sou · GQB3112 · 2003-01-01 00:00:00 — In 1997 a legislative committee, the Data Legislation Com- mittee chaired by Supreme Court , pro- posed a radical change of the basic concepts in the right of access regulation in Chapter 2 of the Freedom of the Press Act. The proposal (SOU 1997:39) strove to distinguish between two kinds of information, viz on the one hand fixed or static information, and on the other dynamic or changeable information. The pro- posal recognised that the medium as such does not necessarily decide the nature of the information that it . A traditional paper medium, an index card file, for example, may contain in- formation that is intended to be changed. On the other hand, an electronic medium may contain fixed information, such as write- protected numerical data or the finalised minutes of a meeting stored in a text database. took it for granted that electronic media are on their way to dominating the information processing of public authorities. One consequence of this devel- opment is that fragmentation of information will become more and more visible and common. In other words, the previously mentioned definition of technical recordings as any meaningful compilation of data ought to be made visible in the text of the statute and ought to serve as the basis for the regulation. This reasoning led the committee to propose that the object of access ought to be, not official documents but official data. The concept of a document was to remain in the statute as one kind of storage space for data and a document as a storage space was to be characterised by its fixed nature. In the words of the com- mittee, a document had a defined content, viz. the content which was originally ascribed to it and which was not intended to be changed. Changeable storage spaces were called data- bases. Databases, typically, contain data that are continuously updated and that may be presented in different combinations and formats. The merits of the proposal may be discussed. Ultimately, it did not meet with success, above all because the idea of substitut- ing official data for the well-known official documents proved to be too radical (too much ahead of its time?). In addi- tion, a number of details of the proposed regulation were unclear. A subsequent legislative committee, ness and Secrecy, chose a more cautious strategy, marked also by a certain reluctance to acknowledge the notion of potential documents. Its proposal (SOU 2001:3) reserved the concept document for fixed entities of information (a certain informa- tion content in uncorrupted form) regardless of whether the in- formation is stored on traditional or electronic media. Leaving details aside, it may be noted that, according to the committee, the key issue concerned the significance of so-called routine measures as a prerequisite for the accessibility of electronic re- cordings (see above). According to the committee, fixed elec- tronic documents (such as the finished text of a decision) must be made available upon request regardless of whether this requires more than routine measures on the part of the public authority, whereas compilations of data (i.e. potential documents) must be made available only to the extent that this presupposes no more than routine measures. It may also be noted that the committee shaped the right of access to compilations of data as a sort of a secondary right. Neither the committees proposal nor the Gov- ernment that implements it (2001/02:70) let the relevant pro- visions of the Freedom of the Press Act explicitly state that there are two kinds of electronic documents, the fixed ones and the potential ones. , which commented on the bill, considered this an unfortunate lack of clarity. The reason behind it is to be found perhaps in a persistent uncertainty, even uneasiness, with regard to potential documents and fluid access rights. Thus, the latest revision of Chapter 2 of the Freedom of the Press Act continues to struggle bravely with the tension between fixa- tion and flow. The struggle is bound to go on. It will involve con- tinued work with basic concepts such as potential documents but also with basic policy issues regarding a possible strengthen- ing of the right of access aimed at making full use of the potential of electronic media. A few remarks may suffice to sum up. They concern (a) the right to use information that has been obtained, (b) the situation of computer programmes, and (c) the develop- ment of information infrastructure. Access rights do not only involve inspection of documents etc. Their value often depends on how the information can be used. Electronic media strengthen the interest in this aspect of access, for the simple reason that they lend themselves to much more extended and varied use than traditional media. For the minimalist this may seem more frightening than beneficial. For example, extended use rights tend to collide with the protection of the individuals data privacy and with intellectual property rights. The maximalist welcomes extended use, supports the idea of giving access to computer-readable data, and is critical of dif- ferent kinds of data ownership that may stand in the way of using data obtained from the public authorities. Both views are reason- able and they have to be balanced against one another. Computer programs are at the core of the concept of fluid information. In the right of access does not include a full-fledged right to examine functionality. There are certain ob- ligations to document computer systems and the Act of 1998 regulates a right to learn about the logic behind cer- tain automated decisions. Computer program descriptions (in- cluding flowcharts and written code) are accessible as documents according to Chapter 2 of the Freedom of the Press Act. But there is no right to obtain computer readable copies of computer pro- grams. Above all, there is no right to require that a public author- ity execute a computer program with input data supplied by the applicant. From the maximalist point of view one may ask why not. The only way a program can be understood is by running it. Reading lists of source code or, even worse, object code doesnt make anybody the wiser. The information infrastructure can be designed with varying regard for openness interests. The electronic environment is sen- sitive in this respect. To elucidate, it is essential to design the in- formation systems of public authorities so that they can support the kind of aims that access rights legislation seeks to achieve. As a simple example, consider a system that only permits re- trieval of particular registered information items (e.g. decisions with a diary number). Or consider a system where data of differ- ent kinds and belonging to different categories are stored in such bad order that all requests require time-consuming fishing expe- ditions and lead to frequent refusals, due to difficulties of assess- ing whether documents are official or not. Consider, on the other hand, systems that have been designed with a view to actively supporting openness interests – even when this involves extra costs and system functions that are not in the direct interest of the public authorities themselves. Such systems may contain person- alised, cross-agency information services, alert services (e.g. for non-government organisations), databases for particular purposes (e.g. educational databases and statistical databases), and so forth. It may be objected that such extended services go beyond access rights as they are traditionally understood and that access rights have to do with more narrow purposes mainly involving control of public authorities. This is the minimalist view. The maximalist view is that electronic media enables a new vision of access rights. Why stick to the minimalist peep through the key- hole kind of access? The modern knowledge society can and ought to have far more ambitious goals. In short, one of its key obligations should be to develop a rich notion of infor- mation services based on the traditional concept of access to offi- cial documents. For knowledge to grow, information must flow. Archives of the Future 1 Traditional perspective of archives The of what archives are and constitute has changed throughout the centuries. This differs also between countries. The purpose of archives/records administration, simi- larly, has changed through the centuries. To begin with, the state authority regarded archives and archival administration mainly from a constitutional and legal perspective, as a safeguard for rights of property and ownership and as evidence of diplomatic and other proceedings. With archives thus viewed, it was only natural that access to them should be restricted. Archives at this time consisted of clay tablets, papyri, parchment and, later, of paper documents. The mass of docu- ments was unimpressive, and they could be mastered with rela- tively difficulty. By the same token, inventorying, authenticity, search tools, appraisal etc. did not seem to pose problemsThi., more or less, was the situation prevailing from the medieval era until the eighteenth and nineteenth centuries all over Europe. But in the nineteenth century things began to change. As administrations grew and the production of docu- ments increased, special bureaucratic traditions developed. In the twentieth century, we saw real mass production of documents in the archives, especially during the two world wars. One dominant factor, of course, was the swelling of administration as a result of public sector expansion. The dominant medium of information was still paper, even though other media such as microfilm were beginning to be used. In most countries, even in democracies, ac- cess to documents in the archives was restricted. After the Second World War, the situation changed. In many countries, the developed ones especially, the appearance of is deputy director general at the National Archives He has served on many governmental commitees as an expert on matters of, among other things, electronic archives. He is author and co- author of reports and books on archive legislation etc. He is currently chairman of () chival legal matters and has been working with legislative matters regarding electronic documents in several capacities within Union, amongst others the () Committee since 1995. societies dominated, to a greater or lesser extent, by social engi- neering generated huge quantities of information and archives expanded accordingly. Electronic documentation entered the public service in the sixties and seventies, the idea being that a better and more advanced society could be created through greater production of information made more accessible. One reaction against the collection of vast masses of per- sonal data and social took shape in the sixties and seventies, resulting in various kinds of data protection legislation all over Europe and also in many international conventions, recommendations etc. on the subject of privacy. Archival affairs were greatly affected by one aspect of this new trend, namely the deletion of personal data after its having been used for its pri- mary purpose. 2 The four factors of decisive importance for archival work The technological development means that we have to deal with enormous masses of data. It is easy to talk of megabytes, giga- bytes, terabytes, petabytes and even exabytes. But in more palpa- ble terms, the National , for example, have taken delivery of some 2 terabytes of electronic records, contain- ing 20,000 files and stored on about 10,000 data , usually tape cassettes, corresponding in hard copy terms to 100,000 shelf-metres. Printing out on paper eliminates the possibility of automatic processing, whereas large volumes of data can now be transmitted from one place to another all over the world. One important factor is that ICT development has resulted in the development of new areas in science and medicine, for ex- ample, which only a decade ago would not have been possible. New hardware and software is developing rapidly. The archives of the laboratory in contain hundreds of tera- bytes of data. In 1999 the pharmaceutical company Beecham were archiving 2 terabytes a year, and 2 gigabytes of regulatory documents are added daily: growth is on a logarithmic scale. This company will soon reach 1,000 terabytes. This development will raise problems as to what documents are, how to store them, how to migrate them (i.e. to change their technical format without compromising neither contents nor con- text), and problems of authenticity. The difference compared to the paper world is that in this ICT world you cannot wait: you have to plan and act even before the information is created. 2.2 The democratic process Today, and perhaps in Europe especially, we are faced with a new situation. It can be argued that we have a new society, one in which people have become more educated and critical. They have become independent and are taking a growing interest in the way society is administered. This, coupled with the rapid devel- opment of ICT and within Union, is making citi- zens much more interested in matters regarding democracy and access to documents, which is seen as a right and not as a privi- lege (see about Article 255 in the below). The growth of historical interest can furthermore be linked to these issues, as the societal function of historians is to describe and ex- plain the past, both the more distant but, not least, the recent past. The situation up to the end of the last century was that the degree of openness and the extent to which documents kept by Governments, agencies and archival institutions were legally available to the public varied a great deal, depending on differ- ences in national traditions, rooted as they were in historical ex- perience and inherited concepts of right and . Access to documents is in many countries today seen as a democratic right and as the best way to inspire confidence in the public admini- stration. Arguably, this also enhances legitimacy. As we have already seen, attitudes and legal positions regarding access and protection of privacy varied from one country to an- other. Not so today. The most important factor in Europe is Union. Much legislation is harmonised through its di- rectives etc. Perhaps the best-known directive is the so-called Data Protection Directive from 1995 (95/46/EC), which should have been implemented in 1998. This directive is meant to facili- tate transfer of personal data between EU countries and so-called third countries, which have the same level of protection as set within the EU. Another important directive is that on certain as- pects of copyright and related rights in the (2001/29/EC), which has implications regarding the preservation and availability of information. Then there is Article 255 of the treaty of the Euro- pean Union, laying down that the citizens of the Union shall have a right of access to documents in the EU institutions. Regulations regarding this right have been elaborated and were adopted in 2001. In the on Public Sector Information: A key resource for Europe, it is said that public sector information plays a fundamental role in the proper functioning of the internal market. In this paper a comparison is made with the , where – ever since the Freedom of Information Act (which went into effect in 1967) – the federal administration has pursued a very policy of both access to and commercial exploitation of public sector information. 2.4 Changing structures in society Formerly, we lived in a more stable society whose institutions and structures seldom changed. Today, we are living in a rapidly changing society. structures are giving way quickly. The pri- vatisation of public functions has become more frequent all over the world. Furthermore, the role of the nation-state is questioned and new types of transborder structures are emerging. This ten- dency of rapid changes and supranational structures will most likely accelerate in the future. It has affected archival work in many respects and to a considerable extent. Not least, there are changes in mentality in that public authorities are becoming more open to the public. In the ongoing development of so- called 24-hour agencies can be seen as an example. 3 Some elements of archival work 3.1 The concept of a document/archive It used to be easy to determine what a document was. It was usu- ally a paper with information, which was stable and difficult to manipulate. It had been either received or drawn up by an agency or private body, i.e. an archive creator. The agency or body was also easy to distinguish and the routines were relatively stable. Today a different situation applies. In the electronic world of large databases, it is not so easy to determine what is a docu- ment and which agency/body is the archive creator or is respon- sible for the information. The Regulation of Par- liament and of 2001 regarding public ac- cess to European Parliament, Council and Commission docu- ments gives the following definition: – document shall mean any content whatever its me- dium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institutions sphere of responsibility. This definition may be clear concerning the more stable and fixed paper documents. But regarding electronic information it is not enough. In Swedish legal doctrine, another type of document has emerged since the 1970s, namely so-called potential docu- ments, which can be said to exist only on demand and do not ex- ist in advance. They constitute official documents and are thus available to the public. Now a new Government bill has proposed that better predictability should be established – that is, that there should be existing and finished documents in the electronic envi- ronment. This proposal cannot resolve all difficulties, and more work will have to be done to elaborate more detailed rules. As we see it now, this puts more emphasis on the registration, the estab- lishment of metadata etc. at the records creation phase, where it must be decided even in databases what constitutes existing and established documents which are accessible to the public. It should be mentioned that in archives consist of official documents, which means that the archival authorities have to deal with older records as well as documents of today. Defini- tions of what a document is and what an archive consists of vary but it is necessary for each country to choose and apply one clear definition of these phenomena in the electronic era. I believe this to be the only solution. Otherwise, it may be impossible five or ten years after an event to decide what kind of combinations of data were accessible to the creator of the archive and therefore constitute official documents in an electronic envi- ronment. 3.2 Arrangement and description When it has been established what constitutes a document, this document must be registered or catalogued so that the informa- tion will be available both to the agency itself and to the public, and also in the long run for research and evaluation. How this is done differs from one country to another all over the world. In countries with a tradition of freedom of information, registration and cataloguing of documents have a stronger position. This is clearly shown by developments within Union and . If registration and cataloguing in the paper world could be done without too many difficulties, the situation in the electronic world is quite different, owing of course to the four factors men- tioned above, in subsection 2. 3.3 Appraisal/deletion Appraisal, which means the evaluation process of what docu- ments to destroy and what to save for perpetuity, and deletion, which is the destruction of documents, are rapidly becoming one of the toughest tasks of archival work. Obviously, we cant keep everything, even though the price of data is steadily fal- ling. The difficulty of this task is compounded by the factor of privacy, which has become so manifest in recent decades. Take, for example, the EC directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data, where the main principle is to destroy personal data after they have been used for their primary purpose. If this were to be fully realised, the result would be disastrous for free access and research possibilities. A balance must be struck between the conflicting interests. In , the National Archives has defined deletion as follows: –deletion of official documents, –deletion of data in connection with transferring information to other data , if this means o loss of information, o loss of possibilities to combine data, o loss of possibilities to recognise or find data, o loss of possibilities to establish the authenticity of the information. A clear definition of deletion of this kind is necessary in the computerised society. Moreover, I believe that the definition should be set down in law. The need to keep data is also growing rapidly in a world where human beings can influence the climate so very much and where so much can be done in the field. It also has to be remembered that these electronic docu- ments form part of our cultural heritage. , in its Mem- ory of the world programme, realised this need and has initiated several projects for preserving our digital heritage. 3.4 Authenticity/migration Matters of authenticity are creating quite new problems regarding electronic documents as compared to paper documents. In many cases today, you have no paper documents, only electronic ones. In addition, the transborder data flow both in the public and in the private sector has made it necessary for norms of authenticity and legal validity to be agreed at the international level. Then again, the fact – that in many countries electronic documents are now being transferred to archival institutions much earlier than the paper documents were – means that these institutions have to guarantee validity and authenticity of the electronic documents in the long run through migration etc. It has to be recognised that archives are created and kept for cer- tain purposes. Initially, they served the interests of king and gov- ernment. Today, the more democratic interests prevail, i.e. Furthermore, documents of extreme importance, for ex- ample regarding the environment or regarding the individual (such as patient files), will in the near future exist only in elec- tronic format, which generally means that they must be kept in this way. The archival/records administration must adapt accord- ingly. Furthermore, the principles of archive maintenance pre- vailing until now, i.e. the principle of provenance, can be ques- tioned but apparently still holds good. According to the Swedish interpretation, this means that both text (information) and context (the original structure, in which the text was created) must be preserved. This has become even more important in the elec- tronic environment. This interpretation has been acknowledged in many research projects all over the world. simply, it is a matter of order and discipline in the archives/records administra- tion throughout the lifecycle of the document. It must also be stressed that electronic documents form part of our cultural heritage. It is generally easier to conceive of clay tablets or parchments letters as a part of that heritage, but it should likewise be evident that electronic documents have fun- damentally the same purpose as paper ones, namely that of stor- ing text on a data in a certain context. The problem is that we now have, and will continue to accumulate much more data, and data of enormous complexity.