European elections: ARA CEO calls on members to engage on Data Protection

Proposed Data Protection Regulation is serious matter for UK and Irisharchives

john_chambers_aug_2012_-_Copy_2John Chambers, ARA's Chief Executive, asks ARA members to 'engage'. He says:

'Prospective members of the European Parliament want your vote. Should any of you be asked by an actual candidate for their vote, can you raise the issue of the proposed European Data Protection Regulation which has been passed by the European Parliament? This has serious implications for archives and records management. I’m concentrating on archives here because records management has already been raised as an issue by hundreds of companies and lobby groups. We are a lone voice for UK and Irish archives.

At the moment the draft Regulation is with the Council Of Ministers. At some point it will return to the European Parliament having been amended by the Council and this is where we need to be ready and need your help. Please raise the issue with your candidates so they at least have awareness of it for when it returns.

The text of the Regulation as amended by the European Parliament appears to take no account either of the common law basis of our laws nor that the UK’s and Ireland’s archive services are not all statutory based services. There is an underlying assumption that archives services have a statutory basis but this is not the case with those maintained by universities, schools, businesses and charities for example. We need to ensure that archives services outside government can continue their valuable contribution to the national heritage.

The various versions of the Regulations currently in circulation all assume there is national archive legislation governing the regulation of archive services. This is not the case in common law countries such as the UK or Ireland. As written the Regulation, as amended by the European Parliament, could give the National Archives powers to determine what archives keep. We do not believe they would want these powers and are certain it would not be acceptable to universities, schools or business etc. Should the Regulation be passed as it is then legislation would be required to be introduced by the UK and Irish Governments which we do not believe is necessary or desirable.

What we want are relatively easy amendments to recognise the different legal basis for our archive services. Should any of you get into a proper exchange with candidates here are some specific issues culled from a successful lobby we did of the UK government:

In data protection terms, archivists are ‘processing’ personal data, and under the 1995 Directive and the draft Regulation, this processing is for ‘historical research’ purposes. There are some specific provisions relating to processing for historical research purposes (e.g. Art 83 of the draft Regulation) but they assume processing involves active research use, whereas for most archive collections it consists of storage and preservation with a view to research use at some future date.

This leads on to further concerns with the draft Regulation. The need to ensure that processing for historical purposes is considered lawful when undertaken by an archives service. A provision to this effect (Art 6(2)) was included in the draft Regulation but the EC has proposed an amendment to remove it. This is particularly serious for archives services without a statutory basis, such as those in the private sector

We need to ensure that archives remain sources of evidence that can be relied upon. This requires protection from ‘correction’ and ‘completion’ (Art 16 of the draft Regulation) because they put the integrity of the archives at risk. Archivists need an amendment exempting data being processed for historical purposes from ‘correction’ or ‘completion’ and also from an obligation on archivists to verify the accuracy of data in their archive collections.

We need to ensure that archives being preserved for historical purposes need not be anonymised (Art 83 of the draft Regulation). Not only is this impracticable for paper archives, it would result in archives lacking the details that will be sought by future researchers.

Additional problems include the Triennial review of retention of personal data (Art 5(e)) – there should be an exemption for personal data within archives collections already selected for permanent preservation and being processed for historical purposes.

The duty to supply personal data in electronic form if a request from a data subject comes in electronic form (Arts 12(2) and 15(2)) – this is impracticable when the request relates to paper archives and there should be an exemption for personal data being processed for historical purposes and not already held electronically

The prohibition on charging a fee for requests from data subjects unless the request is ‘manifestly excessive’ (Art 12(4)) – this could be onerous where searches of paper archives are required and a fee should be permitted for requests relating to personal data being processed for historical purposes

Finally the duty to notify data subjects of security breaches (Art 32) – archive services have had no direct dealings with data subjects and have no means of knowing whether contact dealings in their archive collections are current. It is impracticable and there should be an exemption for personal data being processed for historical purposes

If any of you do get to talk about this please let me know who it is you talked to. This email address is being protected from spambots. You need JavaScript enabled to view it.