Answer to the question of who is allowed to draw on the documentary heritage of generations is: everyone. The doors of the public archives are open to everyone, and no one is excluded from perusing the relics that form part of the common information legacy. Interested parties can then explore those relics according to their own self-defined needs, using their own queries. The value of these entitlements is not diminished by legal protection of secrets – public or private.
Statutory regulation applies to documentary relics that have been deemed to have enduring value for learning. For this reason, the law has endowed selected manifestations of recording, a civilisational skill, with enduring preservation. The legislators even used the audacious term: 'in perpetuity’.
Nearly all of those relics used to function in their presents, now long past, by delivering their utilitarian usefulness. Today, though their original sense remains, in the course of time passing they have transmuted into dots on an image depicting the past. They may even have gained a previously unrecognised insight value. They have transitioned from their original sphere of utility into the realm of knowledge. Although accessing them is not always motivated by desire to expand knowledge, nonetheless that particular motivation is considered emblematic.
Even when the contents of written relics are trivial, they retain their quality of being old. They are a testament that things used to be recorded – to defy the ephemerality of time and memory. They are tokens of multifarious aspirations, forged by people – the movers and shakers of past communities and states, as well as the creators and trustees of mnemic legacies.
Whatever the original role and importance of these relics, they were headed – unless lost along the way – towards the archives. Archives were one of many things born from the culture of writing; what differentiates them from other depositories of information relics is the preponderance of content not intended for publication. Not for the reasons of secrecy, but in the sense of original distribution needs. It is a linguistic habit to position archives among the “institutions of memory”, emphasizing their function of carrying the knowledge of the past through time. Yet, they do not do so in a straightforward manner. They remember not what happened; but rather what was recorded, then survived despite countless odds, and – which is key – got noticed.
The archives are not limited to testimonies recorded in writing. Their holdings are so diverse that the legislators concluded the type listing with the phrase “or others”. The object type range, so forcefully opened, has nevertheless not taken the meaning of “anything and everything”. Still, the most unyielding facts are those technical in nature – inventory assignations of previously unmarked objects. Classification can be unreliable and volatile, and what ultimately matters are the access-related entries.
The power of catalogue arrangements works in reverse as well. “Institutions of memory” other than archives also, on occasion, collect the same types of documentary relics, but they give them their own designations – as per the rules of libraries or museums. They benefit from the legislators’ failure to assure separation, by definition, of different types of holdings. Whatever is in their hands is subject to their own rules, including those pertaining to access.
The legislators focused their attention on old documents, remaining in the purview of the public authorities. In the spirit of the authoritarian era, during which the archival law was enacted, the archives have been designated as “state archives”, since the state was all-encompassing at the time. The legislators knew about the existence of other written testimonies of history, but they could not, or would not, name them. It sufficed to indicate what they were not. The adjectives “state” and “important” seemed to be considered akin to each other. A principle was upheld of depositing indicated relics in historical archives, to which the archival community referred by an expressive term as “final”. For these, access regulations were established, albeit with varying attention.
The path to inclusivity of public archives was long. Once it was travelled, it now suffices to declare one’s desire to access the documents, usually with no need for justification. Questions can be asked of those interested only if their exploration desires encounter justified secrecy of others, creating a clash of interests. This tends to occur mostly in the chronological layer of extended contemporaneity, the domain of the living, but that is where the attention of archives’ guests is focused, and that is where the centre of gravity of this part of regulations lies. The rules of access constitute the exercise of freedom to access and distribute the information, while at the same time setting fair limitations thereof.
On occasion, however, a different category of interested users demand access to old documents: public officials, citing specific grounds for their demands. They are not bound by the Act on archives, but the archives are obligated to respect their privileges.
In the mainstream use of documentary heritage, access thereto is granted at the request of the person concerned. Not by permission of the archive manager; such an arrangement is not known under the archival law. The exercise of freedom does not require a permission. In contrast, the prerogative of the interested party may be called into question if it clashes with other freedoms and rights – with the prospect of partial or full refusal of access. In such proceedings, initiated ex officio by the archive authority, the onus is on the archive authority to demonstrate why it is undermining the implicit information freedom of the interested party. The latter may provide explanations, disclose the purpose of their research – but in no case does the process entail seeking the authority’s permission to access. The spectrum of outcomes includes various options to reconcile opposing information interests – in favour of disclosure and in favour of withholding – or to establish primacy of one over the other, with potential denial of access. It is also possible that the initial presumption of access constraints would be found erroneous, which should result in discontinuation of the proceedings.
Over several decades of the archival law remaining in force, its access-related module was modified a number of times. Nevertheless, even its original wording constituted a protoliberal phenomenon in the authoritarian era. Three subsequent heads of state archives have worked on the long-proceeded drafts. None of them outwardly resembled schoolbook heroes, but all of them were involved – sometimes in paradoxical ways – in academic research, including history, or at least in research invoking the authority of academia. Thus, the undeniable feature of information openness has reflected not so much the liberal spirit, as the internal interests of researchers’ community. The ideals of universal freedom of information seem to have remained out of mental grasp of the fathers of regulation, who, while differing from each other, were equally steeped in the oppressive order. And yet, formulas developed in their time were imbued with far-going potential.
This complex standard, evolving over time, does not, however, seem to have a strong impact. In particular, archives of certain bodies of authority and administration distance themselves from it, and remain, traditionally and in many countries, exempt from the general system – in the name of public interest. The institution of being exempted from the authority of the head of state archives had found many more adherents over the years and became trivialized. Accessibility of their holdings is regulated by an act of law that has the form of secondary legislation to the Act on archives, but its content is effectively a permission to not follow that Act.
The effective addressees of the access rules enshrined in the Act on archives are the state archives – which, contrary to their name, are by far not the only ones within the structures of state administration. It constitutes a major burden for them, as they have always lurked on the periphery of normative and administrative culture, not hungering for competences in the area of information rights and freedoms. They do recognise them, but often stop at simplistic and wobbly references thereto. Thus, regulations in this area may turn out to be orphaned.
They could well be absent from the Act on archives. But by being there, they situate exploration of documentary heritage within the universal system of rights and freedoms. They do not transport those interested in its constituent elements into a separate sphere of prerogatives and prohibitions. The key principles of access, and even more so, denial of access, are, as it be, “borrowed” from elsewhere, from separate legislation. In the act devoted to the archives sector, access principles are but a list of references to other legislation, and in this particular place may seem almost secondary, redundant.
Final archivisation of documents is an organisational event, devoid of relevance in terms of access rules. If anything changes at the threshold of the archive, it is eventuated by the time that had passed since the information was recorded, its detachment from current interests, the decay of secrets and mysteries. At this stage of documents’ lives, information freedoms may become emphasized.
While archivistics focuses on documents, the access-related module of the Act on archives falls into the sphere of use of information versus its temporary concealment. Although it literally speaks of providing access to written records, its normativity pertains to the content itself, not the material form of the documentary relics. The only premise for denial of access that is reasonably “owned” by archives is protection of their physical integrity.
When access is granted in the setting of the reading rooms of the archives, those interested receive access to the content along with the carrier. It is only rarely, however, that they wish to examine the corpus mechanicum of the documents; predominantly they seek access to their their information content. For this reason, the “real” relics (including the relatively recent ones) and their images are made available interchangeably. The concept of “original” is used sparsely, as the archives meticulously preserve also historical forgeries and copies, taking into account the fact that in the past they functioned as if authentic and elicited very real consequences.
This aspect was revisited in a particular way in connection with implementation of personal data protection laws; it took form of a stipulation that archives should also preserve documents original collection of which was unlawful or where such documents are false, inaccurate or incomplete. The archives preserve what was actually created. The nature of protection creates an impassable barrier, however the archives have shifted this barrier to the time of access, somewhat stretching the provision on “archiving purposes in the public interest”, included in the European regulation. This allows them to wait until the data protection expires naturally.
The legislators have never specified what providing access to documentary relics by archives consists of, what it actually is. For a long time they seemed to rely on the purported obviousness of the concept. When later they wanted to abandon this terminological fiction, a competing understanding of the concept, not favourable to archives, prevailed in the legal system. It described informational readiness. The holder of the content should share it in such a way that it can be consulted or downloaded immediately and freely by anyone. Open ICT systems are the natural environment for such operations. Movement of multiple portions of the information offered may never occur. It is conceivable that no such event will ever occur, but nonetheless sharing is deemed to have been achieved – by creating potential of access. This approach is employed in particular by the public sector open data standard.
The archives, on the other hand, were handed the minority version. Providing access to the documents collected is not interpreted as the sheer possibility of access, but rather specific instances of its execution. Each time, access is initiated by the interested individual. Understanding access as an actual event, episode, or sequence of episodes of information flow, remains inconsequential as long as it has a positive outcome. In such a situation, the term merely describes a sequence of technical and material actions, not greatly divergent from its alternative interpretations. The semantic divergence becomes salient when access is limited or denied, when the interested party’s plan does not come to fruition, at least not in its entirety. At this point, the event-driven rather than potentiality-related nature of providing access to documentary heritage comes to the foreground. Such lexical inconsistency could not, however, linger forever in the legal system – and it’s up to archives to seek new language.
Despite the definition shortcomings, the Act explains, that the archives provide access to collected documents, enabling the interested parties to peruse them. The archives ensure convenient methods of searching for them in registers, and subsequently of viewing their content. They are process organizers, but not co‑researchers. Their guests reach raw information contained in historical documents following their own criteria and as a rule are not guided or assisted (unless in specified modes), nor equipped with convictions. Such reticence does not exclude helpfulness, sharing expertise; the neutrality paradigm could blend into the background if it were not for manifestations of the alternative vision of archives, in which they influence people’s awareness and attitudes, shape collective memory and interpret the documentary legacy.
The mission of archives includes taking care of information apparatus and means to register the collected records – both the historical ones, with potential modifications, and those developed subsequently. Omissions and errors in this area would make the documentary legacy a land without maps, impassable.
Drawing from information holdings is free of charge. Initially, the Act tied this guarantee with the objectives (needs) of the interested parties listed therein. Providing access for other purposes was to be paid, however this differentiation has never materialized. Currently archives refer to the charge model known from regulations on open data and re-use of public sector information. An interested party shall cover the cost of information transfer if it requires that the archive incurs additional costs due to requested “special method or form”. The two concepts of charging are separated through a long-lived notion of “archival services”. It is still present in the Act, but devoid of its former legal intent. It became embedded in the standard of information re‑use, as the access regulations for final archives can be seen as their early prototype, free even of application rigours.
The reference level of “ordinary” costs incurred by the archive, such as do not waive the guarantee of free access, is habitually associated with the interested party’s personal peruse of documents in the archive’s reading room. This type of access is close to realities from the distant past, when the Act on archives was enacted in a pre-digital world. With time, the ICT systems were to become the equivalent arena for exploring documentary heritage without incurring additional cost.
The interested parties access documentary relics of the past personally, or via the archives, requesting them to search for information and documents. They are allowed – beyond ordinary perusal, learning the content of the documents and traditional taking notes – to copy documents they receive in the reading rooms; in the virtual space, they can download files. Obtaining information with assistance from the archives usually occurs beyond the threshold of free access, with “special method or form” of transferring information remaining the conclusive criterion for deciding whether additional costs were incurred or not.
For decades, the Act on archives confronted demands for access with their constraints, generally referred to as “interests protected by the law”. Subsequently, those constraints were categorized. Statutory secrets were identified (both public and professional), and next to them – protection of personal rights and personal data. Protection of risks to integrity of documentary relics was also taken into account. Draft bill included copyright protection as well, but it was removed during the legislative process. It was of no particular significance anyway, given that the entire enumeration consists of references to separate acts of law, independently applicable.
Moreover, the archival law has developed its own specific form of information protection – delayed open access periods, assigned to several types of documentation that typically pose a risk for information autonomy of citizens. In most cases, they were correlated with estimated maximum human lifespan.
Access barriers of the first type could have been overridden by information privileges of interested parties, related to their social roles distinguished by the law, exercised occasionally (even if very regularly). This required examination during the denial of access proceedings. Open access periods, on the other hand, were definitive, and any deviations therefrom were nominally not subject to administrative discretion. Certain interested parties were eligible for waivers; not based on their information privileges, but rather who they are (especially if they were the subjects of the protected data). The law protects information autonomy of persons identified in documents – but not from themselves. It was also assumed that the status of persons thus entitled is objectivized, subject to determination without evaluation.
Near-absolute open access period rules, prohibiting access for multiple decades, have clashed against the culture of immediacy and the social habit of negotiating individual exemptions. Information autonomy of citizens turned out to be a value that was unable to compete effectively against the cult of mundane curiosity and a tendency to deem information privileges absolute. Open access wait periods were also weakened by their legislative imperfections. After a few years of being in force, they were effectively faded out of the legal order. This brought closer the perspective of going back to the original framework formula of access constraints, although clearly worded differently. A broad normative approach would have the Act stating that when providing access to documents, the archives shall give proportional respect to interests protected by the law, which may be affected by interested party’s accessing the content of the documents. The final archives’ struggle with conundrums and dilemmas of information freedoms and rights, including predictions of transformation of legal regulations, should be perceived as a stage coming to an end. Future methods of information creation and circulation are not fully cognizable, neither is the capacity to capture it – including the “perpetually” important. The rivers of communication flows seem to drift away from archives – such as they are. Thus, the future management of accumulating historical information stock is uncertain and its actors unknown.