SLOVAK ARCHIVAL ACCESS LEGISLATION
AND PROPOSAL FOR AMENDMENTS FOR ARCHIVE
SECTOR TO GENERAL DATA PROTECTION
REGULATION – COMPARISON
EBNA – EAG, 8th – 9th October 2013, Vilnius
Mária Španková
maria.spankova@mvsr.vs.sk
LEGAL FRAMEWORK FOR THE ORGANISATION AND
MANAGEMENT OF ARCHIVES IN THE SLOVAK REPUBLIC
I. Act No 395/2002 Coll. on Archives and Registries and on
Amendments of Certain Acts, as amended
(entry in to force: 1st January 2003)
Regulates
• the organisation and competence of state administration in the
field of Archives and Registries,
• the organisation of Archives,
• rights and obligations of Archives founders, Archives, possessors of
archives,
• access to archives,
• rights and obligations of registry creators.
LEGAL FRAMEWORK FOR THE ORGANISATION AND
MANAGEMENT OF ARCHIVES IN THE SLOVAK REPUBLIC
Defines
• archives as records with a permanent documentary value important for
knowledge of the history of Slovakia and the Slovak nation. Film records or
audio records originating from before 1950 are archives. Library documents and
collection items are not archives
• Archival heritage of the Slovak Republic as a complex of archives, archive fonds
and archive collections, except for foreign archives recorded in the Archival
Heritage Register of the Slovak Republic. Archival heritage shall form an
integral part of the cultural heritage of the Slovak Republic. The state shall be
obliged to provide for the preservation of archival heritage and everyone shall
be obliged to provide collaboration to the state with respect to it.
• Archives as a specialised workplace that acquires, registers, and processes
archives.
The acquisition of archives, protection of archives, their processing and access to
the information contained in archives, shall be subject to public interest.
The Act is applied to ALL registry records creators, archives
creators, possessors of archives, and Archives founders
except for
• registry records originating from the activities of the
intelligence services,
• documents kept in collections of libraries, museums and
galleries – they are not considered as archives.
(these exceptions have been the conditions to pass the draft
within the preparation procedure)
Organisation and competence of state administration in
the field of Archives and Registries
The National Archives Service
• The Ministry of Interior of the Slovak Republic - the central state
administration authority in the field of Archives and Registries.
• State Archives established by the Ministry as institutions without
legal personality.
The Ministry is entitled to
• work out the general development policies in the sphere of Archives
and Registries,
• issue the decrees, regulations, rules and standards and control
legislation execution,
• permit the establishment and dissolution of Archives and dissolve
Archives in cases as stipulated by Act,
• keep the register of Archives, archival information system and a list
of persons performing specialised activities in Archives, pursuant to
Act,
Organisation and competence of state administration
in the field of Archives and Registries
State Archives are delegated powers by the Ministry to
•keep the register of registry creators and archival heritage,
•execute professional state supervision over registry
administration, Archives and archives stored at possessor that
did not establish Archives,
•approve the guidelines for registry administration and records
schedules,
•decide about the disposal of registry records, access and
restrictions of access to the archives acquired (to archives
originating from the activities of state authorities and legal
persons established or founded by them, other legal persons
stipulated by Act, self-governing regions, municipalities, and
significant individuals under the territorial competence principle
from national up to local level).
State Archives
• two State Central Archives: Slovak National Archives and State
Central Mining Archives,
• eight State Archives with Regional Territorial Competence,
• and 37 offices of them located in the Districts.
The State Archives established by the Ministry represent the
most important part of the system of Archives.
The State Archives are the only decisive authority as far as the
appraisal of documentary value of registry records is concerned.
The State Archives keep the majority of the Archival Heritage of
the Slovak Republic.
System of Archives
In compliance with Act the Public Archives and Private Archives can be
established.
The Public Archives are
• State Central Archives, State Archives with Regional Territorial
Competence,
• Archives of the state authorities, state budgetary organisations and
state contributory organisations,
• Municipal (towns) Archives, Archives of self-governing regions,
• Archives of legal persons stipulated by law,
• Archives of legal persons and Archives of physical persons that
represent the public administration authorities.
The Private Archives are the Archives of the legal persons (for example
political parties, churches, private legal persons in the field of
economy, banking, education and culture, etc.); they can be
established by a physical person, as well.
Rights and obligations of Archives founders, Archives,
possessors of archives (selection)
Founders of Archives are obliged to
•ensure that the tasks given to the Archives pursuant to Act are
performed by persons with appropriate education and always at
least one person with a university education specialised in
archival studies archival studies and complementary historical
sciences or related fields of study,
•locate the archives in premises that ensure the protection of the
archives and allow access to the archives.
In documents attached to application founder ascertains that
•he is able to financially provide the activity of the Archives so
that the Archives may perform their tasks pursuant to the act
•Archives have sufficient premises necessary for access to
archives.
Rights and obligations of Archives founders, Archives,
possessors of archives (selection)
Archives is obliged to
• process the archives including the elaboration of finding aids,
• issue rules for research, (rules for research must be placed in a publicly
accessible place within the Archives premises.)
• allow access to archives, finding aids and the register of archives that it
acquired.
The possessor of archives is entitled to
• restrict access to archives and determine the scope of restriction and period of
its duration; access to archives may be restricted for 30 years, or for 50 years in
the case of access restricted to ensure the protection of significant public
interests.
Rights and obligations of registry creators
• Registry creators can restrict the access to the registry record stating period of
restriction.
• As to access to registry records the Act No 211/2000 Coll. on Free Access to
Information and Amendments of Certain Acts (FOIA), as amended is applied.
ACCESS TO ARCHIVES
Recommendation of Council of Europe No. R (200) 13 on European
Policy on Access to Archives
Directive 95/46/EC of the European Parliament and of the Council of 24
October 1995
on the protection of individuals with regard to the processing of
personal data and on the free movement of such data
(documents used in the process of formulating basic principles of
access provisions)
Basic principles (transfer)
As far as the transfer of archives is concerned
•classified registry records are not the subject to disposal under Act.
•no classified archives are transferred to the Archives.
•transferred archives are usually older than ten years.
•Civil registers are transferred to the State Archives 100 years after the
last entry.
ACCESS TO ARCHIVES
Access basic principles
Everybody is allowed to access to archives transferred to Archives under
the conditions stipulated by the Act.
Access to archives is the right.
All restrictions to it are strictly stipulated.
There is no general closure period as a rule.
The right to allow or restrict or refuse access is granted to the Archives
only.
Forms of access to archives:
transcripts, abstracts, certificates, copies,
the study and public exhibition of
archives
Originals of archives for study purposes are submitted in exceptional cases
only.
Always copies, if
– it concerns archives created before 1526,
– it contains information with restricted access,
Access conditions
access form
application form
transcripts, abstracts, certificates or copies written application
(costs for copies, verification of conformity with
original archives, verified copy substitutes the original;
administrative charges for verified copies)
study
research list
public exhibition
contract
(exceptional cases, covering of costs – copies,
transport, insurance)
In written application an applicant specifies
• personal identity information (name and surname, birth number (personal
identifier), address of permanent residency or address of temporary
residency; type and number of identification card; the applicant proves his
identity by identification card, travel document (passport), military
identification card, sailor’s book or a residence certificate),
• legal person identity information (name, surname and address of a physical
person or the name, seat and identification number of a legal person), for
needs of whom he asks for access to the archives,
• information about the required archives that he is aware of
• purpose of use,
• declaration stating whether he is the creator of the archives, his legal
successor or the possessor of the archives.
In research list an applicant specifies
all data given in written application +
– the subject of study,
– declaration.
(usage of the information taken from the archives for the purposes specified in
the research list only; specification of the name of the Archives, the title of the
archive fonds and the title and name of the processor of the finding aid from
which the information was gained)
Access restriction to
 Archival information system
– accession book,
– book of deposits,
– information about the proprietorship of archives,
– place of archives location stated in the register card of the archives,
– or to personal data stated in a finding aid.
(access right is not applied ex lege directly)
 archives, if
– upon their use, the safety of the state, its defence, foreign, political, economic
or financial interests could be endangered or if it results from international
treaties by which the Slovak Republic is bound, or from obligations resulting
from its membership in international organisations (significant public interests),
– upon their use, the rights or legally protected interests of living persons could
be endangered, (duration of restriction must be specified; decision on the
restriction on access is always based on the previous decision of the creator or
possessor of archives, which he made when submitting them to the Archives)
– upon their use, damage or the possibility of damage to them could occur,
– it is specified in the conditions under which these were placed in the Archives,
– the applicant seriously breached the research rules of the archives.
(theft, destruction or damage of archives)
Archives can restrict access to archives if the archives are not
processed.
(based on real praxis)
Act No. 71/1967 Coll. on administrative proceedings (the Code of
Administrative Procedure), as amended refers to the procedure
concerned the access restriction decision.
Access to archives cannot be restricted to
•the creator, legal successor or possessor of archives,
•state authorities, municipalities, self-government regions, other
legal persons and physical persons in conjunction with their activity
pursuant to special regulations,
•an applicant, to whom the data contained in archives, refers,
•if not concerning the restriction of access due to reasons referred to
significant public interests, legally protected interests of living
persons, physical condition of archives, breach of research rules,
archives are not professionally processed or if the access was not
restricted prior to disposal procedure.
Appeals against decision on access to archives restriction
Appellate authorities (state authority, Ministry, court)
If the decision on restriction of access to archives refers to
archives placed in Archives kept by
– a legal person established or founded by a state authority,
this state authority shall decide in respect of this appeal; if
it does not represent an authority of state administration,
the Ministry shall decide in respect of the appeal,
– other legal persons or physical persons, the Ministry shall
decide about the appeal,
– a municipality, a self-government region a court shall decide
about the legal remedy against the decision.
Access to personal data in archives
is possible
• after the expiry of 90 years from the day that the record
was created, if not otherwise stipulated by a special act
or international treaty, or
• after submission of a written consent with the verified
signature of a physical person, the personal data of
whom it concerns or, if this physical person is no longer
living, that of his legal representative or a close person.
II. Decree of the Ministry of Interior of the Slovak Republic No
628/2002 Coll. by which certain provisions of the Act on
Archives and registries and on Amendments of certain Acts, as
amended are executed
Concerning
• the appraisal and disposal of records/registry records,
• transfer of archives, protection of archives/registry records,
• Archival Heritage Register of the Slovak Republic,
• access to archives.
• As far as the provisions on access are concerned in case, if
Archives provide copies of archives for study, which contain
information with restricted access, the Archives shall submit
them without such information.
The Act and the Decree has been subject of several amendments.
No one and never in the field of access principles.
III. Personal data protection legislation (Act No. 122/2013 Coll.
on personal data protection and on Amendments of Certain
Acts)
Personal data as an integral part of registry records are not the
subject of liquidation without delay after achieving the purpose
of processing.
The controller provides the liquidation of such registry records
pursuant to the special Act. Special Act is the Act on Archives and
Registries. The documentary value of such records is appraised in
the course of disposal procedure where the decision maker on
their disposal or transfer to Archives is the State Archives. In case
that these records have the permanent documentary value up on
the decision of the State Archives the archives are transferred to
the Archives; the decision includes the date of transfer, as well.
Complaints or appeals against a decision on the
restriction/refusal of access to archives
We register one complaint per year within the last 10 years.
No one has been evaluated as well-grounded.
The most frequent reasons:
• lack of archives versus mistrustful applicant/researcher,
• seeking for access to personal data of other persons
without their consent.
Slovak archival access legislation and proposal for amendments for archive sector to
general data protection regulation – comparison
Ministry of Interior of the Slovak Republic submitted two supporting statements to amendments for
archive sector to general data protection regulation.
Article 4, point 19 bis (new)
« Archive services » : public authorities or, public services or legal persons who, following Union or State
member law, have for main mission or legal obligation to acquire, preserve, appraise, arrange, describe,
communicate, promote, disseminate and provide access to records of enduring value for general interest,
in particular for justification of the rights of the people, or for historical, statistical and scientific
purposes ;
• Act No. 395/2002 Coll. on Archives and Registries and on Amendments of Certain Acts, as amended
regulates the organisation and competence of state administration authorities in the field of Archives
and registries, organisation of Archives, rights and obligations of Archives founders, Archives,
possessors of archives, access to archives, as well as the rights and obligations of registry creators,
• is applied to ALL registry records creators, archives creators, possessors of archives, and Archives
founders,
• system of Archives consists of Public Archives and Private Archives,
• Archives is a specialised workplace that acquires, registers, and processes archives,
• Archives is obliged to
– process the archives including the elaboration of finding aids,
– issue rules for research,
– allow access to archives, finding aids and the register of archives that it acquired.
Conclusion: Definition is full in compliance with Slovak archival legislation.
Article 5, point (b)
b) collected for specified, explicit and legitimate purposes and not further processed in a
way incompatible with those purposes; further processing of data for historical, statistical
or scientific purposes, shall not be considered as incompatible subject to the conditions
and safeguards referred to in Article 83; further processing of data by archive services,
shall not be considered as incompatible subject to the conditions and safeguards referred
to in Article 83bis.
Article 5, point (e)
(e) kept in a form which permits identification of data subjects for no longer than is
necessary for the purposes for which the personal data are processed; personal data may
be stored for longer periods insofar as the data will be processed (…) for historical,
statistical or scientific (…) purposes in accordance with the (…) conditions of Article 83 and
until it becomes apparent that continued storage is no longer necessary; or when they are
being processed by archive services in accordance with the legislation of State members
in accordance with the conditions of Article 83bis.
Act No. 395/2002 Coll. on Archives and Registries and on Amendments of Certain Acts, as
amended stipulates, that
Access to personal data in archives is possible
– after the expiry of 90 years from the day that the record was created, if not
otherwise stipulated by a special act or international treaty, or
– after submission of a written consent with the verified signature of a physical
person, the personal data of whom it concerns or, if this physical person is no
longer living, that of his legal representative or a close person,
The Act defines access restriction to archives also in case, if upon their use, the rights or
legally protected interest of living persons could be endangered,
Personal data protection legislation (Act No. 122/2013 Coll. on personal data
protection and on Amendments of Certain Acts) stipulates, that
• personal data as an integral part of registry records are not the
subject of liquidation without delay after achieving the purpose of
processing;
• the controller provides the liquidation of such registry records
pursuant to the special Act. Special Act is the Act on Archives and
Registries.
The documentary value of such records is appraised in the course of disposal
procedure where the decision maker on their disposal or transfer to Archives is
the State Archives. In case that these records have the permanent
documentary value up on the decision of the State Archives the archives are
transferred to the Archives; the decision includes the date of transfer, as well.
Conclusion:
Wording of Article 5 points (b) and € is full in compliance with Slovak
archival legislation; Slovak data protection legislation is supporting archival
legislation in terms of appraisal of documentary value of registry records.
Article 83, bis (new)
Article 83 bis:
After the initial purposes for which they have been collected have expired,
personal data can be processed by archive services. The missions of
communication and dissemination of personal data by such services are
fulfilled in respect of the rules provided by the Member States for access,
communication and dissemination of public information or archives.
Member States shall provide for exemptions or derogations from the
provisions on the general principles in Chapter II, the rights of the data
subject in Chapter III, on controller and processor in Chapter IV, and the
independent supervisory authorities in Chapter VI for the processing of
personal data carried out by archive services, that is, by Union or Member
State law, eligible for permanent preservation.
Personal data protection legislation (Act No. 122/2013 Coll. on personal data
protection and on Amendments of Certain Acts) stipulates, that
•personal data as an integral part of registry records are not the subject of
liquidation without delay after achieving the purpose of processing;
•the controller provides the liquidation of such registry records pursuant to the
special Act. Special Act is the Act on Archives and Registries.
Article 83,bis (new)
The documentary value of such records is appraised in the course of disposal
procedure where the decision maker on their disposal or transfer to Archives is
the State Archives. In case that these records have the permanent
documentary value up on the decision of the State Archives the archives are
transferred to the Archives; the decision includes the date of transfer, as well.
Act No. 395/2002 Coll. on Archives and Registries and on Amendments of
Certain Acts, as amended stipulates, that
Access to personal data in archives is possible
– after the expiry of 90 years from the day that the record was created, if
not otherwise stipulated by a special act or international treaty, or
– after submission of a written consent with the verified signature of
a physical person, the personal data of whom it concerns or, if
this physical person is no longer living, that of his legal representative
or a close person,
Defines access restriction to archives also in case, if upon their use, the
rights or legally protected interest of living persons could be endangered,
Conclusion:
Wording of Acticle 83bis paragraph 1 is full in compliance with
Slovak data protection archival legislation; is supporting
archival legislation in terms of appraisal of documentary
value of registry records.
With reference to the wording of paragraph 2 it is providing
welcomed possibility to elaborate well balanced provisions
to protect the vital interests in terms of the right to protect
personal data and „the right of the people to know their
history and the principle of access to administrative
information“.
Thank you for attention