No Closure without Disclosure

Trudy Huskamp Peterson

Access to Archives

Denial of access

Principles of Access to Archives

Denial of access

1. “Those sorts of records were never created.”

2. “We don’t have those records.”

3. “Those records were destroyed.”

4. “You can’t see those records.”

1. “Never created”

Oral orders: Bosnian Serb Army, 10th Sabotage Detachment

Bulgarian military hospital records

2. “Don’t have”

Still in hands of creating entity

U.K. colonial records

Taken as personal property

U.S. state investigation of subversive activities

Stolen

Argentina Tortura Nunca Mas

Kenya court, prosecutor, police

(Can’t find)

3. “Destroyed”

Planned, with archives approval

Natural disaster

Unauthorized human activity

3. “Destroyed” continued

International Council on Archives

“war, civil unrest, fire, flooding or other catastrophies, simple neglect, lack of interest, climatic conditions, level of pollution of the environment, by financial constraints, by lack of training, by lack of cost-effective conservation methods”

3. “Destroyed” continued

El Salvador: Pro-Busqueda (NGO)

Czechoslovakia: secret police

U.S.: CIA videos of “waterboarding”

Germany: security service files on neo-Nazis

Niger: anti-corruption investigation files

Tunisia: archives of propaganda ministry ATCDE

4. “Can’t see”

Privacy

Business information

Personnel information

Investigative information

Statutory and other directed restrictions

National security (governments)

Principles of Access to Archives

Access is the availability of records/archives for consultation as a result both of legal authorization and the existence of finding aids.

--Dictionary of Archival Terminology, 2nd Edition

International Councilon Archives

World organization of archival institutions and archivists

Headquartered in Paris

Standards for finding aids 1994

Access principles 2012

Finding aids

Not described: Korea list of kidnapped

Intentionally vague: USSR rules, Czech film archives practice

Keep knowledge in the public domain

Principles of Access to Archives

1. The public has the right of access to archives of public bodies. Both public and private entities should open their archives to the greatest extent possible.

Principle 1: Right of access

Principle 1: Right of access

Marshall Islands: atomic contamination (government)

Canada: schools for First Nations children (government and church)

France: railroad transport during World War II (business)

United States: Boy Scouts of America abuse (nongovernmental)

2.  Institutions holding archives make known the existence of the archives, including the existence of closed materials, and disclose the existence of restrictions that affect access to the archives.

Principle 2: Make known

Guatemala: police archives

Argentina: military junta records

US: National Security Council electronic deletion

Principle 2: Make known

3. Institutions holding archives adopt a pro-active approach to access.

Principle 3: Proactive-approach

Hillsborough Independent Panel Disclosed Material and Report Browse the disclosed material 'Browse' allows users to look through the material on this website

organised in a number of different ways, for example according to the creation date, or who contributed it.

Material referenced in the Report View documents that were used or quoted in the Report.

4. Institutions holding archives ensure that restrictions on access are clear and of stated duration, are based on pertinent legislation, acknowledge the right of privacy, and respect the rights of owners of private materials.

Principle 4: Clear restrictions

The Suprun Case: The Supreme Court Refuses to Re-Examine the Sentence12 August, 2013 - 19:55 We have lately received the Statement by a Judge of the Supreme Court of Russia refusing to satisfy the administrative appeal against the decision of the Oktyabrsky district court of Archangelsk from Dec 8, 2011, declaring Mikhail N. Suprun guilty of unlawful collection and dissemination of information comprising personal and/or family secrets of a number of individuals.

The main argument of the defending attorney's appeal has been absence of "personal secret" and/or "family secret" term definition in the actual national legislation. Due to that, investigative bodies and all court instances implemented subjective opinions as the only criteria to declare specific information someone's personal or family secret.

5. Archives are made available on equal and fair terms. 

Principle 5: Equal access

6.  Institutions holding archives ensure that victims of serious crimes under international law have access to archives that provide evidence needed to assert their human rights and to document violations of them, even if those archives are closed to the general public.

Principle 6: Human rights

Updated Set of Principles on Impunity “Joinet Report”

United Nations High Commissioner on Human Rights, 1997, revised 2005

Principle 6: Human rights

Updated Set of Principles on Impunity

Victims, their families and relatives have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victim's fate. (Principle 4)

Principle 6: Human rights

Updated Set of Principles on Impunity

Access to archives shall be facilitated in order to enable victims and persons related to claim their rights. (Principle 15)

Principle 6: Human rights

Updated Set of Principles on Impunity

Access should also be facilitated, as necessary, for persons implicated [in perpetrating human rights violations], who request it for their defence. (Principle 15)

Principle 6: Human rights

Updated Set of Principles on Impunity

Access to archives should also be facilitated in the interest of historical research, subject to reasonable restrictions aimed at safeguarding the privacy and security of victims and other individuals. Formal requirements governing access may not be used for purposes of censorship. (Principle 15)

Principle 6: Human rights

Updated Set of Principles on Impunity The courts and non-judicial commissions of inquiry, as well as the investigators reporting to them, must have access to relevant archives. (Principle 16)

Principle 6: Human rights

Updated Set of Principles on Impunity

All persons shall be entitled to know whether their name appears in State archives and, if it does, by virtue of their right of access, to challenge the validity of the information concerning them by exercising a right of reply. (Principle 17(b)

Principle 6: Human rights

Updated Set of Principles on Impunity

Access to the files of commissions of inquiry must be balanced against the legitimate expectations of confidentiality of victims and other witnesses testifying on their behalf . . (Principle 17(b)

Principle 6: Human rights

7. Users have the right to appeal a denial of access.

Principle 7: Right to appeal

United Kingdom FOIA statistics 200961 appeals from decisions from “departments of state”42 upheld in full12 overturned in full7 overturned in part

United Kingdom FOIA statistics 201137 appeals from decisions from “departments of state”24 upheld in full5 overturned in full8 overturned in part

8. Institutions holding archives ensure that operational constraints do not prevent access to archives.

Principle 8: Operational constraints

Principle 8: Operational constraints

9. Archivists have access to all closed archives and perform necessary archival work on them.

Principle 9: Archivists have access to closed archives

Records in custody of the United Nations

Truth Commission of El Salvador: closed indefinitely

Truth Commission of Guatemala: Secretary General must authorize the opening of records prior to 1 January 2050

10. Archivists participate in the decision-making process on access.

Principle 10: Archivists participate in access decisions

Conclusion

Laws must ensure creation of records to document government business

Laws must ensure transfer to archives

Laws must have penalties for destruction

Vigilance