Dorota Drzewiecka, Katarzyna Pepłowska: Access to Polish archival materials - Legal dilemmas

Abstract:

Ensuring friendly, continuous and safe access to information resources and archival materials collected in archives to every citizen at any time and in any place is one of the basic tasks to be completed in the Polish archives. Only recently the Polish archives entered the digital era. That process creates new problems of legal nature to be solved by the archives. This article summarises the results of our research on Polish state law regarding Open Access. Our legal analysis identifies those areas that need to be amended especially now in the digital era. This is especially important since the archives, as government agencies, need to respect regulation on personal data protection, copyright, intellectual property protection and other rights related to the protection of privacy. Knowledge of these legal restrictions is essential for the function of digital archives. With this in mind, it becomes obvious that any project related to digitisation of archives cannot violate individual rights guaranteed. Since legal issues are complex and tedious, the article focuses on the practical side and is therefore based on case studies.

Introduction

Satisfying the information needs of society is the first goal mentioned in the National Archives Strategy for the Years 2010-2020.^[1] The broadly understood statutory obligation to make the information contained in the country's archival resource available is currently the subject of substantial debate. A main characteristic of state archives is that they provide access to materials, and as far as the public is concerned, their development is synonymous with the extent to which the information gathered in them is accessible.

In contemporary Poland, the state archival service promotes activities aimed at making qualitative changes in the availability of the information included in archival materials. Some attempts have been made to improve the quality of services provided electronically, including, making digital catalogues and archival resources available online, developing a system of information on the archival resources, preparing archival materials for online access and generally improving the conditions for providing direct and indirect access to the archival resources.^[2]

Progress in this area is determined by social expectations in light of the computerisation of the public administration and the digitisation of archives and their services. Though these processes are noticeable in most countries, the progress and methods employed to execute particular tasks vary considerably.

Taking Poland as an example, it is obvious that the whole range of issues connected with the general availability of materials poses a complex problem. It requires the involvement of a large number of archivists, considerable expenditure to prepare the necessary infrastructure, an Information and Communication Technologies (ICT) base, and an especially important issue from our perspective, a clearly outlined legal framework for providing access without causing any conflict of interest between the state and its citizens.

The legal issues involved in providing access to archival materials cover a broad spectrum. This paper attempts to outline the legal problems involved in making archival materials available in an era marked by a fast development of digital archives. Its main goal is to offer reflections on the interpretation of the law as it is being adjusted in order to meet social expectations whilst being in line with general European legislation. What is important is the state of legal equilibrium and the transparency of principles on which archival materials are made available, while safeguarding the interests of the state and its citizens.

Access to Polish archival materials

The general principles for providing access to archival materials in Poland were outlined in the provisions of the National Archive Resources and Archives Act of 13 July 1983.^[3] Pursuant to article seventeen, the legislator allows for archival materials to be made available in standard or early mode. In the case of standard mode, the general principle is that access is allowed when 30 years have elapsed from the day the archival materials were produced. Earlier access to archival materials is only possible with the consent of the information administrator. In both cases, providing access to archival materials is not given if this violates the interests of the state, organisational units, citizens, or other legally protected secrets.^[4]

These are not the only laws or regulations that the archives have to follow to be able to ensure the legal access to the material held. Before even considering the legal aspects of availability, a fundamental point needs to be highlighted, namely that state archives, originally established as institutions devoted to historical research, fulfil another function, that of state offices. This dualism is especially visible in the growing number of legal acts which archives are obliged to observe. Particular regulations are applicable depending on the nature of the issue^[5], impacting directly on the availability of archival materials. For example, the Ordinance of the General Director of State Archives of 1 February 2013 With Regard to Making Accessible Archival Materials in State Archives^[6] includes an interpretation and specification of the different ways archival materials can be used which does not agree with the meaning of making accessible set out in the National Archive Resource and Archives Act of 14 July 1983. Pursuant to article one section one of the act, from a statutory point of view, the following activities do not mean "making materials available"^[7]:

1. Presenting archival materials publicly available in wide area IT networks to unidentified users;
2. Issuing certificates, certified copies, extracts, transcripts and certified reproductions;
3. Providing archival materials for the purpose of proceedings conducted by government bodies entitled to do so by separate laws;
4. Lending archival materials, in particular for exhibition purposes.^[8]

From a legal point of view, each of the situations specified above is governed by a separate package of legal regulations in order not to violate legally protected information. Thus, each of the "forms of use or availability"^[9] above is disputable and in our opinion, a substantive discussion and a legal interpretation of the issue would be of key importance for interpreting these forms. The limits set on the accessibility of archival materials and the forms in which they can be made accessible are unclear. When digital archives begin to function as fully equipped state entities, it will be difficult to distinguish between making a digitally accrued resource available and other forms of using that resource. Currently, the law is the basic instrument for creating digital archives^[10], specifying the legal framework in which these archives will execute their functions. The archives provide access to archival materials and when allowing resources to be used for other purposes they are obliged to observe the regulations contained in numerous normative acts that protect the interests of the State, organisational units, citizens and legally protected secrets.

The inventory of normative acts whose legal regulations must be respected by archives includes:

• The Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78, item 483 as amended),
• the Act of 23 April 1964 on the Civil Code (Journal of Laws No. 16, item 93 as amended),
• the Personal Data Protection Act of 29 August 1997 (Journal of Laws No. 133, item 883 as amended),
• the Public Statistics Act of 29 June 1995 (Journal of Laws No. 88, item 439 as amended),
• the Classified Information Protection Act of 5 August 2010 (Journal of Laws No. 182, item 1228),
• the Public Information Access Act of 6 September 2001 (Journal of Laws No. 112, item 1198 as amended), and
• the Commercial Information Act of 14 February 2003 (Journal of Laws U. No. 50, item 424).^[11]

European approach for accessing archival materials

Although it would be possible to provide a specific interpretation and analysis of the legal regulations governing the activities of archives, we would prefer instead to point out another legal problem. According to both EU policy and the local policies of each individual state, archives are a basic and indispensable element of the cultural heritage. Since access to documents means the possibility to find out about the information included in the documents, access to public archives is itself a civil right, and hence a human right as well.^[12] This right is slowly becoming global, as users expect open access to archival materials via the Internet.

The way access is provided and how cultural resources can be used via the Internet has been debated for quite a long time now, both at European and local levels. Here we need to refer to Directive 2003/98/EC of the European Parliament and the Council of 17 November 2003 on the Re-use of Public Sector Information.^[13] Its provisions were implemented in Poland by means of amendments to the Public Information Access Act of 6 September 2001. At that time, in accordance with its regulations, the re-use of archival materials administered by the state archives was impossible.^[14] This situation has not changed in Poland the only difference being that the draft amendments to the applicable law and the extension of the above-mentioned directive. On 21 June 2013, the Council of the European Union adopted an amendment to the EU Directive on the Re-use of Public Sector Information (2003/98/EC). The most important change concerned the extension of the directive's scope to cover institutions such as museums, libraries and archives, allowing the re-use of the resources of those institutions, which had been excluded.^[15]

The re-use of information included in archival materials is a consequence of general changes affecting access, cultural development and the information potential of archives. On the other hand, the open status of archives infringes upon the laws providing protection for the interests of the individual, the State and any legally protected secrets. Therefore, changes to the law in this regard are inevitable as long as the changes being drafted allow for non-conflicting use of information included in archival materials whilst respecting the individual's right to privacy.

The legal dilemma

The legal dilemma regarding the need to ensure open and accessible public resources, referred to in the title of the present paper, arose during the debate on the propriety of the Guidelines for the Open Public Resources Bill from a substantive point of view.^[16] On 28 December 2012, public consultations began on the legal assumptions of this Act. A draft was sent to more than 60 entities directly interested in establishing a law regulating open public resources. The draft statutory guidelines, over twenty pages long, were a cause of great controversy and public consultations gave rise to many critical opinions.

In our opinion, the most important issue, problematic from an archival point of view, is that the two definitions proposed for public resource and public information, violate valid laws, including the right to privacy. Although we realise that the provisions are not cast in stone, we still consider this a legitimate subject of debate which in the present age of digitisation and making the resource available online has to be settled so as not to harm individuals' interests.

The first term – "public resources understood as final content produced by public entities or financed from public funds, regardless of the way of producing and recording them and mostly including cultural, educational or scientific content. This includes e.g. analyses, reports, studies, lists of data, maps, films, audio-visual content and other final products including processed or compiled information"^[17]. Public resources, understood in this way, are a key capital from the economic perspective; they also have great social significance, since they influence the quality and effectiveness of education, research and development, culture dynamics and broadly understood innovation (including in social terms).^[18] From the point of view of the interests of the state, it is important that the resource is available and its potential also be re-used for commercial purposes. On the other hand, public resources understood within this meaning, including as an archival resource in the general sense of the term, do not conform to the regulations and interpretation of archival law.

To state that in the context of an archival resource, public resources do not concern the functioning of the public authorities, is a major inconsistency. This is because the majority of documents stored in archives are the documentation of the public authorities. A number of legal restrictions, concerning the principles and legality of openness and accessibility, apply various forms of documentation stored in archives, such as court documents or documents concerned with issues affecting private citizens.^[19] It is also important to view the problem from the perspective of making public resources available in wide area networks. We cannot treat an archival resource sensu stricto, as a public resource and on that assumption make the entire resource available without any restrictions. Obstacles do exist and it is hard to imagine a situation in which an archival resource would be freely open, due to the diversity of the information included in archival materials.

Another definition, one that is not precise from both an archival and a legal point of view, is that of public information. The very statement of the legislator that

"public resources within the meaning specified in the draft regulation are not public information referring to the functioning of public authority bodies and serving first of all to ensure the transparency of the actions of public authority bodies"^[20]

is inherently inconsistent. Public resources include public information. If we regard an archival resource as a public resource that generally contains public information, we cannot at the same time state that the public resource does not include public information. In accordance with the judgement of the Voivodeship Administrative Court in Bydgoszcz of 9 September 2009 (ref. no. II SAB/Bd 19/08), it was decided that:

"Public information is ... the content of all kinds of documents referring to a public authority body, connected with it or concerning the body in any way, irrespective of what their subject is. It includes both the content of documents directly produced by the body and those which the body uses when executing the tasks provided for by the law (including those which are only partly connected with the body), even if they do not come directly from it"^[21].

In the case of archives, it is difficult to imagine that their resources do not have the qualities of stored public information.

When it comes to the use of public resources, including archival resources with public information stored in them, we need to take their specificity into consideration. Directive 2003/98/EC, quoted above, deliberately limited the possibility of re-using an archival resource. The legislator did not intend to limit access due to the complicated process of making materials available, but nonetheless factual premises and legal restrictions created this limit. Archival resources – as Władysław Stępniak, the General Director of State Archives in Poland, rightly observes – were treated separately for a reason. In most cases it was impossible to apply the principles across the board, when considering an application for access to public information. As institutions established to store documentation, archives are the administrators of the documents, taking over documentation from a number of state and non-state entities from different periods of history. We cannot, though, expect archives to provide access to public information in the documents based on the same principles as those for providing access to public information belonging to the authors of the act.^[22]

In this context, another legal issue, one connected to digitisation, arises.^[23] If archives were to make the digitised part of their resources available, this would represent only part of the resource, which according to the current law may be presented in publicly available, wide area IT networks for unidentified users. We can argue that this specially selected part of the resource cannot be identified with the entire archival resource of Poland and therefore it cannot be treated in the same way, from the legal perspective, as a public resource.

In his comments, the General Director of State Archives pointed out yet another important aspect, which from a legal point of view disturbs the perspective of non-conflicting availability and the re-use of an archival resource. He argues that since archives already have resources whose availability depends on individually presented cases, how, then, should the issue of legal access to already archived resources be regulated, if it is known even now that certain principles of access can be established?^[24]

Conclusion

The above-mentioned considerations lead to the conclusion that archives in Poland in the current era of digital services will have to determine the extent to which their resources will be open. The drafted changes to the law and the current public debate on the issue should guarantee the appropriate, lawful changes desired for the archives. Archives are the administrators of information that is valuable but of varying origin and therefore, all legal restrictions should be respected and the basis of an effective and consistent legal system regulating the accessibility of archival materials in wide area networks should be established in the digital archive age.

The legal dilemmas involved in making archival materials accessible, are currently the subject of a new law that is being drafted. The legal act that constitutes the basis for this text offers only inspiration for deeper reflection. Every archivist, aware of the specificity and clear legal framework controlling access to archival materials, is undoubtedly interested in what changes will occur in the future. Adjustments will have to be made to the draft principles of the Open Public Resources Act. At the time of writing (February 2014), the legislative framework for these changes is being prepared. We, as archivists, would like to express our satisfaction with the comments of the General Director of State Archives. His stance will make it possible to make the changes in the spirit of the law that will also protect the interests of those whom the archival materials are intended to serve, namely us, citizens.