The Paradox of Archiving: Personality Protection and a Threat in One—Archives and Child Sexual Abuse

Abstract

Perspectives on the protection of the individual are usually based primarily on the question of how a person and their personality rights may be harmed by the retention and disclosure of data concerning this particular individual. Hence the intentions of the European GDPR to allow for “minimisation” and “storage limitation” when it comes to personal data and the correlating “right to be forgotten” (“right to erasure”). Although these intentions apply primarily to data controllers other than archives, most often of private law provenance, they also apply to archives. Along with this trend, however, the opposite perspective proportionally fades, which is the starting point of this chapter: Apart from the risks associated with the preservation and disclosure of personal data, archiving in the public interest is also one of the tools by which the protection of personality rights can be implemented, even enhanced. Permanent preservation of certain categories of personal data is not only necessary for various future research purposes and official interests, but in some cases such preservation becomes the key guarantee of the protection of personality as well as other human and civil rights. The author will demonstrate this thesis on some specific cases including a specific category of records testifying about sexual abuse inside and outside the Church and the protection of victim rights. An analysis of the opposite situation, in which personal data, especially in archival records, have been misused, will be discussed in more detail in the following chapters.

On a general level, it has always been the case that the best form of protection of certain data is simply to destroy the data in question or the medium. Misuse of personal data in records and archives can often occur a considerable time after their creation, as some of the examples mentioned above have indicated. Chapter 7, will provide more detail on several specific cases of such misuse and efforts to reduce personal data in records even before they are transferred to the archive for permanent archiving. These will concern mainly census records and their management. In this context, it is not without relevance to argue that any archiving, that is, long-term preservation of data with a vision of the preservation hypothetically lasting indefinitely, always poses a potential threat to the protection of personality and privacy of citizens.

In the coming years and decades, archiving will have to expose the issue of long-term and even permanent preservation of records more in the perspective of the risks of misuse of the data that archives maintain in their vaults. In this respect, archives mirror the phenomena that can be observed in the management of “live” records and information, and the all-too-apparent growing risks of data misuse, particularly in the online environment. In the future, archives as well as record creators will need to more carefully consider the protection of personality and privacy, especially from the perspective of data (including personal) preservation as such, and this perspective should also be considered much more strictly in the application of legal procedural tools of records and data destruction within the retention and shredding procedures carried out by the archives and record creators. This particular topic will be addressed later in Chap. 8.

Perspectives on the protection of the individual are usually based primarily on the question of how a person and their personality rights may be harmed by the retention and disclosure of data concerning this particular individual. Hence the intentions of the European GDPR to allow for the “minimisation” and “storage limitation” when it comes to personal data and the correlating “right to be forgotten” (“right to erasure”). Although these intentions apply primarily to data controllers other than archives, most often of private law provenance, they also apply to archives.

Along with this trend, however, the opposite perspective proportionally fades, which is the starting point of the following subchapter: Apart from the risks associated with the preservation and disclosure of personal data, archiving in the public interest is also one of the tools by which the protection of personality rights can be implemented, even enhanced. Permanent preservation of certain categories of personal data is not only necessary for various future research purposes and official interests, as Terry Cook pointed out in his study for UNESCO in the early 1990s,¹ but in some cases such preservation becomes the key guarantee of the protection of personal as well as other human and civil rights. I will demonstrate this thesis on some specific cases. An analysis of the opposite situation, in which personal data, especially in archival records, have been misused, will be discussed in more detail in Chap. 7.

4.1 Odenwaldschule and Records Testifying to Sexual Abuse of Children: Premature Archival Records Management

In 2010 Germany, a case emerged of widespread, systematic, and long-term sexual abuse of children since the 1990s by the teaching staff, including the headmaster, at the Odenwaldschule reform school in the Hessian town of Heppenheim.² The school went bankrupt as a result of these facts coming to light, and in this context the question of what would happen to the school’s surviving records began to be addressed. For the most part, these were records for which the retention periods had not yet expired, that is, materials that should normally remain with the creator and, if that was not possible, a liquidator should be the one to take care of them, ensure their preservation until the end of the retention period when the records could be transferred to the relevant archives or legally destroyed if deemed without value.

However, such a development did not occur. Immediately after the case broke out, some sensitive personal data were leaked to the public. This became one of the reasons why the Hessian State Archives in Darmstadt stepped in to store the school records. Following a consultation with the State Prosecutor’s Office, the Hessen Archives decided to take over the school records before the expiry of the retention periods, with the proviso that the final archival selection would be made after they had expired. In the case of the Odenwaldschule records, the Hessian State Archives took on the role of the so-called intermediate archives (in German terminology, a “Zwischenarchiv”), that is, a place on the borderline between a registry managing actual “living” records and a historical archive preserving definitive, historical archives. At the same time, the archive is already beginning to address the question of whether it will eventually proceed to the permanent archival preservation of all of the approximately 5500 student files, or whether it will reduce their quantity. Developments in the demand for the records in question will certainly play a role. Currently, there are several research projects that would like to use these materials. Still, the situation of scientific research in 10 or 20 years is hard to predict.

The timely scientific extraction of the data contained in the Odenwaldschule records was ultimately the second factor that led the Hessian Archives to accept the school records for premature archiving. The Archives also received materials that would otherwise have been destroyed in the shredding process.

The documents and archival records of sexual abuse are one of those groups of historical sources that raise the acute question of the relationship between the actors themselves and the materials that testify about them. It was thematised in 2016 by the newly established German Independent Commission for the Processing of Child Sexual Abuse (Unabhängige Kommission zur Aufarbeitung sexuellen Kindesmissbrauchs); its 2019 meeting gave the floor to Max Mehrick, a former pupil of a private boarding school in Hessia where he was a victim of sexual violence. From the victim’s perspective, Mehrick sees the surviving school records as part of the abuse itself, which further supports the exercise of power by the then perpetrators and undermines the dignity and self-determination of the victims. “That, what humiliates is archived together with the record.”³

Mehrick’s view of archived sources highlights a perspective that is often neglected by archivists and researchers, namely: What is the relationship of the actors themselves to the material telling about them? Would these actors wish someone else would see and read the records?! This question affects a large part of archival wealth, and at the same time it invades the field of personality and privacy protection of the actors of archival records.

In doing so, it reveals some fundamental differences between the groups of records and the motivations of their actors. There is a difference between the interest of the representatives of political power, the minister, the mayor, the high state official not to disclose “their” materials and the interest of the victim of sexual violence. In the first case, the public interest of transparency and controllability of the exercise of public political power clearly prevails; on the contrary, in the latter case the protection of the personality and privacy of the actors must be taken into account and the victim’s right “to be forgotten” needs to be considered; this term is being increasingly used in the context of European law since the GDPR introduced the “right to be forgotten” as one of the rights of EU citizens, applicable to records of private and public entities under certain conditions. Similarly, the situation is quite different when it comes to access to the archives of divorce cases, where the primary concern is to preserve the confidentiality and privacy of the persons concerned, and, for example, the files of a criminal tribunal dealing with crimes against humanity, where the society’s right to know what crimes have been committed and how law and justice have dealt with them clearly prevails.

In the case of the Odenwaldschule records, the Hessian Archives has chosen, at least for the time being, a solution that combines two notions. On the one hand, the Archives is aware that society has a right to know as much information as possible about a school that has become one of the prominent symbols of child sexual abuse in Germany. For this reason, it has decided to digitise and make available as much of the school’s documentation as possible and publish the digitised versions on the web, and to do so as soon as possible. These include mainly the school’s organisational regulations. On the other hand, it must respect the protection of the personality of the pupils, a significant number of whom have been victims of sexual abuse in the past. Files relating to pupils will remain inaccessible and will only be used for research purposes, investigations, or other official purposes. Of the total amount of over 270 linear metres of preserved records (of which 60 linear metres are photographs), approximately two thirds are available to the public as of 2020.⁴

The case of the Odenwaldschule records demonstrates that archiving does not only pose a potential risk of future unauthorised or at least ethically questionable intrusions into the privacy and protected sphere of personality of those concerned in the records, but it also fulfils the role of protecting them. The motivation for the premature transfer of the records containing data on sexual abuse was to protect the personality of the abused children on two levels: first, to prevent any unjustifiable leak of the data to the public; second, to analyse these extremely serious crimes as thoroughly as possible, both officially and scientifically, with the aim of eliminating them to the greatest extent possible in future.

The Odenwaldschule case has shown that public archives in Germany are, in principle, a trustworthy place for public administration and society to store even very sensitive material. Although archives take custody of records for the most part only when their greatest sensitivity has passed, this is far from always the case, as illustrated by many of the cases I have touched on so far. Public archives, like any other entity, acquire this credibility only through the long-term responsible and secure care of the material entrusted to them. In the following section, also in connection with the archiving of records testifying to child sexual abuse, I will point out quite the opposite, a case when archives and in particular their founder and administrator, in this case the Roman Catholic Church, have suffered a massive loss of credibility in the last quarter century or so.

4.2 Church and Child Sexual Abuse: Access to Archives as a Form of Protection

“In the administrative office of the Diocese of Altoona-Johnstown, across from the Bishop’s Office was an unmarked door containing multiple filing cabinets and boxes. This unmarked door was between the large reverent portraits of Bishop James Hogan and Bishop Joseph Adamec. Some of the filing cabinets were marked “Priests Personal”, “Deceased Clergy”, “Priests who left the Clergy”, and “Confidential Litigation Files”. Some of the boxes were marked “Luddy Litigation” and “To Be Opened Only by the Bishop or Secretary of Temporalities”. Inside the filing cabinet marked “Confidential Litigation Files”, Special Agents found files for Priests who were accused of sexual misconduct. The filing cabinet held four drawers, all four drawers had files. The “Secret Archive” was a safe contained in a cabinet in the Bishop’s Office. This safe was under lock in which only the Bishop had the key. This safe contained one file pertaining to a Franciscan Friar, Brother Stephen Baker. Another room contained a filing cabinet marked “Confidential Litigation Files”. This filing cabinet was also four drawers and contained files labeled by the victim’s names. As Special Agents of the Office of Attorney General stood inside an organization devoted to the tenets of scripture and morality, they found themselves surrounded with evidence of an institutional crisis of child sexual abuse . Agents did not find a couple files in a drawer which alleged child molestation, but rather boxes and filing cabinets filled with the details of children being sexually violated by the institution’s own members […] Approximately 115,042 documents were removed from the Diocese. This total does not include the electronic data seized pursuant to the warrants. Within these documents were the hand written memoranda of Bishop James Hogan; letters and documents of Bishop Joseph Adamec; numerous sexual abuse victim statements; letters from sexual abuse victims; correspondence with offending priests and internal correspondence. […] The Diocese of Altoona-Johnstown was in possession of a massive amount of data detailing a dark and disturbing history.” ⁵

This is how the police search of the office of the Bishop of the Diocese of Altoona-Johnstown in the state of Pennsylvania, USA, was conducted. Stephen Baker, the Franciscan friar whose file was locked in the “secret archive” and whose case was at the heart of the subsequent extensive Pennsylvania-wide investigation, had been dead for several years at the time the report was released, having committed suicide in 2013 after his crimes of multiple child sexual abuse came to light.

Serious allegations of a huge number of cases of child sexual abuse by Catholic clergy in the state of Pennsylvania led to the convening of a grand jury. Its extensive investigation was conducted in every diocese of the Roman Catholic Church in the state of Pennsylvania and resulted in two exhaustive reports: the first the 147-page 2016 report cited above detailing sexual abuse in the Diocese of Altoona-Johnstown, and the second a 2018 summary concerning the remaining Pennsylvania dioceses of Allentown, Erie, Greensburg, Harrisburg, Pittsburgh, and Scranton, totalling a breath-taking 884 pages.⁶

The investigation confirmed massive sexual abuse by approximately 350 clergy and other church officials continuing for over seven decades in the state of Pennsylvania. The findings showed that of the approximately 5000 priests in the period under review, approximately 8% were credibly accused of sexual abuse by victims; more than 1300 children were affected. The reports revealed the unimaginable scope of sexual abuse cases in the Pennsylvania dioceses and unveiled the deliberate and systematic concealment of cases from the public and law enforcement by church dignitaries, among them the appointed bishops at the time, Joseph Adamec (a descendant of Slovak immigrants to the USA) and James Hogan. Although the grand jury ultimately did not bring charges (due to the deaths of the perpetrators, their high age, the inability of the traumatised victims to testify, etc.), the published results of its investigation radically exposed the massive nature of the crimes committed, including the deliberate efforts of high church dignitaries to cover these up.

The Pennsylvania child sex abuse scandal eventually came to a head after Cardinal Donald William Wuerl, bishop of the Diocese of Pittsburgh from 1988 to 2006, then archbishop of Washington, one of the church’s dignitaries who, according to the report, covered up child abuse in his diocese and appointed clergymen with serious allegations of sexual abuse to other priesthood offices,⁷ resigned from office in 2018. While accepting the resignation, Pope Francis was very lenient in his comments towards the resigning Wuerl and his role in the whole affair, and he praised Wuerl’s work in general. This move outraged some of the abuse victims.

This book does not intend to recapitulate the sufficiently publicised cases as such, it rather wants to highlight the significance of the phenomenon of preservation and access to records, including archives.

The perception we saw in the previous section with Max Mehrick, one of the victims of sexual abuse at the Odenwaldschule boarding (not church) school, that the surviving school files are part of the abuse itself and further support the exercise of power by the perpetrators at the time, is rather unique and would only be justified if the sensitive files remained in the custody of the institution where the abuse took place. But this was not the case with the Odenwaldschule, which ceased to exist and whose records were transferred into the care of the public Landesarchiv. Moreover, as the Australian inquiry has shown, and which will be discussed below, the Australian victims themselves saw the inaccessibility of records testifying about their sexual abuse as a greater problem than the continued retention of such records.⁸

The underlying problem is the very status of ecclesiastical records as these are not categorised as public but rather as private ones. For this reason, they are not normally subject to the legislative requirements imposed on public records and archives, in particular the obligation of preservation, the obligation to offer each record to the public archive for retention and to leave it to the public archive, as a public authority, to decide which records are to be archived and which can be destroyed. Public control over church records is therefore extremely limited at this level and can only be exercised by public entities in the context of investigation mandated by law enforcement authorities or when the Church itself allows it. This situation also applies to the specific so-called secret archives existing in the Roman Catholic Church.

Archives, including the “secret archives” are codified in the Codex Iuris Canonici in Canon 486–491.⁹ The Codex requires each diocese to establish its own diocesan archive “in which instruments and written documents which pertain to the spiritual and temporal affairs of the diocese are to be safeguarded after being properly filled and diligently secured” (Can. 486, § 2). The Codex also lays down rather strict rules on access to archival records maintained in the archives.

In addition to this “unclassified” archive, each diocese also establishes a “secret archive” with a different and much stricter access regime. While the keys to the “ordinary” archives are held not only by the bishop but also by the chancellor, and access can be granted by the bishop, the chancellor or the director, the key to the secret archives is held by only the bishop. Unlike an unclassified archive, in the case of a secret archive, the Codex Iuris Canonici does not explicitly provide for the possibility of granting access to other persons. While records may be removed from unclassified archives for a short period of time, again with the permission of the bishop or the director of the curia and the chancellor, it is expressly forbidden to remove any documents from the secret archive or safe (Can. 490, § 3). The secret archive must be secured so that it cannot be moved.

The Codex Iuris Canonici is brief on the content of secret diocesan archives. They hold records that are supposed to remain secret. They should maintain, inter alia, records establishing the warnings or rebukes or other documents evidencing some sort of reprimand (Can. 1339, § 3). They hold criminal investigation files and related documentation under canon law (Can. 1719). In the context of the utterly inadequate provisions in relation to the secret archives, a single provision indicates the content of the secret archives in relation to records documenting sexual abuse by Church officials: “Each year documents of criminal cases in matters of morals, in which the accused parties have died or ten years have elapsed from the condemnatory sentence, are to be destroyed. A brief summary of what occurred along with the text of the definitive sentence is to be retained” (Can. 489, § 2). A significant part of the secret archives of the Roman Catholic dioceses thus consists of records and archives concerning “criminal cases in matters of morals”, in other words, material testifying to cases of sexual abuse in particular. It is these documents that constitute the key documentary evidence enabling the reprehensible acts committed by church officials to be substantiated.

The archiving of Church records in the context of the protection of personality rights and the absolute failure of the Church to address the issue of child sexual abuse exhibits several fundamental flaws that have throughout time contributed significantly to the massive and worldwide expansion of this criminal activity perpetrated by Church officials. These are in particular: The hierarchy concentrated in the role of the bishop is too strong and not limited by sufficient control mechanisms. Only the bishop has access to the secret archives. In relation to the function of the archive and the secret archive, there are virtually no control mechanisms established both from outside and from within the Church. Finally, up to and including 2019, the access to records relating to sexual abuse was significantly restricted by the application of the so-called papal secrecy under canon law. It was only Pope Francis who removed the papal secrecy from the records relating to cases of violence and sexual assaults committed under threat or abuse of authority, cases of abuse of children and vulnerable persons, child pornography, and the failure to report or cover-ups by bishops, superior generals, and other top Church officials.¹⁰ This step should lead to greater cooperation between church authorities and the state and law enforcement authorities in detecting and proving the crimes in question.

All these moments manifested in most of the gradually proven cases of sexual abuse in the Church, usually at the level of concealing these crimes, often by bishops as the exclusive custodians of this “sensitive” information, which was to be maintained in secret archives. Bishops often transferred the offenders to other locations, allowing them to continue this serious criminal activity.

Ultimately, the fundamental flaw lies in the Codex Iuris Canonici and the rules it sets for the record preservation centrally for all church archives. First, records of “criminal cases in matters of morals” are for the most part not intended for permanent archiving, but on the contrary they are determined for destruction after the expiry of the retention periods. After these periods, only the final judgments and a brief summary of the facts are retained. Second, all material other than these final judgments and brief summaries is subject to a retention period of 10 years following the closing of the case by way of a conviction by the ecclesiastical court, or it is subject to immediate destruction following the death of the offender. It is obvious that this period is extremely short. It is completely inconsistent with the often very long interval after which a victim of abuse is able to testify, press charges, and take appropriate legal action, nor does it correspond in principle to the statute of limitations for child abuse offences under criminal law. What is more, statutes of limitations for these categories of crimes are being extended throughout the world in recent years and in some cases they have been eliminated altogether. In Germany, for example, the most recent extension took place in 2015; the period is now 20 years, but only starts when the victim turns 30. In 2013, the Netherlands abolished all statutes of limitations for serious sexual abuse offences, with the minimum penalty of eight years. The United Kingdom has no statutes of limitations for such crimes.

The excessively short retention periods of material relating to cases of sexual abuse maintained in secret diocesan archives have been criticised by the Australian government-established Royal Commission into Institutional Responses to Child Sexual Abuse, dealing with child abuse throughout society not only in the Church. In its final comprehensive extensive report in 2017, it provided a total of 189 recommendations (80 of which related directly or indirectly to the Catholic Church) and in one of them it proposed that the Australian Catholic Bishops Conference petitions the Holy See to amend the relevant provisions of the Codex Iuris Canonici so that records are not destroyed after the death of the perpetrator, or 10 years after their canonical conviction, but that this period be extended to 45 years.¹¹ It needs to be noted that the Commission recommends the same 45-year retention period for records relating to child sexual abuse of all institutions, not solely the Church.¹² The Commission has also recommended that the National Archives of Australia and other regional archives and public records custodians establish retention (shredding) periods of at least 45 years for records that may provide evidence of child sexual abuse (ibid., Recommendation 8.2).

The Australian Catholic Church reacted promptly to the Commission’s recommendations and accepted and supported the vast majority of them, including the extension of the retention periods¹³ (it did have doubts, however, regarding the seal of confession and it left two crucial recommendations to be further discussed with the Holy See: (1) breaking the seal of confession when the content of the confession is the testimony of a sexually abused child; (2) when the confession is made by the perpetrator of sexual abuse against a child, should absolution be granted only after the perpetrator has turned himself in to civil [non-canonical] law enforcement authorities?¹⁴ Especially in the case of the latter recommendation, it is very surprising that it has not been applied in the confessional practice of the entire Roman Catholic Church for a long time). Already in 2018, it approached the Holy See to make the relevant adjustments in the canon law and to extend the retention periods to a minimum of 45 years, taking into account, among other things, the extending statute of limitations for offences of sexual abuse of minors. At the same time, the Australian Catholic Bishops Conference will prepare a new methodology recommending a retention period of at least 50 years for these records.

For comparison, we can mention yet another enormously large research study commissioned by the Association of German Dioceses and published in 2018 by an independent consortium of several different research organisations in the fields of criminology, mental health, and gerontology. It should be noted, however, that the researchers did not have direct access to the incriminated records and could only rely on the data supplied by the individual dioceses via questionnaires. The report covered the period from 1946 to 2014 and used data from personal and investigative files on 38,156 clergymen of the Roman Catholic Church. Of this number, 1670 clergymen were found to have allegations of sexual abuse of minors, representing a total of 4.4 % of the clergy from that period.¹⁵ There were 3677 documented minor victims. But the total number will almost certainly be higher, given the destruction of an undetected number of files, as I will specify below. Based on the documented cases, there were a total of 2.5 victims, that is, alleged accusations per one offender. In an analysis of the surviving criminal files of the canonical criminal proceedings, this ratio was found to be as high as 3.9 victims per one accused cleric.

Based on empirical research, the report shows that the impacts and burdens that victims bear for a very long time and often their entire lives are very high;¹⁶ it also provides important and explicit findings regarding the loss, non-preservation, and tampering with the records that are important for our research. Based on the statements of the German Roman Catholic dioceses, the resulting statistics suggest that 7.4 % of the dioceses do have a history of clergymen destroying records containing references to the sexual abuse of minors and 48.1% of the dioceses (13 dioceses in total) cannot rule out such record destruction.¹⁷ This figure is of far greater significance than the research report deems relevant. Almost half of the dioceses must have implemented poor record management procedures as they are unable to confirm whether any materials were destroyed and, if so, what materials and when were destroyed. The research report highlights, that one of the key factors behind the failure to ascertain the fate of the records was the absence of a requirement to paginate personnel files in dioceses. Any additional changes in personnel files are thus not identifiable, and “file tampering was and is uncontrollable and cannot be ruled out”. The reality is that the vast majority of files are not paginated and it is impossible to determine the extent of tampering.¹⁸

It is surprising how the German Bishops’ Conference interpreted the results of the research report on the report web presentation. It concludes that the concerns regarding too short retention periods and premature destruction of records relating to criminal proceedings in cases of sexual abuse are not justified. Quite surprisingly, the representative body of the Roman Catholic Church in Germany itself is unable to accurately characterise the contents of the secret diocesan archives and expresses hesitation as to the extent to which there actually are case files in matters of morals according to canon law or whether these are more likely to be references to moral offences that did not lead to canonical criminal proceedings.¹⁹ Regardless of the existence of the research report, it is the German Bishops’ Conference itself that should know best exactly what the contents of the archives are, including the contents of secret archives of their dioceses.

Francophone Canada has recently chosen yet another model than that of Australia or Germany. In 2019, Montréal Archbishop Christian Lépine appointed the retired judge of the Superior Court, Anne-Marie Trahan, to lead a working group charged with investigating crimes of abuse of minors in the Church from 1950 to 2019.²⁰ The investigation was initiated by the Church itself. In doing so, Canada chose a person who, on the one hand, emerged from the structures of the non-canonical judiciary and, on the other, stood already outside and, in addition, was significantly involved in church structures, most recently as she sat on the executive council of the Order of Malta of Canada. The ex-judge was given direct access by the Archbishop to the diocesan regular and secret archives. Unfortunately, Anne-Marie Trahan passed away in 2019 and the Archbishop of Montréal will be looking for her successor.

Unfortunately, Canada brings yet one more sad case for analysis. In recent years, Canada has been shaken by the gradual revelations of the horrors of what has come to be referred to as the genocide or cultural genocide of Indigenous peoples, particularly within the Indian residential school system. It is not the intention of this book to analyse the history of this process, which was designed to isolate Indigenous children from their own culture and religion and assimilate them into the emerging dominant Canadian culture. The shocking findings gradually show not only the enormous extent to which this process has been carried out, but also the violence and atrocities committed against these children by the religious institutions administering the system. In July 2022, Pope Francis II visited Canada to formally apologise to all the Indigenous victims on behalf of the Church. However, the fact crucial for our analysis is the way in which documentation and archiving of materials related to the residential school system was handled.

In 2007, the National Centre for Truth and Reconciliation (NCTR; located at the University of Manitoba in Winnipeg) was established and it is gradually taking shape as a special archive that intends to permanently store the maximum of relevant residential school records collected by the Truth and Reconciliation Commission of Canada and thus contribute to the creation of complete history and legacy of Canada’s residential school system. It intends to collect either originals or copies of as much existing documentation as possible testifying to the residential school system and its victims. Federal authorities and other institutions, including some church institutions, are gradually transferring some of their records either through the Truth and Reconciliation Commission or directly to the NCTR, and negotiations are ongoing.²¹ In this respect, the NCTR is a documentation centre and, in a way, an archive. Records archiving in the NCTR and providing access to victims and society as a whole is a tool for implementing the protection of the rights of Indigenous peoples in Canada.

In Ireland, the then acting judge, Yvonne Murphy was appointed to lead the investigation into the sexual abuse of minors in the Dublin Archdiocese and a Commission of investigation was appointed by the Department of Justice. The investigation carried out between 2006 and 2009 resulted in the so-called Murphy Report, concerning diocesan archives, including secret ones; yet, considering the extraordinary 720-page length of the report, it is astonishing that they are only mentioned very briefly.²²

The Commission of investigation set up by the Australian government, a consortium of research organisations commissioned by the German Roman Catholic Church conducting a research project, the model of Francophone Canada, where the Church commissioned a retired judge to conduct a comprehensive extra-judicial investigation, or the direct commissioning of an acting judge, as the situation was in Ireland, they all represent different ways of how to reflect the intense public pressure, especially in the last quarter century, to open the Roman Catholic Church archives, and the secret diocesan archives in particular. Throughout the process of opening up this horrifying and deplorable reality in the Church, it has become clear that in order to carry out a comprehensive investigation, it is absolutely necessary to be able to access records in the Church archives, provided that the records in question have survived. The Canadian NCTR is a memento that archiving and disclosure of records can become a very important tool for the protection of victims.

4.2.1 Public-yet-Private Records and the Process of “Publicization” of Private Records

Church records and archives which in some way bear witness to the crimes of child sexual abuse, as well as other crimes falling within the scope of non-canonical criminal law, ultimately raise a remarkable question regarding the status of these records as such. Although church records are generally considered private rather than public, in the case of records testifying about crimes in the diction of general criminal law, this question is much more controversial.

A number of cases outside the Church have led to serious disagreements regarding the status of records, particularly those created by top elected political representatives. It is only in recent decades that this issue has begun to be systematically addressed in developed democracies, albeit with varying outcomes; in any case, however, more precise boundaries are being set up between purely private and public records, and society’s claim to publicity has strengthened for a number of record categories that were previously perceived as private.²³

The category of church records testifying about crimes, including sexual abuse, represents records in a way lying on the borderline between private and public comprising both, private as well as public record features. Although these records originated from the activities of a private entity, society, in view of the crimes committed and, what is more, the attempts to cover them up, claims access to them and, in a sense, demands that they be subject to the requirements imposed on public records and archives. This also applies to other situations in which, for example, law enforcement authorities have the right to seize private records, that is, to make a public claim to them by granting access to a public authority. In a sense, in these and similar situations, it is possible to talk about a process that I would call “record publicization” meaning that an originally private record becomes public in certain respects. One of the characteristics of such a process is that it is not permanent and can be reversible. In many cases, private records seized as evidence in criminal proceedings are returned to their original owners once the proceedings are over.

4.3 Conclusions from the Analyses of Preservation and Archiving Records Testifying About Child Sexual Abuse and Recommendations

• Inaccessibility of records to the victims of sexual violence. This issue is explicitly implied by the conclusions of the quoted report of the Australian commissions of inquiry.²⁴ Victims should henceforth have access to files that testify about violence against them, even if these include originally “private” church records. The inspiring aspect of the case of Indian residential schools is the effort of the government, including public archives, to give access to the maximum extent possible both to the victims and to society as a whole to the records documenting and testifying to the cultural genocide and the full range of the most serious crimes committed by mainstream Canadian society, in this case by means of residential schools, against Canada’s first inhabitants, not only children but also their parents.

• General competence to decide on access to records maintained in diocesan secret archives is vested only in the bishop, as follows from the Codex Iuris Canonici. This exclusive competence of bishops to regulate access to diocesan secret archives should be removed from the canon law.

• Allowing church dignitaries, especially bishops, to arbitrarily decide on the destruction of records testifying about child sexual abuse. The control mechanisms particularly with regard to records management in—especially secret—archives are absolutely minimal. It is advisable to introduce such mechanisms in future and limit the almost exclusive authority of bishops in the management of diocesan—especially secret—archives, including their power over the destruction of records maintained in such archives.

• Inadequately short retention periods for records maintained in Church archives relating to crimes committed by Church leaders.

• Poorly set appraisal of the archival-historical value of records relating to the crimes of religious leaders, as a large part of the records concerning crimes and other offences of religious leaders is not intended for permanent archiving. Only the final judgement delivered by ecclesiastical courts in criminal proceedings under canon law together with a “short summary of the facts” is permanently preserved. In non-canonical criminal law, major crime files are at least selectively, but in some cases completely permanently archived in public archives due to their highly significant historical and archival value. A typical example is the material related to Jack the Ripper. Records that have survived to this day—for example, the correspondence of the London Metropolitan Police during the period of the Ripper murders and during the investigation, the Ripper’s alleged letters to newspapers, and so on—are still, more than 130 years later, carefully preserved in The National Archives and their historical and educational value is incalculable.

• It is worth considering whether some parts of the records maintained in church archives, which could be understood in the diction of this text as records lying on the borderline between private and public, should be transferred to public archives for permanent archiving. Moreover, they are often much better suited for permanent or very long-term archiving than church archives; and they could probably also be a better guarantee of timely and lawful availability of records.

And this brings us closer to what lies behind the intention to release to public archives the records of the Odenwaldschule private school, where massive sexual abuse of minors also occurred and which was addressed in the previous part of the text. In addition to preventing data leaks, the reason was the timely use of the data for official and scientific purposes, that is, opening access (although not, of course, for the general public). Unfortunately until recently, church institutions have, virtually without exception, denied access to records of crimes, including those related to the sexual abuse of minors, usually with both illegal and immoral incentive to cover up such crimes.

To conclude at the end of this chapter: Personal protection in the archives (and beyond), as I have attempted to demonstrate using some examples of the fate of records relating to child sexual abuse within various entities, may in some situations be best achieved by destroying sensitive personal data and making them permanently inaccessible; however, in certain situations, this protection does quite the opposite—it allows access to archival records and permits a timely and, with respect to personality and privacy protection of the victims in particular, controlled and regulated access to records and archives that testify to human rights violations.

One of the key tools for the protection of personal and privacy rights in archives, as well as in records management, is embodied in a law that is gradually being more and more frequently mentioned and has recently become one of the new rights guaranteed to the citizens of the European Union. It has already been mentioned at several points in this and previous chapters. It is often called “the right to be forgotten”. It also has significant relevance in the area of post-mortem personality and privacy protection. It stands at the imaginary opposite pole to another right associated with the principle of free access to information, the “right to know”. “The right to be forgotten” will be the main topic of the following chapter.