represent important tools for exercising citizens’ rights, from economic rights (archives are important proofs of ownership, etc.) to fundamental human rights, as characteristically shown—providing one example for all—by the archives of security forces during the period of totalitarian regimes, which serve to administer justice to victims and perpetrators in the period after the end of the dictatorial regimes of the respective societies. On the other hand, personal data such as the content of the same archives may be grossly misused and have a very serious impact on the lives of people concerned in the archives. In a similar context, Eric Ketelaar made an excellent point that it is therefore “so difficult to keep the right balance between, on the one hand, the requirement to destroy personal data when they have served their primary purpose, including that of serving the legal rights of the data subjects, and, on the other hand, the possibility that the files might get a new meaning and purpose in the future” .*

Concisely, the same document may in one situation be used to assert legal and democratic rights, often after a very long time and often in quite different contexts and for quite different purposes than those for which the document was originally created, for example, during restitution, for inheritance claims, but also for the purposes of judicial rehabilitation, punishment of perpetrators of, for example, political crimes, crimes against humanity, and so on. On the other hand, the same document in a different situation can lead to considerable harm to a person and their fundamental rights and freedoms. There is much historical evidence to support Christian Keitel’s statement: “Every totalitarianism loves personal data”.° However, personal data may be misused even in societies perceived as democratic. I shall examine some examples in this book.

Access to public records and archives as one of the concrete manifestations of the general and usually constitutionally guaranteed freedom of expression and information and the right to know and, on the other hand, the protection of personality rights and privacy in archiving and records management form an inseparable pair of ‘communicating vessels? and have become the subject of this book. Their connection is determined first by the fact that archiving and records management cannot be separated. Archival management takes over from records management and records keeping at the stage when records are still managed and preserved by their creators, be they public institutions, private entities, natural persons, families, associations, and so on. However, a small part of the records will one day become archives and will continue to be preserved and maintained in the respective archives.

The inseparability is also determined on the level of the relationship between data protection on the one hand and access to data on the other, in the specific aspect of working with archival sources. No functioning democracy and rule of law could exist without the freedom of expression, the right of access to information, the right to know. After all, open access

* Ketelaar, E. (2005). Recordkeeping and Societal Power. In S. McKemmish, M. Piggott, B. Reed, F. Upward (Eds.), Archives: Recordkeeping in Society (pp. 277-298). Charles Sturt University, p. 285.

5 Keitel, Ch. (2019). Archivcamp “Volkszählung 2021 und Rolle der digitalen Archive". In 23. Tagung des Arbeitskreises Archivierung von Unterlagen aus digitalen Systemen, National Archives (Prague). https://www.nacr.cz/wp-content/uploads/2019/KnihaAUDS_e-kniha_ DEF.pdf, p. 167.

to archives is one of the pillars of the Universal Declaration on Archives developed by the International Council on Archives and adopted by UNESCO in 2011. In addition to knowledge, its aim should also be to promote democracy. The role of archives in this regard becomes all the more important the closer to the truth is the recent warning by a group of liberal intellectuals, authors, and public figures who, in their *A Letter on Justice and Open Debate", expressed their belief that “The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more and more constricted”.” The signatories of the Letter observe a growing trend throughout our culture today to restrict freedom of speech, open debate, and tolerance of differing opinions.

The accessibility of information embodied in public archives and records and physically stored in public archives, as well as in other institutions managing records of various kinds, constitutes one of the fundamental pillars of the exercise of the freedom of expression and information. Alas, this right is not a universally applicable principle. As Eric Ketelaar succinctly pointed out in one of his interviews: *There is no natural law stating that archives should be accessible to anyone. That is something that is only 200 years old. What most archivists do not realise is that availability, accountability, findability, etc., are not universal and natural laws or principles. It is the law, yes, but the law is only an expression of what society at a particular point in time believes to be right or wrong."?

Archival materials and public records preserved in archives—unlike books and other forms of multiplied and recycled data in today's world— have one extremely important aspect: their uniqueness and irreplaceability. The absolute majority of the content of archives consists of primary sources. Unlike secondary sources—typically published in some form— these sources are characterised by uniqueness, that is, they only exist in a single or several copies; although especially after 1945, the multiplication of records production increased enormously, manifesting, for example, in the creation of multiples of multiple copies of official records, which until

*'The Universal Declaration on Archives (2010). Endorsed by 36th Session of the General Conference of UNESCO Paris, 10 November 2011. Adopted at the General Assembly of ICA Oslo, September 2010. https:/ /www.ica.org/en/universal-declaration-archives

7A Letter on Justice and Open Debate. (2020, 7 July). Harper’s Magazine. https:// harpers.org /a-letter-on-justice-and-open-debate/

5 Glaudemans, A., Jonker, R., Smit, F. (2014). Beyond the traditional boundaries of archival theory. An interview with Eric Ketelaar. In F. Smit, A. Glaudemans, R. Jonker (Eds.), Archives in Liquid Times (pp. 294-305). Stichting Archiefpublicaties, p. 304.

a few decades ago were often produced in only one or at most two copies. To close the gate on such a unique source of information, often stored in a single archive, is to close access to it altogether.

Primary sources represent both the primary and the least mediated trace of the past. These are the materials that stood closest to a particular event or phenomenon and are only minimally reinterpreted by their future reporters. Very often, the creator did not even expect that his information output would one day be used as a source, for example, by researchers. This adds to the quality and value of such a primary source, which is in this sense figuratively speaking a “raw”, original, and *unprocessed" source of data. Adding this “rawness” and “unprocessed” form of information to the rarity and very often the uniqueness of primary sources, restricting access to such sources of information often means a catastrophic intervention leading to the elimination of the possibility of knowledge and the right to know.

This, however, also reveals the reverse side of the matter. Allegorically speaking, the high value of the primary source thus formed increases the price to be paid. This price is the high protection of the data that the source carries. The more the primary source represents material not originally intended for publication, material not intended for various future uses and in this respect unintended, the greater the urgency ofthe need to adequately protect the data contained therein, including personal data. This is significantly amplified by the fact that the persons concerned in archival records usually have no knowledge that data about them is being handled in the context of archiving and have no possibility to influence its future use and disclosure.

Let us look at the whole situation from the perspective of archival practice. Access to archives and information, together with archival processing and archival appraisal resulting in the selection of a very small number of records for, what archives believe will be, permanent preservation, are the three most important and robust domains of archival work. Access to archives is inextricably linked to the protection of the data they contain and, in particular, to the protection of data relating to the individual people concerned in the records in question. The issue of providing access to archives and the protection of their actors is implied by several formative constants framing the entire context; these constants need to be kept in mind when policies, strategies, as well as specific procedures for access to archives containing personal data are established. What are they?

l. Archives collect and provide access to material containing personal data or entering the protected area of privacy and personality rights in the absolute largest number of cases without the knowledge of those concerned. Itisa phenomenon that can be succinctly described by the phrase “without consent”, which was chosen as the title of her book by the distinguished author in the field of archival science, Heather MacNeil.’ This is interconnected with another constant:

2. Archives collect and provide access to records and the data they contain, including personal data, for fundamentally different purposes and motivations than those for which the records were created. In other words, the reasons that led to the creation of a record and the appearance of certain personal data in it were quite different from the reasons behind, first, its transfer to an archive, and second, the requests for access to this material by various groups of requestors— historians, genealogists, students, relatives, and many other private entities; apart from those, access to such material may also be requested for a variety of official purposes. Once again, their motivations are usually different from those that led to the creation of the data in question. I will give just one illustrative example: Minutes of the meetings of a municipal council are taken for the purpose of running the local government and the municipality. However, after a certain period of time, they can serve, for example, as evidence in an investigation of alleged corruption.

The crucial point from the perspective of personality and privacy protection is that the consultation and use of personal data in archives happens for fundamentally different purposes than those to which the data subject gave their implicit or explicit consent, if a consent had been given at all. The importance of this fact grows in those societies and their legal systems in which there is a strong awareness of the need to maintain the duty of confidentiality. A prime example of this is the United Kingdom and British common law, as well as societies and legal systems that follow the tradition of British common law, as is the case of Canada. It was a Canadian author Heather MacNeil who aptly described the core of this issue: “The invasion of privacy that results from the failure to obtain consent for a clearly different use of the information than the one origi-

? MacNeil, H. (1992). Without Consent. The Ethics of Disclosing Personal Information in Public Archives. Society of American Archivists, Scarecrow Press.

nally agreed to may be exacerbated by the breaking of a promise of confidentiality that was made, either explicitly or implicitly at the time the information was originally collected. The moral rule against breaking a promise of confidentiality is rooted in respect for individuals’ autonomy over information about themselves, as well as respect for the integrity and importance of the confidential relationship in which such information is shared.”!° Hence another constant:

3. A certain level of control over what information I share about myself, with whom, and for what purposes lies at the very heart of privacy and personality protection. This fact is inherent in most democratic societies, whether it manifests, among other things, in the principle of confidentiality, as it does in the British society and its common law, in Canada, Australia, and other countries, usually those where British law has made its mark, or in slightly different tools. Indeed, the recently approved EU General Data Protection Regulation (GDPR)!! embodies this very intention to allow citizens a much greater control over the flow of information about themselves. Such control also extends to the field archiving and the management of information archives maintain.

4. It is, however, still true that an individual's control over their information will forever remain limited. Individual citizens cannot be given an exclusive and unlimited right to manage information about themselves. This cannot be done in the exercise of public administration and the implementation of the entire set of obligations imposed on citizens by the state, as well as on the state and government itself, on public administration and public authorities in the performance of the necessary legal duties. This also applies to the field of archiving and records management, including the personal data contained in such records. Using the GDPR terminology, the “right to be forgotten" is not indefinite. But how are its boundaries constructed? What defines them against the right to know? There is no simple answer. The text of this book intends to, among other things, present certain means and actual options to find these bor-

!! Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). https://eur-lex.europa.eu/eli/reg/2016/679 /oj ders and to move along them, especially in the field of archiving in the public interest and records management.

Yet, this is far from being solely a legal problem. The legal system only mirrors reality in a formalised and limited manner. A person necessarily leaves traces of living their life. The hypothetical possibility of a complete “covering of the tracks” would have disastrous consequences for any society, as it would threaten to open the gates for violations of the law and basic rules of the functioning of the whole society; and just as disastrous would be the consequences of any Orwellian big-brother totalitarian surveillance of all life and every step of an individual and the whole society. A man's freedom and an open democratic society are only possible when they fall in a reasonable Aristotelian middle ground between these extremes. And the same applies to the field of archiving and archives, specifically to the area of access to archives and the protection of the personality and privacy of those who have become actors of public records and archives.

However, the search for the imaginary *right middle ground", for the right measure between restricting and providing access to information stored in archives, is at its deepest core shaped by the fact that the proverbial *explicit consent" to the collection and access to the data of those concerned has not been given. An alternative perspective can express the same in a different way: Unlike books, which were written and usually published with the clear intention of being read by the masses (the author wrote the text knowing it would reach many readers), in the case of public records and archival material the opposite is overwhelmingly true. Public records, some of which are subsequently preserved in public archives, were in the vast majority not created with the primary intention of being published. On the contrary, their creators and, even more significantly, their actors usually did not foresee that these records would one day be read, or rather read for the purposes and intentions of research. This does not mean that access to such materials should be restricted. Although originally spoken in a different context, we can take into account the words of distinguished French historian Arlette Farge: “The witness, the neighbor, the thief, the traitor, and the rebel never wanted to leave any written record, much less the one they ended up leaving”.'? But that is no reason why society should not have the right to know about the actions of

Farge, A. (2013). The allure of the archives. Yale University Press, p. 16.

at least some of them. From the perspective of a historian, Farge views this premise of the unmediated, unintended, and therefore all the more spontaneous and authentic testimony of archival historical sources as encountering not something dead, as it might at first seem, but rather life itself.

Access to archives and the related protection of the data they contain, in particular the protection of the individuals concerned, their personal data, personality and privacy rights, encompasses several levels, each of which represents a different overall perspective on the issue. Those levels are in particular:

l. Legal: Every country with a developed archival system stipulates a basic body of rules for access to archival material at the legislative level, usually by law and other implementing regulations, or in case law, especially in countries implementing the common law system. Apart from archive-specific legislation, the legislation regulating data protection and management in general, and the protection of personal data and privacy in particular, plays an increasingly important role.

2. Reality and practice of archiving in the public interest and of records management form another level: Although it is the legal system that lays down the basic rules and boundaries, the actual practice of archives and archiving in providing access to records and in data protection, its specifics, real limitations, issues and risks cannot be entirely covered by any one legal regulation and a purely legal analysis is not sufficient in such cases.

3. Ethical: Access to public records and archives and the protection of privacy, personality rights, and personal data in archival materials are substantially linked to the ethical aspects of the issue. Although both this book and archival practice itself are primarily concerned with the first two levels, the ethical and moral layer of meaning is always latently present and contributes to the formation of both the legal and archival practice. All three levels should also be considered and incorporated in the codes of ethics of archivists and of other professions working with records and archives. In 1996, International Council on Archives compiled a Code of Ethics that is still valid today and is currently available in 24 languages.!? Section 7 states: “Archivists should respect both access and privacy, and act within the boundaries of relevant legislation. Archivists should take care that corporate and personal privacy as well as national security are protected without destroying information, especially in the case of electronic records where updating and erasure are common practice. They must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials." This code of ethics fundamental for the whole field of international archiving thus mirrors the above phenomenon: When implementing privacy protection, managing and providing access to personal information, archivists shall bear in mind the *non-existent consent" of those concerned in the records. And the *without consent" phenomenon also reflects in other ethical codes that archivists follow.!*

The codes of ethics of other allied professions and disciplines also very often include the topic of privacy or the whole sphere of personality rights. For example, already in its Code of Professional Responsibility of 1992, the International Association of Records Managers and Administrators (ARMA International), sets this as one of the social principles for records and information managers: “Affirm that the collection, maintenance,

13 International Council on Archives. (1996). ICA Code of Ethics. Adopted by the General Assembly in its XIIIth session in Beijing (China) on 6 September 1996. All language versions available at https://www.ica.org/en/ica-code-ethics. Codes of ethics, or more generally the relationship between ethics and the profession of archivists or records managers, are also the subject of several professional texts. Cf., for example, Benedict, K. M. (2003). Ethics and the Archival Profession: Introduction and Case Studies. Society of American Archivists; also, for example, Cook, M. (2006). Professional ethics and practice in archives and records management in a human rights context. Journal of the Society of Archivists, 27(1), 1-15; Neazor, M. (2008). Recordkeeping Professional Ethics and their Application. Archivaria, 64 (April), 47-87. https:/ /archivaria.ca/index.php/archivaria/article/view/13146; Ketelaar, E. (1998, 3 October). Professional Ethics: The Moral Defence of the Archivist. Paper presented at the conference *Cyber, Hyper or Resolutely Jurassic? Archivists and the Millennium". University College Dublin.

14 Cf., for example, Society of American Archivists. Code of Ethics for Archivists. Approved by the SAA Council, February 2005; revised, January 2012 and August 2020 (https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics: “As appropriate and mandated by law, archivists place access restrictions on collections to ensure that privacy and confidentiality are maintained, particularly for individuals and groups who have had no voice or role in collections’ creation, retention, or public use”.

1 INTRODUCTION 1l distribution, and use of information about individuals is a privilege in trust: the right to privacy of all individuals must be both promoted and upheld”.!° In its Code of Ethics, they outline the requirement to “protect the privacy of individuals".!ó

Antoon de Baets, a distinguished historian focusing, among other things, on censorship and restricting access to historical sources, as well as on the ethics of work as a historian, has drafted a proposal for a “code of ethics for historians”.!” In it he also devotes significant space to freedom of expression and information (Article 4 in the draft Code). One of the proposed articles, however, also includes selection of information. According to him, historians “are entitled to demand that archival selection criteria (that is, criteria to preserve or destroy records) are not politically inspired and take due account of the historical interest".!? This book will discuss archival appraisal in Chap. 8. In the draft Code, Antoon de Baets also stresses that access to sources and archives should be as open and equal as possible for researchers, and that restrictions and exemptions should only be very rare and legal. On the other hand, de Baets, in his draft code of ethics for historians, referring to the International Covenant on Civil and Political Rights (1966), emphasises the protection of the dignity of and respect for those appearing in the sources: “historians shall respect the dignity of the living and the dead they study”. Historians, according to de Baets’ draft, have the right “not to disclose historical facts harming the privacy and reputation of persons, either living or dead".? In balancing the requirement for maximum openness of access to information and the right to know, on the one hand, and the legitimate demands for confidentiality on the other, Antoon de Baets states in his draft code that historians *should balance any nondisclosure against disclosure with a presumption in favour of disclosure" .??

15 Association of Records Managers and Administrators. (1992). The Code of Professional Responsibility. https://www.usna.edu/Users/cs/adina/teaching/it360/spring2013/ ethics/ARMA CodeOfProfessionalResponsibility.pdf

16 Association of Records Managers and Administrators. Code of Ethics. https://www. arma.org/page/IGP_Ethics#

17 De Baets, A. (2009). Responsible history. Berghahn Books, pp. 173-196, the Draft Code can be found on pp. 188-196.

15 De Baets, A. (2009). Responsible history, p. 191.

19 De Baets, A. (2009). Responsible history, pp. 192 and 193.

). 2 De Baets, A. (2009). Responsible history, p. 193.

This book will cover all the three levels of the issue, legal, practical, and ethical and will also mention the perspectives of access to public records and archives and the protection of privacy and personality rights of those concerned.

The very term “personality rights”, whose protection is embedded in a number of legal systems, is not straightforward. The concept of personality rights is based on the existence of persons in the sense of physical as well as spiritual and moral entities.” These rights include, among others, the right to physical liberty, privacy, identity, likeness and image, reputation, dignity, physical-psychological integrity, and also the right to life itself, sentience, and some other rights. While in the common law system “personality rights” include rather particular acts and torts protecting certain aspects of personality, such as misappropriation of name, breach of confidentiality, and so on, they have a stronger position in continental law. Moreover, some legal systems have introduced or are gradually introducing post-mortem personality protection, that is, the protection of at least some of the personality rights of a person at the time of and after their death. However, in cases when legal systems do establish post-mortem personality protection, they do not equate the protection of the personality rights of the living and the deceased. They usually gradually reduce the post-mortem protection of personality in proportion to the time that passed since the death of the person concerned. The book will touch on the topic of post-mortem personality protection in various contexts continuously in almost all chapters.

The concept of “privacy” is even more multi-layered. It is often shaped quite differently in different contexts, from legal, philosophical, ethical and moral, political, sociological, to anthropological, technological, security, and other contexts.?? At the level of legislation and case law, lawmakers and courts most often avoid any explicit definition of privacy. This book will analyse privacy in the context of archives, records management, archival practice, and data protection within archival practice. The concept of privacy is derived from the Latin term "privatus" meaning personal,