Archival Legislation –A historical Review

INTRODUCTION

• Archives are important and valuable because of their precedent, reference,

and informational value. Archives and Archival organizations have played a
vital role in the public life of the people and society at large since ages in
managing the memory of the mankind and the nations.
• The Greek term archeion as we popularly know referred to the office of the
magistrate or archon and the records kept by that office. Similarly, the Greek
arkhe meant to command or govern. Likewise archivum in Latin was the
residence of the magistrate and the place where records of official ,legal and
administrative significance were kept.
• According to Ernst Posner, the well known American Archivist , the first
archives were created by the Sumerians in the middle of the fourth
millennium B.C. These records took of the form of clay tablets with cuneiform
characters. The archives were used to support commercial activity and
property ownership. Later ancient societies, such as the Hittites, Assyrians
and Mesopotamians, all kept archives, although it is difficult to say how
institutionalized these archives were and what form.No guidelines for
managing archives were known to have existed.
• Archives were known to be kept in temples and courts for religious, legal,
administrative, commercial and genealogical purposes. In fact kingdoms
often incorporated the captured archives of defeated governments to help
establish control over the newly occupied territories It was common practice
for royal archives to have no fixed location, but instead to travel with the
King’s household
• Although there no laid down guidelines for managing archives in
early times,in what was perhaps the first example of an archival
institution performing public service , the Greek city-state of Athens
began housing its archives in the Metroon, the temple of the mother
of the gods next to the Courthouse, by around 400 B.C. This Archives
contained laws, decrees, minutes, financial and diplomatic records,
contracts, records of court proceedings, and manuscripts of plays by
Sophocles, Euripides and others. Private citizens could obtain copies
of the records in the archives
• Similarly Rome’s first public archives was founded about 509
B.C. in the Aerarium, or treasury, of the temple of Saturn and
housed laws, decrees, reports and financial records and could
be consulted by all citizens. When the Aerarium was
destroyed by fire in 83 B.C. it was replaced by the Tabularium,
a large stone buildings. Various emperors, most notably
Justinian I, were keen advocates of archives. The Justinian
Code of 529 A.D. not only included a section on the role of
archives and archivists, but also emphasized the importance
of archives as a public place of deposit and as guarantors of
the integrity and authenticity of the records housed therein.
The Justinian Code was the foundation for the Byzantine
system for nearly nine hundred years and had spread to
most of Europe.
 ORIGIN OF ARCHIVAL PRACTICES

• The practice of archival administration grew as a natural organic

phenomenon as soon as the practice of writing on perishable
materials was invented. Despite all these developments, an "archival
science" did not emerge until the seventeenth century. In that era an
interest in history as a science began to grow out of the Renaissance .
in 1632 , Baldassare Bonifacio an Italian historian , wrote the first
known treatise on the management of archives. Subsequently
several treatises and manuals appeared on the subject in Italy,
France, Germany, and Spain laying out new theories about the best
methods for the arrangement and description of archives. By the
end of the eighteenth century, the whole field of archival theory and
practice in Europe was being completely renovated. Thus ,the
modern administration of archives in Europe really began when it
became clear that archives could no longer be considered only
"historical" repositories, but perform other functions as well
 BEGINNING OF MODERN LEGISLATION

• It is well known that today, Governments enact Archives legislation to

provide the mandate to the archival authority, set out the rules for its
operation, define what part of the collective memory of the country
should be retained and preserved, and for whom and under what
conditions the preserved records could be made available. Archival
institutions are service organizations whose existence stems from the
need to cater for records and archives that have been generated.
Governments all over the world require comprehensive archival
legislation to ensure that records and archives are managed
accordingly for effective running of the current operations of
organization, as well as for historical reasons
• Archives legislation is usually of two kinds-Primary and Secondary
Legislation.
• Primary Legislation (such as Acts, Decrees, Ordnance) is enacted by
Parliament or some other supreme Legislative authority
• .Secondary legislation (such as Rules, Regulations, statutory
instruments), is normally promulgated by a Department or Ministry
under powers conferred by primary legislation. In most countries there
are Acts of Parliament or decrees that provide the legislative authority
required for these services to operate. These acts and decrees define the
rights of the archival institutions and provide it with the authorization
necessary for it to carry out its functions. For example we have the
Public Records Act 1958 passed by the Parliament of the United
Kingdom forming the main legislation governing public records . Similarly
in India , the Public Record Act was passed in 1993, followed by the
Public Record Rules in 1997.
:
. Essential features of archival legislation
A. Definition of records and archives in general
This is normally the introductory part of any Act. There is no
uniform definition for records and archives. Legislation may make a
distinction between records and archives. In most countries, records
are defined as recorded information regardless of its form or
medium created, received and maintained by an agency, institution,
organization or individual in pursuance of its legal obligation or in
.
the transaction of business that they take part or as evidence of such.
Archives may also refer to records under the control of the authority
designated by the archives legislation or as records selected for
permanent preservation because of their continuing value.
• To illustrate, Records under U.S Federal Legislation ” included all books,
paper, maps, photographs, machine readable materials, or other
documentary materials, regardless of physical forms or characteristics,
made or received by an agency of the United States Government under
federal law or in connection with the transaction of public business and
preserved or appropriate for preservation by that agency or its legislate
successor as evidence of the organization, functions, policies, decisions,
procedures, operations or other activities of the Government because of
the informational value of the data in them.” .
• According to the Yugoslavian law, archives are all documents, originals or
reproductions (writings, drawings, printed material, photographs, films,
phonograms and others),which are important for history and other
scientific domains, for culture in general and for other social needs, and
which have been created in the course of business of the State .
• The French archival law states that Records are the whole of documents,
regardless of date, form and physical support, created or received by any
physical or juridical person and by every public or private agency or
organization in the course of their activities.
• In many countries like Bahamas,Botswana, Gambia, Ghana, Nigeria,
Sierra Leone, Zambia and Zimbabwe the definition of public records in
their legislation is based on custody, rather than on provenance. Here
public records or records mean all public documents and other
historical matter of every kind, nature and description which are in the-
custody of any Government department or which may after the
recommencement of the Act, be transferred to or acquired by the Public
Record Office. .
• Likewise the Israeli legislation considers archival material to be all
documents “which are in the possession of any of the institutions of the
State, or a local authority, except material which has no source value”, and
those documents which are situated anywhere and which are relevant to
the study of the past, the people, the State or society or associated with
the memory or activities of persons of note.
• In the Indonesian legislation records are defined as documents made and
received by State Institutes and Governmental bodies, in whatever form,
single or grouped in the framework of the implementation of
governmental actions.
• Thus definitions of records/archives in current legislation vary widely,
depending upon suppositions. There are also laws which encompass
both public and private records/ archives.
 Scope of Legislation

Archival legislation also defines the scope and extent to which it

applies. Apart from government bodies, consideration is given to
include organizations that perform public functions. Legislation for
records or archives make it clear whether it covers all the bodies of
the government with or without exceptions that discharge the
legislative, judicial and administrative functions of the country, and
if it also extends to include public corporations, quasi-government
agencies and others that perform public functions. This again varies
from country to country depending upon the policies of the
Governments.
 Administrative control

This is another indicator of the importance attached by a

Government to its Archives. In USA it is part of the General
Administration Department. In Greece, Iceland, Guatemala, Poland,
Togo, Uruguay and Vietnam, the Minister who has the Education
portfolio, is responsible for the Archives. In the Central African
Republic, Mexico, and Senegal, the Archives are attached to the
Secretariat of the Government.in China the Communist Party
controls the State Archives.; in Pakistan it is part of Cabinet
Secretariat; in U.K it is placed under the Lord Chancellor
. However the Culture Ministry is perhaps the overwhelming choice in
most countries including India, France, Bangladesh Spain,; In Germany,
Belgium, Kenya, Argentina, the National Archives are under the Ministry
of Interior; in Israel, Indonesia, Russia, Austria, it is placed under the
office of the Prime Minister. In India however the National Archives has
over the years functioned under numerous Ministries including
Education, Tourism, HRD.
This above would make it clear there is no uniform authority for
supervising the work of the National Archives world wide. The basic
consideration is that the Archives should be under the jurisdiction of a
suitable authority , who can be approached directly by the head of the
National Archives.
 Access
• Access to records is one of the most fundamental rights of a citizen and
finds an important place in the archival laws. While Legislating on the
issue of access, certain issues are generally considered by different
countries like limiting access to records which would normally be
accessible ;physical condition of the records; security classification;
protection of national security; restrictions placed by donors on private
archives . Over the years access rules have been by and large liberalized
for the benefit of interested users .
Most archival laws contain detailed principles of access to archives. In
many countries , the archives must have reached a certain age before they
may be consulted by the public. In practice the 30 years rule is followed in
most countries ,though some countries have laid down their own rules
for access .
 In Spain the right of access is laid down in the constitution.
Also, government depts. all over the world are typically bound
by a duty to publish and promote openness in access to records
held in their custody .In Botswana, it is 20 years Cameroon,
Israel and Zambia 35 years; Lesotho, Switzerland (Federal
Archives) 40 years Austria; 50 years along with Czech Republic
, Denmark, Ghana, Ivory Coast, Nigeria.
In a number of countries ,public records are under "freedom of
information" legislation in principle accessible from the
moment of their creation, like : Australia, Canada, France, U.K
and the United States. In India the Freedom of Information Ac
2005 guarantees access to records though the Act does not
supersede the Public Records Act .
• .
• The access date may however vary for different categories of archives. In France
medical records are accessible after 150 years; judicial and notarial records, the
civil registration and statistical records, and records containing personal data
after 100 years and personal files) after 120 years. In Algeria the archives are
accessible after 25 years, with the exception of criminal records, and documents
concerning privacy (50 years). The archives in the Italian State Archives are all
accessible, with the exception of archives pertaining to the foreign or domestic
policy of the State (50 years) and those which concern the private life of people
and the criminal records (70 years)
• In the case of China ,Archives kept by State Archives repositories are in general
declared to be open to the public upon the expiration of 30 years from the date
of their formation. Archives in economic, scientific, technological and cultural
fields may be open to the public in less than 30 years. These are however
subject to close scrutiny and the specific time limits as defined by the national
archives administration department are submitted to the State Council for
approval before they become effective.
While most countries provide access to public records as laid down
in their laws, there are certain grounds on which access may be
withheld or refused . In most countries access to archives in bad
material condition may be refused. Duplicates may be offered to
researchers in place of the originals in Australia, Israel, and Japan.
Consultation of archives may also be refused when they are needed
for the State or if consultation would “inconvenience the
administration as in Federal Republic of Germany . Protection of
privacy (or the honour of a person or a family) is in most countries a
reason to refuse consultation of records/archives.. Protection of the
national security and the interests of defense and foreign policy is
the other main reason of restriction of access, which in most
legislation is explicitly stated
 Record Management

• Most legislations contains elaborate provisions to ensure good records

management.. In some countries the National Archives have statutory
responsibility for the whole range of records management functions or the
task of formulating standards for record systems and providing an advisory
service. Elsewhere, these functions may be allocated to another agency, like
a General Services Administration, or the Ministry of the Interior, or the
Central Secretariat of the State.
• The Federal Records Management Act of USA requires the establishment of
standards and procedures to assure efficient and effective records
management. The promulgation of these standards is the duty of the
Administrator of the General Services Administration. In practice, these
activities are carried out by the National Archives and Records Service,
which is part of the General Services Administration.
• In many countries the National Archives are entitled to draft and/or issue
standards relating to records management and to paper- work management;
i.e. Algeria, Argentina, , In other countries the National Archivist is assigned
the task of promoting efficient and economical records management and of
giving advice and assistance to government agencies, like Australia, Mauritius,
USSR, etc. Most legislations contains some general provision. to ensure good
records management. In Pakistan, records management is governed by
detailed Secretarial Instructions of the Cabinet Division, 1975
• In India, the National Archives of India works closely with the Department of
Administrative Reforms in laying down guidelines and directions for proper
record management practices
• The degree of control by the Archives over records management as laid down
in the archival legislations, thus varies from one country to another.
 Non Public\Private Archives

• .Private records/archives may be defined as records/archives of

nongovernmental agencies, institutions and organizations and/or of
nongovernmental provenance.
• In most countries these non public archives include personal papers, family
and estate archives, business archives, church archives, etc. In socialist
countries the scope of private archives is more limited than elsewhere. While
major part of current legislation applies to public records, laws in many
countries also contain provisions governing records of private persons, and
bodies, and the role of archival institutions .
• These provisions by and large envisage that private archives may be donated
or deposited in or purchased by the archival agency; after donation, deposit
or purchase, they are usually governed by the same rules as public archives
• The federal legislation of the United States limits this provision to
“papers of government officials and other papers relating to and
contemporary with a President or former President of the United
States” and “documents from private sources that are appropriate for
preservation by the Government as evidence of its organization,
functions, policy , decisions procedures and transactions”. Similarly
the Director of the National Archives of Zambia has the right ‘to
acquire by purchase, donation, bequest or otherwise any document,
book or other material which in the opinion of the Director is or is
likely to be of enduring or historical value” in Bulgaria the purchase
price of private archives and documents is determined by special
Archives Valuation Commissions. Donors of private archives are
exempted from death duties and other taxes in Argentina, the
Dominican Republic, France.
• In many countries the laws state that owners of private archives
are obliged to take proper care of their archives, like
Czechoslovakia , Bulgaria, Hungary, Peru, Finland, Portugal,
Senegal, USSR, Yugoslavia, where, the State also has a right to
preferential purchase of private archives. In Italy every holder of
private documents more than 70 years old is obliged to declare
these documents to the archival authorities. The archival body
may declare the documents as being of significant interest and
direct the owner to take necessary steps to preserve them, failing
which they could be taken over by the State Archives .
• The aforesaid information is designed to highlight some key areas
which can be found in archival legislations . Other aspects like functions
of archives , role of the Heads of Archives, rules regarding arrangement,
description , etc are by and large on internationally accepted norms
with minor variations depending upon the practice in respective
countries .
• Let us briefly look at how legislations took effect over the years in some
of the well developed countries .
 ITALY

• Italy was the homeland of the Romans and the metropole of the Roman
Empire. Rome was founded as a Kingdom in 753 BC and became a Republic
in 509 BC, when the monarchy was overthrown in favor of a government of
the Senate and the People. Since at least the unification of Italy in 1860,
archives have been seen as cultural assets and about the cultural role of the
archivist. After unification, the Cibrario Commission was appointed in 1870
by the Italian government to define the nature of archives. The commission's
final report, in which archives were defined as cultural properties, strongly
argued that "the document which enters the archives enters the domain of
history
• .“
The origin of the Central State Archive (Archivio Centrale dello Stato)
dates back to 1875 when, by the Royal Decree of 25 May n. 2552,
the Kingdom’s Archives were founded for the purpose of keeping
those records deriving from central ministries that were no longer
required for ordinary business, as well as the original copies of
decrees and laws, the vital records of the Casa Savoia (the Italian
royal family) and the heraldry register. The Central State Archive
however, remained for a long time an institution without complete
autonomy.The situation remained unchanged until the aftermath of
World War II when the institution started to make its way to an
independent institution in a permanent location
• . Full autonomy of the Institute was sanctioned in 1953 with the law of April 13,
no. 340: it was officially renamed the Central State Archive and the distinction
made by the State Archives of Rome, and was placed on the official director of
the Institute with the highest grade archival administration.
• In 2008, the Central State Archive became an institution with special autonomy
under the Ministry of Heritage and Culture acquiring scientific , financial,
organizational and accounting autonomy.
• In 1963, the first comprehensive “Archival Law”came into force, and followed
by laws, decrees, and directives dealing, whether directly or indirectly, with
documentary and archival issues.
 UNITED KINGDOM

• As in most medieval European states , archives in England were maintained in

ecclesiastical settings, often in ‘muniment rooms. Towards the end of the
twelfth century, however, there were some moves towards the establishment of
a central government archives in England and a century later Exchequer rolls
began to be housed in the Tower of London. In time, this archives was expanded
to include all of Britain’s Chancery records. In 1323 the first inventory of English
archives was completed and served as a model for similar initiatives elsewhere
in western Europe. Another significant date is 1610, when James I of England
appointed Levinus Monk and Thomas Wilson as "Keepers and Registers of
Papers and Records," thus creating the famous series of State Papers which is
now the core of the Public Record Office.
• The PRO is the official Archives of the UK government and Wales; and
"guardian of some of the nation's most iconic documents, dating back
more than 1,000 years.".The Public Record Office, was established in 1838,
to reform the keeping of government and court records which were being
held, sometimes in poor conditions, in a variety of places. It was created
as a result of the Public Record Office Act 1838 – the national archives of
England, Wales and the United Kingdom government, dedicated to
preserving key public records and making them accessible to researchers.
In 1952 the Grigg Committee was formed to review the working of the
Public Record Office Act.. Legislation was required to implement many of
the Grigg Committee’s recommendations and the Public Records Act 1958
was the result. It came into force on 1 January 1959 to provide the
statutory framework for the new system, and for the new relationship
between the PRO and departments.
• For the first time a statutory, general public right of access was given after
50 years – with arrangements for exceptions – to public records transferred
to the PRO or to a place of deposit elsewhere appointed by the Lord
Chancellor. In 1967 it was decided to reduce the 50 year closure period to
30 years. This allowed records relating to the First World War and those
created before 1923 to be available for public inspection. An amending
Public Records Act took effect on 1 January 1968. In January 2005, the
Freedom of Information (FOI) Act replaced those parts of the Public
Records Act that related to access to records.
• The old regime, under which records were closed for 30 years unless the
Lord Chancellor set a longer or a shorter period, has effectively been
replaced by the Freedom of Information access regime.
 CHINA
• Archives in China can be traced back almost as far as the Sumerians. These
records were inscribed on bones and tortoise shells for religious,
administrative and symbolic purposes as they represented three major stages
of archival development in China. Early Chinese archival documents were
exclusively administrative records of the state. The basic guiding principles of
archival organization throughout ancient China were the essential, imperial
orders of the feudal society. The Chinese also demonstrated an early interest
in the use of archives to control the writing of history. In the first century A.D.
the Han Dynasty even established a Bureau of Historiography
• The Archives Law of the Peoples Republic of China came into effect on 1
January 1988. and rules were notified in November 1990.
• .
• . In 1993, the National Archives and Central Archives agency were merged
into one unified agency called the State Archives Administration operating
two archives, one for the state and one for the ruling political party. It also
controls the two most important Archives
• First Historical Archives of China, a national-level archives where more
than 10 million items of the Qing archives are preserved.
• The Second Historical Archives of China comprising archives of former
central governments during the Republic of China period (1912–1949),
including the governments in Nanjing, Guangzhou, Wuhan and Beijing. It
also holds the archive of the government led by Wang Jingwei during the
Japanese occupation era.
• In terms of access ,the Chinese meaning of "open to society" is embodied
in the provision that "any citizen or organization of the People's Republic
of China bearing a legally valid identity certificate may use archives
already open to society." It does not mean "in the public domain. The
general rule for opening archives to public research is thirty years. It may
be less for some records, or more than thirty years if there are security
issues. The state archival authority, backed up by the State Council (and,
inferentially, by the Central Committee of the Chinese Communist Party)
decides what is opened and what is closed.
• A unique system in China is the Dang’an a Chinese word meaning
"record/Archive". Used in the political and administrative context, it
means a permanent dossier or archival system that records the
"performance and attitudes" of citizens of mainland China. it has been an
important part of the government's efforts to maintain control of its
people. Majority of the records are kept by the local archive bureaus,
some by the State Archives Administration of China at the national level.

•
 FRANCE
• Like most countries medieval French archives were largely under the control
of the church and the nobility. The first written records for the history of France
appeared in the Iron Age. The creation, control and use of archives became
increasingly important in the context of religious, legal and political power
struggles . It was only with the French Revolution that organized archival system
was witnessed.
• The Archives Nationales ( Archives nationales de France), also known as the
French Archives or the National Archives, preserve France's official archives
apart from the archives of the Ministry of Defence and the Ministry of Foreign
Affairs. The Archives Nationales have one of the largest and most important
archival collections in the world, a testimony to the very ancient nature of the
French state which has been in existence for more than twelve centuries .
• The Archives Nationales were created at the time of the French Revolution in
1790, but it was a state decree of 1794 that made it mandatory to centralise
all the pre-French Revolution private and public archives seized by the
revolutionaries, completed by a law passed in 1796 which created
departmental archives (archives départementales) in the departments of
France to alleviate the burden on the Archives Nationales in Paris, thus
creating the collections of the French archives as we know them today.
• In 1800 the Archives Nationales became an autonomous body of the French
state. The Archives are under the authority of the French Archives
Administration in the Ministry of Culture. The Archives of France also manage
the departmental archives of France, as well as various other local archives.
The rapid growth of archival material on the one hand, new technical and
legal problems on the other, made it necessary not only to update the existing
legislation, but to make a complete new law, in conformity with current
administrative and academic conditions. This was the object of the law of 3
January 1979 and the decrees of 3 December 1979.
 INDIA

• Government of India, enacted Public Records Act in 1993 to regulate the

management, administration and preservation of Public Records of the
Central Government, Union territory Administration, Public Sector
Undertakings, statutory bodies and corporations, Commissions and
Committees constituted by the Central Government or a Union territory
Administration and matters connected therewith or incidental thereto.
• The Government had set up a Review Panel in 2009 and a Consultative
Committee in 2010 to study the working of PRA and Public Record Rules
and suggest amendments therein. The Ministry of Culture which, proposes
to set up a regulatory mechanism for the effective implementation of the
PRA.
• Laws passed by some other countries

• USA Federal Records Act 1950

• Canada Public Archives Act 1912
• Germany Federal Archives Act 1988
• Australia Archives Act 1983
• Russia Federal law 2004
• Sri Lanka National Archives Law 1973
• Bangladesh The National Archives Ordinance
• Pakistan The National Archives Act of 1993