Personality protection in the context of archiving has a specific feature, namely that it is often impossible to clearly determine whether or not a particular case involves a living person. For this reason, archival law introduces mechanisms in which the protection of both the living and the deceased intertwine. A typical and most striking example is the institute of closure periods. This chapter introduces the tool of closure periods in international comparison using what is probably the most elaborate system developed in the French archival sector. The precisely structured system of closure periods in France has a number of inspirational moments that can be used in a wide range of other archive systems across countries that often suffer from significant deficiencies in this field.

Closure periods, however, are mentioned in this chapter primarily in the context of the analysis of other personality and privacy protection tools relating to the archival sector.Footnote 1 But similarly, some other protection mechanisms address the living and the deceased inseparably, as is the case, for example, of the French system of derogations to access, under which it is often impossible to determine whether the persons concerned are living or deceased. Alternatively, some archival mechanisms for the protection of personality and privacy may be applied similarly to living and deceased persons, such as the public interest test, which will be addressed in detail using the example of the United Kingdom. In this chapter we take a detailed look at the sophisticated UK system of public interest testing in the area of access to information, records, and archives, and the protection of data they contain, which takes place on several levels. One of those levels is directly tied to the so-called historical records, the main collection of which is maintained in archives.

3.1 France: General and Individual Derogations and Differentiated System of Closure Periods—Liberal-Centrist Approach

The French archival system applies several tools to protect the personality and privacy of the actors of archival materials. One of the tools at the basic level, it is the system of closure periods. On the one hand, France liberalised access to records, in a ground-breaking move in 2008, when it removed these general periods which prevented access to the archives for 30 years after the record was created.Footnote 2 Not only in this respect, when France has followed a much more liberal trend than most other countries, but also through the introduction of other tools, the conclusions reached by Livia Iacovino and Malcolm Todd cannot be seen as valid, even though their study was published just before the removal of the 30-year closure periods.Footnote 3 However, France has maintained several closure periods for certain selected groups of archives.Footnote 4

The specific access regime subject to closure periods applies to those groups of archives that enter the field of personality protection from different sides. Records containing matters of medical privacy constitute a special group of material. These may be disclosed 25 years after the death of the person concerned. If the date of death is unknown, the period is determined to 120 years after the date of birth.Footnote 5 In the broadest sense, however, the protection of personality is to be implemented by the provision declaring a time limit for access to archives concerning a person’s private life (“protection de la vie privée”). This period is 50 years after the creation of the record.Footnote 6 Apart from this general period, for certain types of records concerning personal privacy, the periods are even longer. At the earliest, 75 years after their creation or 25 years after the death of the person concerned, records of a statistical nature collected by means of questionnaires and containing data on a person’s privacy may be disclosed.Footnote 7 The same period also applies to access to police records, general part of court files, and registers of births and marriages. In the case of minors, the period is extended to a full 100 years.Footnote 8 The extremely long 100-year period (or 25 years after the death of the person concerned) applies to certain court files, such as those relating to intimate sex life. Hervé Lemoine (the highest representative of French archival sector in 2010–2017) and Bruno Ricard, in 2019 the newly appointed Director of the French National Archives, with an allusion to GDPR, aptly called these closure periods protecting records relating to private life “temporary right to be forgotten” (“droit à l’oubli temporaire”).Footnote 9

As we can see, France is implementing a very detailed and structured system of closure periods, which is defined in the Heritage Code (Code du patrimoine), that is, directly in the legislation regulating the archival sector. However, this system of closure periods is not the only means by which the protection of personality in archives is implemented. The second level of protection is represented by the French specific system of access to public archives under the so-called accès par dérogation.

3.1.1 France and the Model of General and Individual Derogations

Bearing in mind that the issue of balancing two principles and citizen rights, that is, protection of personality rights and privacy, on the one hand, and open access to public records and information on the other, is always at the heart of the problem, French archiving and the public administration in general introduced a second institute to counterbalance the restrictiveness of closure periods. As early as the 1970s, France passed a law on improving the relationship between public administration and the public, declaring a radical openness of access of records created by public administration to citizens.Footnote 10 Yet, this trend of promoting a radically liberal, open, and transparent access to records produced by public administration can be observed in France for much longer, at least since the Enlightenment and the French Revolution.

The French specific system of access to public archives under the so-called accès par dérogation is intended to provide a sufficient counterbalance of free access to information on one side and data protection, including protection of personality and privacy, on the other. Under certain circumstances, it allows access to archival records subject to closure periods. However, this system itself seeks to implement the protection of personality and privacy. This is reinforced, among other things, by the fact that it distinguishes two types of access under derogations, namely general derogations and individual derogations, with the latter forming the larger part.Footnote 11 Under individual derogations, access is granted exclusively to a particular requestor (it is strictly prohibited for the requestor to enter the research room accompanied) after taking into account not only the nature of the requested records but also the personality of the researcher, their motivation for access, and purpose of research. The right to decide on access is then reserved directly to the relevant ministries. The basic principle when assessing requests is that access is provided to the extent that the interest in consulting the records does not cause serious harm to the interests the law intends to protect.Footnote 12 This includes, among other things, the protection of the personality of those concerned in the archives. Summary statistics show that,Footnote 13 on average, every year the French public archives receive between 3000 and 5000 requests for individual derogations, and the percentage of requests granted has oscillated around 90% in the last decade.

The second option is the approval of a “general derogation” (“dérogation générale”), which opens the archival material in question to all requestors or, in some cases, to entire categories of requestors or research purposes (scientific and historical research, public statistics). Overall, however, very few such derogations have been granted in the history of the French archives, and the vast majority of the material dates from the period during or just after World War II. This fact was most recently criticised by Christine Nougaret, the then vice president of the Superior Council on Archives (Conseil Superieur des Archives), the advisory council of the Minister of Culture and Communication for the field of archiving.Footnote 14 But as early as 1996, an extensive report edited by Guy Braibant, commissioned by the then French Prime Minister Édouard Balladur, made one of the recommendations aimed at increasing the openness of archival holdings to extend the scope of the general derogation institute to the most recent documents, those that were still subject to the 30-year closure period in France at the time and which were not yet subject to general derogations.Footnote 15

To my knowledge, only 23 of these general derogations have been granted in total since 1979.Footnote 16 I am only aware of four such cases of derogations granted after 2015. For the purpose of illustration, let us look at some of the approved general derogations.

In 2009, census archives were opened under this regime up to and including the 1974 census. However, this access was not unlimited, but the materials were made available only for the purposes of public statistics and scientific or historical research, not for the purpose of new use of the data, especially for commercial purposes.Footnote 17 Thus, the same exemptions that appear in the European General Data Protection Regulation (GDPR)Footnote 18 in relation to allowing specific regimes for the processing of personal data resonate here as well. If this general derogation were not approved, a period of 75 years would apply, that is, as of 2020 the 1936 census would be the “youngest” accessible (in the twentieth century, census in France took place in 1901, 1906, 1911, 1921, 1926, 1931, 1936, 1946, 1954, 1962, 1968, 1975, 1982, 1990, 1999). A specific access was granted for the 1946, 1954, 1962, 1968, 1975 census—for these censuses, which are subject to access under general derogation, only consultation is allowed, only in the archives research room, and not remotely via the web.

In 2015, a full 70 years after the end of World War II (!), access was provided to the archives of extraordinary courts under the Vichy regime and the period of Provisional Government of the French Republic (1944–1946), archival fonds of the central administration of the Ministry of Justice related to cases of extraordinary courts under the Vichy regime and the period of Provisional Government of the French Republic, together with police investigation materials from 1939 to 1945, police investigations from 1945 to 1960 relating to matters from 1939 to 1945, prosecution and trial of war crimes in the French occupation zones in Germany and Austria, and finally the archives of the war and maritime courts from 1939 to 1945.Footnote 19

The extremely long time it took to open material so vitally important for French history from the time of World War II and just after its end, is very surprising, all the more so because it took place in a country with a continuous democratic regime and strong liberal tendencies in the field of archiving, which resonate, inter alia, in the aforementioned abolition of the general 30-year closure periods, that apply, even if their lengths may slightly differ, in a considerable part of the world. In this context, it is worth noticing the analogy with the current opening of Vatican archives as in March 2020, Pope Francis II opened access to archives from the time of the pontificate of Pius XII (1939–1958) maintained in the Vatican Apostolic Archive.

In 2017, the opening of archival records from the Klaus Barbie trial, also known as the “Butcher of Lyon”, attracted considerable attention among the French public.Footnote 20 Klaus Barbie, a German member of the SS and SD, who, during World War II, operated in the occupied Netherlands and was later assigned to France, where he was stationed in Lyon as the head of the local Gestapo from 1942–1944; he became known for his extreme brutality, torturing women, children, and members of the resistance. After the war, he cooperated in Germany with the US and British secret services and benefited from their protection (his value consisted mainly in infiltrating and spying on the Communist Party in Bavaria). After the War, however, France did not strive hard to have Barbie extradited, presumably due to concerns among some senior French officials that Barbie’s testimony about their activities, such as cooperating with the Gestapo during the war, might discredit them. As a result, Barbie was not extradited to France. He then lived in Bolivia and in 1966 became a paid associate of the West German secret service, the Bundesnachrichtendienst (BND); among other things, he was involved in the arms trade of the Bundesrepublik with Latin America, as German historian Peter Hammerschmidt proved a couple years ago.Footnote 21 In the 1970s, however, Nazi hunters tracked him down in Bolivia, and in 1983, Bolivia finally extradited Barbie to France. The trial began in 1987, during which time Barbie’s testimony revealed that quite a few respected citizens had collaborated with the Nazis. In the same year, he was given a life sentence. Klaus Barbie died in prison in 1991. The very disclosure of archives from France’s first-ever trial of crimes against humanityFootnote 22 was greatly accelerated by the French public opinion.

Another notable case of approved general derogation concerned the archives relating to the case of Maurice Audin (1932–1957). Maurice Audin was a French mathematician at the University of Algiers, a member of the Algerian Communist Party and a participant in the struggle for Algerian independence from France in the Algerian War (1954–1962). In 1957, he was arrested by the French and later officially declared missing. It was not until 2014 that France officially acknowledged that he had died in prison, and it was not until 2018 that French President Emmanuel Macron officially admitted that Audin had been tortured in prison and had either been executed or tortured to death.Footnote 23 Audin was among those affected by the cruel inhuman conduct of French troops in Algeria, which, after all, eventually led to a reversal of French public opinion and the decision of the then French president, Charles de Gaulle, to act towards the recognition of Algerian independence. Audin’s body was never found.Footnote 24 It was as late as 2013 that access was provided to the first part of the records related to the Maurice Audin caseFootnote 25 in the form of a general derogation; and it was not until 2019 that access to entire documentation was opened, following President Macron’s declaration of 13 September 2018 on the death of Maurice Audin, in which he agreed to opening all archives relating to persons who disappeared during the Algerian War, including the Audin case material.Footnote 26

Most of the general derogations relate to the archives maintained in the French National Archives. However, they can also be utilised by the Ministries of Defence and Foreign Affairs for “their” archival records. Thus, not long ago in 2018, access was provided to materials preserved in the Archives of the Ministry of Defence of France relating to the Minerve submarine case, which went missing with 52 sailors on board in 1968.Footnote 27 The disclosure of the then exactly 50-year-old archives (until then, the archives were only opened in 2007 for Christophe Agnus, the son of one of the drowned officers based on an individual permission of the French president of that time, Nicolas SarkozyFootnote 28) was initiated by Hervé Fauve, the son of the submarine commander. The shipwreck was not found until July 2019. However, the open archives containing, among other things, documents from the investigation into the sinking of the submarine did not provide any further evidence to establish the cause of the shipwreck.

In both individual and general derogations, the possibility of reproducing materials, including the modalities of using the researcher’s own reproduction devices, cannot be excluded in advance. In the case of individual derogations, the researcher’s access request should also indicate whether they intend to reproduce the records, which is then commented on not only by the records creator, but also by the Service interministériel des Archives de France (SIAF), the central French governing body for archives under the Ministry of Culture and Communication.Footnote 29 In case the researcher disagrees with the decision, the matter may ultimately be examined, on request, by the Committee on Access to Administrative Documents (Commission d’accès aux documents administratifs, CADA), whose task is to oversee the implementation of the rules on free access to official records and public archives, as well as the specific area referred to in France as the “new use of public information” (“réutilisation des informations publiques”) used in French legislation. Although the French terminology distinguishes between the terms “communication” and “consultation”, even in the case of individual “consultation” of records in the CADA research room, the Code on the relationship between the public and the administration (Code des relations entre le public et les administrations) does not exclude the possibility of the researcher using their own reproduction device, such as a smartphone, tablet, camera, and so on.Footnote 30

Specific access to archives under individual and general derogations for the whole public or certain categories of researchers is one way to implement efforts to protect personality, including private life, while providing access to archival records to the extent possible. Although some of the presented tools, applied for example in French archives, may seem to be an appropriate solution to the whole problem, the situation is complicated and complex and the seriousness of the risks of personality protection in archives is not negligible. For example, the premature disclosure of census records for individual consultation inside the archives research rooms raises significant questions. In this case, France implemented the model of general derogations and in 2009 provided premature access to the census data up to and including 1974. Unlike many other countries, France does not anonymise these materials. I shall provide a detailed analysis in comparative international perspective of access to census archives in Chap. 7.

3.2 United Kingdom: Public Interest Test, Proportionality of Interests, Common Law, and Confidentiality—Decentralist Approach

Is it justified, and if so in what sense, to describe the British model as a decentralist approach to opening access to archival records and protecting personal data and privacy therein? What are its specifics?

The year 2000 marked a turning point in the policy of access to public records, archives, and information in general, as the Freedom of Information Act (FOIA) was passed.Footnote 31 The Act has taken over the competence to regulate access to information and, with it, to public records. Unlike the French model, the British model does not create a system of structured, precisely defined periods for access to particular categories of information and records. A specific feature of the British model is the introduction of a multi-layered and multi-stage public interest test, which takes place at several points within the records management and is performed by different entities. There are several different forms of testing.

3.2.1 Public Interest Test: Freedom of Information Exemptions

At the first level, the testing is based on the general right of the public to virtually immediate access to information. However, the FOIA provides for a set of certain categories of information constituting exemptions from this requirement of immediate access. These exemptions are of a dual nature. First, there are the so-called absolute exemptions.Footnote 32 In their case, the public authority is not obliged to disclose the information and does not have to carry out any further assessment. These exemptions include, for example, information accessible by other means, court records, and information held in relation to court proceedings, information provided in confidence, and certain other information including personal information for the lifetime of the persons concerned. The second group consists of “qualified exemptions”, which include, for example, information intended for future publication, health and safety information, environmental information, personal information relating to a third party, business interests, and certain additional information.

For these qualified exemptions, an elaborate public interest test process, implemented by public authorities including archives, has crystallised over time in the United Kingdom and is worthy of closer attention.Footnote 33 In addition, the British system has divided all exemptions into two basic categories. The first consists of exemptions based on the type of information concerned (“class-based exemptions”). In this case, the relevant public authority does not have to provide further arguments as for why it will not disclose the information, what interests would be harmed by the information disclosure, and therefore does not have to carry out a public interest test. Almost all absolute exemptions are “class-based”. The second category are exemptions based on harming certain interests (“prejudice-based exemptions”), in which case the public authority must demonstrate that and how disclosure of the requested information or record harms the interests specified in the relevant exemption.Footnote 34

The public interest test itself consists in a public authority weighing the harm that disclosure would cause to the legitimate interests against the public interest served by disclosure of the information, always considering current circumstances and context.

Public interest test is carried out independently by each relevant public authority, which is an important element of the British decentralised model. The specificity of this model is then reflected in the existence of a considerable number of methodologies and codes of practice. The need for them is also given by the fact that public interest testing is a process that the British Anglo-American common law shapes not only by statutory provisions but in a significant way also by the case law created by the judicial system through precedents. One of the significant precedents in the area of public interest testing for access to information, records, and archives and for assessing prejudice-based exemptions is the 2006 case of Christopher Martin Hogan and Oxford City Council v. the Information Commissioner, which is also regarded as an important reference by the UK Information Commissioner’s Office (ICO), the United Kingdom’s independent authority for information rights, access to information and privacy.Footnote 35

When testing the public interest, the public authority must take into account a wide range of public interests. On the side of the public interest in information accessibility, there are, among other things, moments such as the consideration of transparency. “There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process.”Footnote 36 Another reason for making information accessible is the public interest in a topic that has a broad social impact, such as the implementation of public policies. Other motives may also be the possibility of controllability, which is conditioned by the availability of all relevant data, the promotion of good decision-making by public bodies and the like. If, for example, there are suspicions of maladministration, breaches of the law, and so on, the public interest in open information becomes very important compared to the countervailing public interest in, for example, protecting the personal data of third parties, business interests, and so on.

In the case of “prejudice-based exemptions”, which include areas such as foreign relations, defence, economy, public affairs, business interests and the like, the aforementioned case of Christopher Martin Hogan and Oxford City Council v. the Information Commissioner plays an important role in British law. The ICO, referring to the court judgement in this case, has outlined the procedure that should be applied in the case of a prejudice test.Footnote 37 First, the public interests at stake in the case in question must be identified. In the second step, the substance of their hypothetical harm should be identified, the basic issue here being “to be able to show that some causal relationship exists between the potential disclosure and the prejudice and that the prejudice is … ‘real, actual or of substance’”.Footnote 38 The causal link should then have a logical basis and should not be a mere hypothetical assumption. Finally, the likelihood that such harm would occur should be assessed. In doing so, the circumstances in which such harm could occur, the degree of certainty with which this harm could be caused, and the frequency of the potential occurrence should be considered. British common law does contain precedents that have grappled with how to precisely define the concept of likelihood of harm, how to measure it, differentiate it, and determine its role in testing for potential harm.Footnote 39 The United Kingdom’s ICO drew on a judgement in the court case that differentiated, in principle, between two basic measures of probability. The stronger measure occurs when it is more likely that harm would occur if the information is disclosed than that it would not (the “would” option).Footnote 40 The lower probability applies when, even though there is a serious risk of harm, it is not possible to say whether the likelihood of harm in the event of disclosure is greater or lower than 50% (the “would be likely” option). One of these two options should be explicitly mentioned and justified by the public authority deciding not to disclose the information.

At the very heart of the public interest test for qualified exemptions, or prejudice-based exemptions, is the process of weighing the various arguments and public interests by public authorities, detecting the weight of each, and disclosing the information if the public interest in disclosure prevails.Footnote 41 The weighing takes into account criteria such as the likelihood of harm to the relevant public interest and the seriousness of the potential harm. The ICO mentions one court case from 2010 in which the authority itself was involved.Footnote 42 It was a dispute over the disclosure of data on animal experiments carried out at Oxford University. The University did not want to disclose certain data on these experiments on the grounds that it could endanger the safety of some of their staff by protectionist extremists in the form of bombings or arson. The court acknowledged this, stating that the risk to university employees outweighed the harm to the public interest in disclosure.

This weighing of the various public interests can be expressed in other words as a proportionality test. A similar proportionality test has crystallised in British law in other areas of data protection, including personal data protection and a specific principle with which British law operates, namely the duty of confidentiality. Nevertheless, these tests are not identical, and in some respects their emphasis goes in the opposite direction, as will be seen shortly.

3.2.2 Breach of Confidentiality: Public Interest Test as Proportionality Test

When deciding on access to records, archives, and data protection, public institutions, including archives, have to take other perspectives into account and perform the public interest test at other levels as well. The “duty of confidentiality” is an important element. Here, too, the specificity of British law, namely the area of British common law, comes into play in a significant way. The principle of confidentiality is, however, also reflected at the level of the law, since one of the notable exemptions to the right of access to information is situations where the opening of information provided to a public authority by an individual, but also by another public authority, would mean a failure to respect the confidentiality envisaged and assumed by the individual or authority when communicating with the addressee.Footnote 43 At the same time, it is an exemption which is not limited in time but unlimited in duration. For this reason, archives must also take into account the duty of confidentiality and test public interest in situations if a possible breach of confidentiality is involved.

This, of course, does not mean that every piece of information exchanged between citizens and public authorities is confidential. This is where the British common law comes into play, in which the concept of confidentiality and breach of confidentiality has crystallised. In principle, the information must have the quality of confidentiality. This means that it must not be trivial, it must not be accessible in any other way, it must be worthy of protection in the sense that someone has a genuine interest in keeping the content of the information confidential.Footnote 44 At the same time, the disclosure of such information would be actionable. Although confidentiality of information is an absolute exemption under FOIA (see above), even in its case, a public institution should conduct a public interest test and consider whether the public interest in breaching confidentiality outweighs the public interest in a particular case. If a public institution can rely on “public interest defence” by opening certain information otherwise provided in confidence, British common law provides for non-actionability.Footnote 45

This is a very complicated area of law that is constantly evolving in view of the continuous changes in the common law, and has recently evolved quite dynamically. The ICO summarises the development of important judicial precedents in this area, particularly after 2000, and recent developments in the UK courts’ perception of confidentiality.Footnote 46 As recently as the 1990s, British courts generally recognised situations in which the public interest in opening information outweighed the duty of confidentiality; these were exceptional cases when access to the information would produce evidence of breach of law, misconduct, corruption, and the like. At the turn of the millennium, the existence of similar serious cases was challenged by the courts. Soon after the new Human Rights Act was passed,Footnote 47 which implemented the European Convention on Human Rights into British law, further significant developments occurred. Newly, the courts have begun to take more substantial account of the right to protection of private and family life, but on the other hand also the competing right to freedom of expression, access to information and its dissemination, that is, the rights defined in the European Convention.Footnote 48 This eventually led to the public interest test becoming a proportionality test. As one of the court statements succinctly put it: “Before the Human Rights Act came into force the circumstances in which the public interest and publication overrode a duty of confidence were very limited. The issue is whether exceptional circumstances justified disregarding the confidentiality that would otherwise prevail. Today the test is different. It is whether a fetter of the right of freedom of expression is, in the particular circumstances, ‘necessary in a democratic society’. It is a test of proportionality.”Footnote 49

Today, therefore, two public interests are weighed against each other: On the one hand, the public interest in providing access to information, and on the other, the public interest in maintaining its confidentiality. However, as the ICO points out, the public interest test in this case is different from the public interest test for qualified FOIA exemptions as discussed above. In the system of qualified exemptions, the public interest works in principle in favour of opening information, the closure of which—that is, obtaining a FOIA exemption—will only occur if the public interest in its non-disclosure prevails. In the case of the duty of confidentiality, the opposite is the case: The public interest in maintaining confidentiality is presumed to prevail, except in situations in which it would appear that opening access to the information would carry more weight in the relevant circumstances.Footnote 50

The public interest grounds for breaching the duty of confidentiality are multiple and it is impossible to provide an exhaustive list. Nevertheless, let us take a look at just a few of them. One of them is the public interest that—as the ICO defines it—“public authorities remain transparent, accountable and open to scrutiny, for example where disclosure would further public understanding of, and participation in the debate of issues of the day; enable individuals to understand decisions made by public authorities affecting their lives and, in some cases, assist individuals in challenging those decisions; or facilitate accountability and transparency in the spending of public money.”Footnote 51 Another situation in which confidentiality can be breached is when a breach of law, abuse of authority or corruption is revealed. In such situations it is not necessary to be certain, but according to the methodology of the British authority on access to information and its case law, a serious suspicion based on a reliable source is sufficient.Footnote 52 Another reason for breaching confidentiality is, for example, the public interest in protecting security.

This, naturally, does not mean that the duty of confidentiality should be disregarded. On the contrary, too free handling could lead to a breach of trust of individuals or legal entities entrusting information to public authorities. It is therefore always necessary to look at the wider context and consider, as the ICO highlights, “how the relationship of trust operates to serve the public interest”.Footnote 53

It should also be added that in the United Kingdom there exist a number of categories of personal data, or records containing such data, whose confidentiality is explicitly declared and therefore are subject to special protection under certain specific regulations, which the archives need to take into account when considering whether or not to disclose the information requested. Indeed, there are a number of other specific regulations in the United Kingdom setting out specific access systems and restrictions for certain special categories of data, far from being limited to personal data. In 2005, the then Department for Constitutional Affairs found a total of 210 such regulations preventing access to information.Footnote 54

Staying in the area of personal data, a typical example is data relating to sexual offences, in whose case a specific law directly stipulates that no data that could lead to the victim’s identification may be disclosed during the victim’s lifetime.Footnote 55 The same is the case for data on abortions,Footnote 56sexually transmitted diseases,Footnote 57 medical records in general, and some other similar circumstances.

But even in these cases, British law leaves room for public interest considerations. Thus, even in the case of medical records—although the common law considers the information in them to be confidential—the same common law has established the practice that in exceptional cases the public interest in opening such information prevails and the duty of confidentiality can therefore be breached. This is also consistent with the UK Department of Health Code of Practice on Confidentiality in Medical Records, which defines the public interest in this area to mean that under certain specific circumstances, the public interest in providing access to data may outweigh the individual interest in maintaining confidentiality.Footnote 58 In doing so, the data controller must assess the potential harm that may occur to both parties and interests (the interest of the society vs. the interest of the individual) by opening the data. At the same time, it clearly points out that in situations when there is no explicit consent of the person concerned to the disclosure of information relating to them and when there are no legal situations in which the data are to be disclosed for various official purposes, there must be a genuine “overriding public interest” in such disclosure to third parties.Footnote 59 Such a public interest was then found by the common law in cases as preventing, detecting, or enabling the conviction of a serious crime, preventing harm or damage to another person. In any case, a detailed record shall always be made of the entire process of such disclosure, with detailed justification. In addition, where possible, such disclosure should always be consulted with the individual concerned.

The British legal system also covers specific situations, such as breaches of confidentiality in cases of whistleblowing by employees, in similar and precisely defined cases (suspected breach of the law, risk to health or safety of persons, risk of damage to the environment and some others).Footnote 60

Naturally, situations such as the disclosure of personal data from medical records for scientific research are also reflected. The British Department of Health’s Code of Practice gives an example of disclosure in the following cases.Footnote 61 The key here lies in the application of the principle of proportionality. For example, in a situation that would involve a disproportionate effort to obtain consent from the patient and in which, at the same time, the likelihood of harm to the patient’s interests by disclosing their medical data for research purposes would be negligible, the materials may be opened for research purposes without the patient’s consent.

The British Department of Health later issued further guidance on how to apply the principle of disclosure of medical records in situations in which exists an overriding public interest in such disclosure.Footnote 62 It describes the entire procedural process, gives details on what a public interest assessment should look like, what information needs to be gathered, and provides specific examples. The confidentiality of personal data can be breached, for example, when a patient refuses to inform their sexual partner that they suffer from a sexually transmitted disease. It characterises how to proceed when assessing what constitutes a serious crime, that constitutes one of the grounds on which confidentiality can be breached. Finally, it provides some specific scenarios that can occur and describes how to deal with them.

3.2.3 “Historical Records” and Archives: Second-Level Testing

At an imaginary second level, ensuring data protection or access to information and records, including the proportionality test of public interests, is carried out at the level of so-called historical records. If such is the case, the archival system common in most countries usually comes into play, namely the system of closure periods. In the United Kingdom, a public record becomes “historical” 20 years after its creation, regardless—and that is essential—whether it is in live administration or has already been transferred to the archives for permanent preservation. The vast majority of these historical records were deprived of the possibility of becoming exemptions to the rule of open information, and the law has thus made public records with the status of historical records accessible to the public.Footnote 63 In its original version, the law set a period after which public records become “historical”; the original period was 30 years, which was subsequently reduced in 2010 to the currently still valid 20 years.Footnote 64 The same period also applies to the obligation to transfer records of permanent historical value to the archives for permanent preservation.Footnote 65 A reflection on the seriousness of the issue of closure periods and their (disproportionate) duration is also evident in the documentation created by the activities of the Advisory Council on National Records and Archives, be it meeting minutes, memoranda, correspondence, and other documentation. The roles of the Advisory Council on National Records and Archives will be discussed below.Footnote 66

The status of “historical records” thus fulfils the function of one of the key guarantees of the timely opening of public records and society’s information; at the same time data protection also applies at this stage and at the stage of management of historical records. How do both considerations play out?

They appear as possible exemptions, as we have already discussed above. Both public authorities and citizens can request them. We will now stay within the sphere of records and archives in the care of the British National Archives. A key role is played by the “Advisory Council on National Records and Archives”, an independent advisory body on records maintained by the British National Archives.Footnote 67 Based on the Council’s opinions, the final decision regarding such requests is then made by the Secretary of State for Digital, Culture, Media and Sport.

The Advisory Council on National Records and Archives assesses, in principle, three possible basic situations of exemptions from access to public historical records and, at the same time, carries out the second wave of triple testing and weighing of the public interest. The following three situations commonly occur:

a. Public entities (in this case within the competence of the National Archives) may request an extension of the 20-year period after which they should transfer their records to the archive (applications for retention).Footnote 68

b. Second, the same public entities may request the transfer of historical records to the archive in a closed form in a state of non-disclosure to the public (applications for closure), that is, request an extension of the period for making historical records available to the public.Footnote 69 This point is actually the second stage of the assessment of “qualified exemptions” from general access to information, as introduced in the British law by the Freedom of Information Act (FOIA) and discussed above. Or rather, it is an assessment of the legitimacy of the exemptions by a second independent authority. In the first phase, it is the record creator who requests the application of a qualified exemption and assesses its legitimacy. The second phase occurs when the creator transfers “historical records” (usually 20 years after their creation) to the archive and requests a qualified exemption even after their transfer. At this point, the scene is entered by the Advisory Council on National Records and Archives whose competence it is to assess such requests. At least at a central level, the British National Archives seeks to achieve the earliest possible disclosure of archival records to researchers by persuading creators to apply exemptions only to the minimum extent necessary and for the shortest possible period of time, with the proviso that they should (but need not) set a specific point at which the records can be opened to the public, or a point at which further review can take place.Footnote 70 In cases when it is not possible to determine the exact moment of providing access to the archives at the time of their transfer, the National Archives and the Advisory Council seek to apply the “rolling 10 years” rule, that is, the reasons for restricting access to the archives should be re-examined every 10 years.Footnote 71 A new review also occurs when a research request is made for access to restricted material.

c. Natural persons: researchers may request access to historical records subject to exemptions and still restricted to the public.Footnote 72

In all three of these cases, the Advisory Council weighs the public interest for and against granting an exemption, either in the form of an extension of the period for transferring records to the archives under (a), or in the form of an exemption from access to records under (b), or an exemption from opening otherwise restricted records (c).

But what does this general setting look like in some specific situations and applications? For example, most requests under (c) usually seek access to investigation or court files of criminal cases, most often historical murder cases.Footnote 73 In such cases, the Advisory Council commonly weighs the public interest in disclosure of the material against the potential harm to the victims or their relatives. For unsolved crimes, the risks to the successful completion of criminal proceedings in the future are also taken into account. A large part of FOIA requests under (c) seek disclosure of information that, if opened, could harm the safety or physical or mental health of an individual.Footnote 74 There is also interest in information whose disclosure could harm international relations or ongoing criminal proceedings. In terms of the number of requests, for example, in FY 2016–2017, the Advisory Council handled 400 FOIA disclosure requests under (c), almost half as many as the year before. When granting or refusing access, the Advisory Council usually requests an up-to-date opinion, including a specific justification by the record creator, and, if necessary, the opinion of the relevant department of the National Archives. In a large number of cases, the Advisory Council accepts the arguments put forward by the record creator.

In the case of (a), the reason for a large part of the authorities’ requests for an extension of the period for transfer their records to the archives, is the protection of security. A smaller percentage indicates protection of business secrets or ongoing public investigations as reasons.

For requests under (b), this is, as already mentioned, the second stage of the public interest test in the case of requests to disclose historical records even after they have been transferred to the archives. It is worth mentioning one particular figure. In the FY 2018–2019, the Advisory Council accepted a total of 86.5% of the requests from creators without further examination, that is, it was satisfied with the vast majority of the justifications provided by the creators, and this trend has also been evident in recent years.Footnote 75 In situations when requests were further examined, the Advisory Council usually only requested a more detailed justification and did not request a change in its own conclusion on the (in)accessibility of the material. Overall, the Advisory Council notes relative satisfaction with the justification of “qualified FOIA exemptions” by record creators, although it does identify some issues and sees improving the quality of justifications provided as one of its goals. At the central level, the National Archives stresses that this system must not be abused or overused by the record creators; the requests must be specific. For example, it should not occur that the record creator requests that broad subject groups of records be withheld simply because only a small part of the particular record group requires longer protection.Footnote 76

Some statistical numbers are also interesting. For example, in FY 2018–2019—but the figures have been relatively similar in recent years—the Advisory Council received 5843 requests for the transfer of historical records to the archives in closed form, of which nearly 400 were questioned and further information was requested by the Advisory Council, resulting in only 13 requests being withdrawn by the relevant authority. In the same year, there were 970 requests for extensions to the 20-year period for transfer of records, of which only 4 were withdrawn following the Council’s conclusions.Footnote 77

More than a few of the above-mentioned forms of public interest testing in the case of an assessment by the Advisory Council on National Records and Archives as to whether or not to disclose records, are situations when the records in question also contain personal data.

Let us conclude by looking at some of the issues that fall squarely within the area of disclosure and protection of personal data, not only in British archives but in public administration in general.

3.2.4 Protection and Disclosure of Personal Data in UK Archives and Public Administration

For the protection of personal data in records and archives and closure periods, the protection generally applies during the lifetime of the person concerned (closure period of lifetime). British archival science after the turn of the millennium concluded—in view of the usually very difficult task of ascertaining whether or not the person concerned in the archives was still alive—that it would rely on a certain exhaustive number of years corresponding to the average life expectancy, and decided on a period of 100 years.Footnote 78 Frequently in cases when the age of the person is unknown, the default assumption has been that the person concerned was 16 years old at the time of the record creation—if an adult is concerned. Under certain circumstances, personal data may be disclosed earlier. One situation in which this may be the case is when it is made available for the purposes of science and historical and statistical research. However, a number of rules, as primarily defined by the UK Data Protection Act, must be followed.Footnote 79 In general, the right to privacy must not be violated and the principle that disclosure is fair, lawful, and transparent must be respected. In case personal data are disclosed, all safeguards must be complied with and, in principle, such disclosure must not cause substantial damage or distress to the data subject. Although the British Data Protection Act does not explicitly define the term “substantial damage or distress”, methodological materials or British common law do characterise it in some way. They see substantial damage mainly in terms of financial loss or physical harm, and they understand substantial distress at the mental level, for example, when emotional or mental pain, significant distress or resentment is caused to the subject, or when a legitimate impression is given that an immoral act has been committed.Footnote 80 Passages from the British Freedom of Information Act can also be used; these define one of the exemptions to the right of access to information as data that would jeopardise a person’s physical or mental health or safety.Footnote 81

The protection of personality and personal data in records and archives is included within the scope of the duty of confidentiality and the public interest test, as discussed in detail above. However, this obligation represents only one of a number of other circumstances, conditions, that is, a part of the context in which the basic mechanism for testing the proportionality of the public interest in disclosure or non-disclosure takes place. The British Data Protection Act frames the whole process by the obligation that personal data must be processed lawfully and in a fair, proportionate way.Footnote 82 But what does it mean?

It is again the British decentralist approach that leaves such an assessment to individual public authorities, in one case to the archives. Archives have to consider a number of phenomena and related circumstances when deciding whether to disclose records containing personal data.Footnote 83 They must take into account the nature of the information that is to be disclosed, that is, assess its sensitivity with regard to the potential risk of harm to the public interest of the person concerned. The age of the information and its context are assessed, bearing in mind that the sensitivity of the information fades with its “age”, which the overall assessment should also reflect. The person whose data is concerned must not be forgotten. A different approach is applied in the case of working documents of political and public figures, on the one hand, and personal matters and records of a purely private nature, on the other. Another important factor is, whether the information has already been made available to the public, as such data should typically be available to the public.

Another circumstance that is usually placed on the scales of the proportionality of interests test is the manner in which the information is disclosed. A stricter regime and much more careful research must be carried out in cases when the data are to be disclosed to the general public, for example, on the web, and are not intended only for individual access, for example, in the archive research room. Ease of access to information thus stands out as one of the factors.Footnote 84 The argumentation on this point by the British National Archives is also remarkable. The difference is largely determined by whether the general disclosure, for example on the web, allows the use of fulltext search tools and it is thus possible, for example, to search archives, records, or information by names of persons or other criteria. One significant threat may also be mentioned, that of the increasingly significant risks associated with the use of automated remote methods of reconnaissance and mining of (personal) data made available in the online environment.

Similar forms of retrieval and mining of (personal) data, on the other hand, would not be possible in the context of individual access to records in, for example, the archive research room, assuming the absence of, for example, indexes or other search aids, especially those published in fulltext online. In the analysis of the British National Archives in the light of the Data Protection Act, the possibility of a mere individual consultation would meet the requirement of “fair and proportionate” access to data subjects, whereas online publication with the new option of remote searching of personal data would not. The reason for why access would no longer be fair and proportionate in this case is that by using name search tools in online access, the researcher may not be sufficiently aware of the archival context or age of the information found.Footnote 85

On a side note, a similar moment occurred in a recent case in the Czech Republic; in 2019, legal columnist Tomáš Pecina was fined CZK 50,000 by the Office for Personal Data Protection for publishing a database of court hearings containing information about the date of the hearing, the location, the name of the judge, and the names of the participants.Footnote 86 He obtained this data from publicly available content published in a database operated by the Ministry of Justice, which, however, includes data on ongoing or future hearings. He also published non-pseudonymised judgements of the Supreme Administrative Court, which also publishes them, but in full non-pseudonymised form only for 14 days, whereas in Pecina’s database their full wording was available permanently. Pecina’s database could also be searched by the names of the parties or judges, while the database of the Ministry of Justice only allowed searches by case file numbers.

When considering access to archival material—as the British National Archives points out—particular attention needs to be paid to photographs, drawings, and the like. Even photographs that are not linked to specific names may carry personal data, for example in that they show the persons concerned in certain situations (arrest, medical treatment, etc.). Similarly, personal data can be found in materials such as maps, plans, but also in digital records where one would not expect to find them, such as geographic databases. However, when assessing whether or not to disclose records, the record creators and the archives should also assess the data credibility, its accuracy, and completeness.Footnote 87 The implementation of the European Convention on Human Rights into the British legal system through the Human Rights Act 1998 has also had an impact on British law, and it is gradually reflected in the common law.

3.2.5 Post-mortem Personality Protection in the United Kingdom

Finally, let us briefly mention the phenomenon of post-mortem personality protection in the United Kingdom. Unlike, for example, Germany—as we have seen above—there is no general post-mortem protection, which also applies to the archival sector.Footnote 88 The FOIA does not provide a specific exemption from access to information for deceased persons. In the case of a FOIA exemption for personal information, the exemption then applies only to living persons. Post-mortem protection is thus only partially implemented in certain contexts and using other tools, some of which we have discussed in a different context above. It includes in particular the duty of confidentiality.

The duty of confidentiality in relation to the deceased is most often invoked in the United Kingdom in the case of medical records and information about the deceased’s health, but cases involving other records have also been addressed by the courts. An important factor is whether the information in question was originally received from the deceased person or from another public authority, as one of the conditions for exempting confidential information from FOIA stipulates.Footnote 89 In addition to medical records, the British ICO mentions banking or social care records as examples of record categories that may be subject to confidentiality even after a person’s death.

Cases can be found in the common law in which post-mortem personality protection at the level of the duty of confidentiality has been recognised. Let us mention one illustrative court case for all: In the case of Bluck v. the ICO and Epsom and St Helier University NHS Trust,Footnote 90 the plaintiff, the mother of the deceased daughter, requested access to sensitive personal data from the medical records of her deceased child. The defendant medical facility refused to release the data, claiming that some of the information was confidential. The plaintiff argued that this information had already lost its confidentiality since it had been published in the press, in the court statement, disclosed in correspondence with the plaintiff and so on. The Court therefore examined the records in question in the course of the proceedings and concluded that they contain information which had not yet lost its confidentiality and shall therefore not be disclosed to the plaintiff. At the same time, this judgement contains a detailed analysis of the question whether and in what form the duty of confidentiality can continue after the death of the person concerned (in the section “Did the Duty of Confidence Survive the Death of Karen Davies?”).

In addition to the conclusions on very little support under case law, the court decisions were significantly impacted by one of the arguments put forward by the ICO: One practical consequence of a concept that would link the end of the duty of confidentiality to the death of the person concerned would be that “any medical practitioner would then be legally entitled to publish information from the records of a deceased patient, possibly for financial gain”. Finally, it is worth mentioning one more point mentioned by the court: “The basis of the duty in respect of private information lies in conscience”. The court referred to the case of Coco v. A. N. Clark (Engineers) Ltd. and quoted the words of a High Court judge, Robert Edgar Megarry: “The equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust. The Statute of Uses, 1535, is framed in terms of ‘use, confidence or trust’; and a couplet, attributed to Sir Thomas More, Lord Chancellor avers that ‘Three things are to be held in Conscience; Fraud, Accident and things of Confidence’.”Footnote 91

Finally, the post-mortem protection and disclosure of personal data of the deceased in the United Kingdom also echoes the specificity of the British system; when assessing whether or not information about the deceased can be disclosed, even in cases of information provided in confidence, the data controller has to apply the public interest test and consider whether the public interest in disclosing the relevant information does not prevail in any particular case.

In the context of all public interest testing, and a number of assessments of whether or not archives or “living” records should be disclosed, the British approach is characterised by one very important and distinctive feature, namely that the identity and character of the requestor or researcher and their motivation for requesting disclosure are not taken into account. This represents an emphasis explicitly opposed to the setting that is applied, for example, in the case of the disclosure of archival material of the former state security in Germany in the Stasi Records Archive (Stasi-Unterlagen-Archiv) within the Stasi-Unterlagen-Gesetz. Here, the identity of the researcher plays a very important role and is put on the scales when assessing whether or not the records will be disclosed. In contrast, the United Kingdom’s ICO underlines within the FOIA: “Arguments that the information may be misunderstood if it were released usually carry little weight”.Footnote 92 It relies on the intent of the FOIA in that disclosure of information under FOIA means making it available to everyone, the entire public, and not just one particular researcher. And it also takes into account some case law.Footnote 93 In doing so, the ICO stresses that the public interest test is to also consider the public interest of the requestor.Footnote 94

3.3 Conclusion

In summary, the analyses to date show that at the heart of the issue of access to archival records containing data concerning personal privacy and other protected areas of an individual, there is a question of achieving a balance between data accessibility and their protection, while also preserving flexibility in the face of the evolving public interest in access to information. There are several models to address this issue. The above French solution represents a kind of centralist model for managing access to records and archives. First, there exists a central, detailed, and structured system of closure periods, imposing those periods on all entities for a certain part of public records, but the general 30-year closure periods have been eliminated. This system is complemented by a further centralist element approving individual or general derogations; the decision is once again made by a central ministerial body, which in the case of the absolute majority of public archives is the above-mentioned Service interministériel des Archives, or two other ministries of defence and foreign affairs.

At the same time, France represents a large group of countries that underwent a period of oppression imposed largely from the outside. A substantial part of the archives that were open to the general public in France even before the determined general period, originated from the period of Nazi occupation of France and the Vichy regime, which is also the case of Germany, where the specific access regime affects the archives surviving the activities of the security forces and repressive authorities of the former East Germany, as demonstrated above on the example of the disclosure of Stasi records. Central European countries went through two periods of dictatorship, first Nazi, then Communist. These countries then typically open the archives from both these historical periods in a special regime, earlier and on a more liberal scale than would generally be required. This access once again focuses on archival records created by the ruling forces of power and those organisations that participated in the repression.Footnote 95

All these countries thus faced a similar challenge when they needed to come to terms with a previous period of oppression or a totalitarian period of their history, and to do so it was essential for them to gain access to primary historical sources. The motivation for such opening of sources is poignantly expressed in the introduction of the preamble to the Czech Act on the Institute for the Study of Totalitarian Regimes and the Security Services Archive: “Those who do not know their past are doomed to repeat it”.Footnote 96

In this context, however, it should be stressed that in France, providing access under the specific regime of derogations to selected, often “sensitive” archives typically happens with a substantial time lag, usually many decades, when the impact of providing access to them in real life, shaping society’s views, and executing public policies are already very limited. This is a striking difference as compared, for example, with the Czech Republic as one representative of post-communist countries, which opened “sensitive” materials from the communist era very soon after its collapse and made them available as early as the period of transitional justice and the emerging new democracy.

However, it is also possible to find quite different models and one of them is applied in Britain. Its most prominent characteristic is something that resonates in some way in virtually every developed archival system, but which the British model of access has placed at the centre as the main pillar of the whole edifice of personality and privacy protection, including the area of archiving—public interest and proportionality testing of individual public interests. Unlike the French centralist solution, however, the United Kingdom heads in a considerably more decentralist direction. Moreover, the British model highlights one of the fundamental problems that almost every advanced system of access to archives must face in the end. It is the question of an appropriate and sufficiently transparent setting of control and decision-making mechanisms and an adequate guarantor, the body that shall monitor and decide on situations of specific access to archives.

The specificity of the British model of access to archives and data protection lies in the establishment of multiple, multi-layered, and multi-faceted testing and examining public interest in the area of access to public records and archives. This is done in several phases; the first phase is carried out by the record and information creator, and the second phase then in the case of historical records (i.e., in the British legal system, records created more than 20 years ago) by the archives and at certain points at the national level by a specialised independent body: the Advisory Council on National Records and Archives. This Council gives voice not only to administrative officers and representatives of the broad spectrum of public administration but also to archivists, historians, and journalists, that is, professional groups substantially represented within the Advisory Council. This diversified network is also joined by the ICO, the United Kingdom’s independent authority set up to uphold information rights, access to information, and privacy protection that provides its opinions, analyses, guidance materials, as well as legal actions. Ultimately, however, the entire justice system has a very important say, as common law and judicial precedents also form an important part of the British legal system.

In summary, the British approach is characterised by multi-faceted control and the existence of a range of mechanisms that guarantee the application of multiple public interests entering the field of access to records and information from different sides and perspectives. At the same time, the British system has a very elaborate and sophisticated notion of public interest in the area of access to information, records, and archives and the protection of data contained therein. A distinctive feature is the diversified system of testing at different levels and from different perspectives: testing public interests and their proportionality; testing the justification for the application of exemptions from the general right of free and immediate access to information; testing proportionality when assessing whether to breach the obligation of confidentiality; or testing the risks of harm to various interests entering the field defined on the one hand by the desire for maximum possible openness and transparency of public authorities, and by the need to protect data that deserve such protection, including the protection of personality on the other.

All these tests have a common denominator: Developments at all levels over the last two decades or so have led to the need to seek balance and proportionality in taking account of the somewhat conflicting public interests in access to and protection of information. At the same time, the British system is characterised—in contrast to, for example, the French more centralist approach—by a decentralist approach, where the public authority itself, in one case the archive, is the basic actor in the multi-layered assessment of access not only of information from “living” records but also of archival records. The British system allows it a very wide competence and expects its responsibility in testing, weighing, and assessing the diverse public interests in this field. However, thorough control mechanisms are in place, not only at the judiciary level but also in the form of expert advisory bodies, for example, for institutions at the national level it is the Advisory Council on National Records and Archives.

Finally, the British system seeks to implement equal access to requestors for access to public information and archival records, as the British Prime Minister Harold Wilson tried to promote in the 1960s when he cited the risk of creating animosity between a certain group of “vetted” historians as one of the arguments against allowing access.Footnote 97 The person of the researcher and their motivation should play virtually no role in the decisions on access to information. Underlying this attitude is the fact that the British system wants to see a responsible and intelligent citizen who does not need to have the contents of records and archives interpreted, explained, and possibly not made available, all for fear that the information in them might be misunderstood. Along with this, the British approach—unlike the above French model, which differentiates between general and individual derogations—works with the understanding that even when information or archival records are disclosed to one particular person, it is done with the knowledge that in such a case it can be disclosed to anyone else. This is also inherent in the intent of the British model, which continually stresses that access to information/archives should be framed at a general level by a fundamentally public and not private interest in opening a relevant piece of information. The British model of access to public information, records, and archives thus finds alien the concept to which the British themselves refer to as “privileged access” taking into account the person of the requestor and differentiating modalities of access to records according to the identity of the researcher, as implemented, for example, by the German Stasi-Unterlagen-Archiv.

All of the above-mentioned characteristics of the policy of access to public archives, as well as records and information, and at the same time their protection, can, at least in some respects, become quite inspiring for other archival systems, especially those that still lack a sufficiently well-developed policy and procedural setup for access to archives and data protection in them.