Clash between the right of access to archival documents and the right to privacy
The right of access to archival documents is one of the ways of expressing the human right to information, as one of the main safeguards of democracy in the country. In view of the fact that the public’s freedom to form its views is of very great importance, it demands conditions for almost unobstructed access to information, circulation of views and judgements, in order to ensure the fundamental principle – the right of people to know. Therefore the main aim of domestic legislation enshrining the right to information is in implementing the principle of maximum publication of information.
The principle of maximum publication establishes the presumption that all information which is held by State authorities should be published with the only reservation being that “this presumption is not applicable in only a limited number of cases”.
The State authorities are thus obliged to publish information and each member of the public has the corresponding right to receive it. Each time when State authorities try to restrict access to information, they must justify the legality of such action and prove that the information which they are trying to conceal comes within the range of exceptions.
Access to the archives has long been an issue of considerable public interest, after all without it there is no real freedom of choice. In countries with a former totalitarian regime, the archives give the most exact, perhaps the sole reliable impression of a country’s history. This is because under the conditions of such regimes, as a rule, there are no legal means of expressing the diversity of ideas, true behaviour of people and concealed social conflict. Unlike the public image, which such regimes tried to create, their real nature can be revealed only in the huge mass of documents of the police and intelligence services which controlled the people.
The main role played by the archives is seen in their function in forming accurate historical memory and their significance in observing human rights. For example, in the enormous importance which such documentary sources have for people who suffered under the former regime, both direct and indirect victims. The documents of this period are vital for exercising the individual’s right to know what information is stored about a person in the archives, the right to find out about the fate of their relatives who disappeared during the repressions, the right to rehabilitation for prisoners and victims of political repression, to compensation, including for losses suffered by victims of repression, the right to restitution of confiscated property, etc.
In this context, international human rights standards contain a number of general provisions. For example, Article 19 of the Universal Declaration of Human Rights affirms the right to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 27 of the Declaration states that everybody has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
It is undoubtedly the case that freedom of information cannot enjoy absolute protection. An analogous norm enshrining this right in Article 19 of the International Convention of Civil and Political Rights contains the reservation that its enjoyment carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
For respect of the rights or reputations of others; for the protection of national security or of public order or of public health or morals. This position is reflected in Article 10 of the European Convention on Human Rights, where paragraph one declares the right to receive and impart information and ideas without interference by public authority and regardless of frontiers. Paragraph two stipulates that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
These articles demonstrate the conflict of interests and positions which needs to be taken into consideration in the process of access to archival files. At the present time therefore the problem is particularly acute of the link between the constitutional rights enshrined in Article 34 and Articles 31 and 32 of Ukraine’s Constitution. This involves the conflict between the right to information on the one hand, and the right to privacy of correspondence and lack of interference in personal and family life on the other, these being components of the right to privacy.
The right to information is enshrined in Article 34 of the Constitution which guarantees everyone the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. The Constitution stipulates an exhaustive list of grounds for restricting the right to freely collect, store, use and disseminate information, namely: “in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice”.
Thus each specific case for refusing to provide information must correspond to one of the above-mentioned public interests. State authorities are not entitled to impose any restrictions on providing information if such information might not harm the interests envisaged in the Constitution. Article 34 stresses that these restrictions must be established by law.
It should be pointed out immediately that since current international agreements which the Verkhovna Rada committed Ukraine to are a part of Ukraine’s domestic legislation, then besides the requirement to establish these restrictions at the level of law, the restrictions must be necessary in a democratic country as stipulated by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
These legal relations are regulated by a number of laws and subordinate normative-legal acts. For example, Article 16 of the Law on the National Archive Fund and archival institutions which states that “access to documents of the National Archive Fund which contain confidential information about a person … is restricted for 75 years from when the documents were created if not otherwise stipulated by law. Before that period access is available with the permission of the person whose rights and legitimate interests could be violated. If they are no longer alive, then those of their heirs”
According to the Law on the Rehabilitation of Victims of Political Repression from 17 April 1991, No. 962-XII, the right of access to archival files of victims of political repression later rehabilitated is held by the victims themselves, their relatives, and where there is permission from the victims or their relatives – researchers.
The question of access to archival files of a person who was not rehabilitated remains open despite the fact that there are no legal grounds for refusing them access. The stamps “secret” and “top secret” on the basis of which access to information is restricted are not envisaged in any Ukrainian legislation. In the Soviet Union they were introduced by Instruction No. 186 which was also classified. In view of the general rule that normative acts of the Soviet period are applied only when they do not clash with the Ukrainian Constitution, a refusal to allow access to archival files by referring to this subordinate act is unlawful.
Moreover in this case the universal principle of habeas data should apply, that is the right to knowledge by the individual of archival information about himself or herself. If the person has died, this right extends to his relatives. The relatives must also have the right to information about the fate of a person who disappeared during the period of the repressions.
This was affirmed by the important judgment of the Constitutional Court in the case of Ustymenko which became the first case considered by the Constitutional Court at the appeal of a Ukrainian citizen. The exceptional importance of this judgment lay in the recognition of the individual’s right to know information about himself. It is only to be regretted that this subject for the Court’s pride was never enjoyed by Ustymenko since the judgement was never enforced.
However there are quite often situations where the right of the individual to know could possibly clash with the rights of others to privacy.
It must in the first instance be determined whether the information passed to the archives is of such a sensitive nature that its divulgence and publication could create an unacceptable violation of privacy. Article 8 of the European Convention on Human Rights allows interference by a public authority with the exercise of this right only in accordance with the law and where necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
These situations fairly often raise not only legal issues, but moral ones as well. One of the 10 best-known archivists in the world, Terry Cook proposed his model for evaluating confidential information based on three mutually linked factors: programme, agency and the citizen. The programme is the aim of the special government task, and partly fixed, however often different from intention and reality. The agency is the body which implements this government task. Therefore the greater the divide between law and practice, the more sensitive the information gathered at the government’s decision. There is, after all, a big difference between situations where the information is provided by a person themselves (for example, through filling in a tax return) or gathered without the person’s knowledge by the secret police which makes it virtually impossible for the person to control or rectify information about him.
It follows from this that unlike confidential information which is freely provided to an agency, information which is collected and used by an intelligence body without giving the person any chance to clarify or correct it, needs heightened attention. In such a case protection of privacy constitutes several spheres, namely: legislation; conditions for handing it over; obligations of the researcher; technological conditions of work with archives and professional ethics. Only through interaction of these components can the issue of the relationship between the right to information and the right to privacy be properly resolved.
Due to the fact that the right to information and the right to privacy have approximately equal legal force and significance as human rights, in cases of conflict between them the method of constitutional interpretation is applied., this being called the “method of constitutional balancing”.
It is entirely clear that neither total openness, nor absolute secrecy are sensible, and no country in the world has adopted either of these extremes. The question can only be put what openness and what kind of secrecy we require. This means what types of data should be kept secret, according to what circumstances and for what period, for what reason and in the interests of which person or institution. Legislation on access to archives has encountered the challenge presented by the fundamental right of the individual to know and this leads us to the question how much openness is possible and how much secrecy needed.
To use the method of constitutional balancing we can apply the three-tier test used by the European Court of Human Rights to determine whether restriction of access to information is warranted. The principle of restrictions on the right of access to information must comply with three component requirements: the information must relate to a legitimate aim defined by law; divulgence of this information could significantly harm this aim; the harm from divulging this information should be more significant that the harm to public interest in receiving the information. This test is of course not universal, should be considered in each specific cases.
We will use as an example the opening of the Stasi archives after the fall of the Berlin Wall and the revealing of the names of those who worked for the Security Service.
We need at the outset to establish whether this information serves a legitimate aim envisaged by law. It is quite clear that the Stasi archival files can contain confidential information, that is, according to Ukraine’s legislation, information which is held, used or controlled by specific individuals or legal entities and circulated at their wish in accordance with conditions they impose. Thus the said information concerns a legitimate aim defined by law, and directly relates to privacy.
The next thing that needs to be established is whether divulgence of this information could significantly harm this aim. In our case the Stasi archives were used both for compensating victims of repression and to remove from power those responsible for repression. The law on lustration (from the Latin – purification) actually had a provision which prohibited those both formally and informally employed by the communist security Service from holding posts in the new State. Thus the answer to the first two questions is as follows: the right to privacy is indeed protected by law and divulgence of this confidential information could harm this right. The last thing that remains, is to weigh up which is more important: the damage to the right of privacy if the information is revealed or the harm to the public interest if it’s restricted. Here the main issue arises: the grounds for refusing access to confidential information and whether this contains information of public interest.
The central category in law on the public access to information is whether the information is of public importance. Ukraine’s Law on Information does not provide an answer as to which information should be regarded as of public importance, it is therefore worth considering international criteria with the following being worthy of note:
- whether certain behaviour runs counter to public officials’ duty;
- whether an offence is in question;
- whether there are indications of abuse of power;
- whether what is in question is negligence in carrying out duties or improper management of a public authority;
- elements of corruption or fraud;
- whether a public official misled the public through his or her public statements;
Returning to the case cited, it should be noted that the information about individuals who in the course of carrying out public functions violated human rights are of public importance which overrides their right to privacy. Moreover the policy of pardons and amnesties for people guilty of human rights violations carried out to promote national reconciliation in no way influences the right to know of such people so that they cannot use their past for political gain. Therefore the archives in the Stasi were used by civic and private organizations to establish the level of liability of various bodies and individuals for their links with the former GDR regime. This is a safeguard so that those who worked for the communist secret police don’t remain in their posts. On the other hand German legislation did restrict the timeframe for using the Stasi archives to a period of 15 years, up till 2006.
In this context we would like to stress that Ukraine’s Law on State Secrets prohibits concealing information about human rights violations and about abuse by public authorities and their officials.
The example cited here can be checked against the “Kelman Test”. According to this, it should be specified whether the investigation which uses personal information can be reconciled with personal dignity. This ethical test contains two questions:
- What is the risk to human dignity of the divulgence of confidentially passed information?
- Is this risk acceptable given the benefit to an individual or for society which can be defined?
In view of the above it becomes clear that the right of peoples and nations to choose their own path of political changes is to a significant degree determined by the accessibility of their archives.
It is for this reason that a special working group of experts created the International Council of Archives in order to discuss issues linked with the archives of former repressive regimes. This stipulated the collective rights which are directly dependent on access to archives as including the following:
- the right of peoples to integrity and preservation of their written memory. Documents in this context are historical heritage;
- the right to the truth. Citizens have the right to all information about the activities of the regime overthrown;
- the right to identify individuals responsible for human rights crimes. Each people has the right to identify those people regardless of any political decisions regarding them, including their future participation in public life;
Of course the right of access to the archives should definitely be balanced against the right to the inviolability of privacy of victims of repression. In addition, the rights of third parties mentioned in the documents should also be protected. The people who suffered should have the right to make corrections to those documents however change of their basic content must be prohibited. Protection of such information is achieved by establishing in law a period of restriction of access to such information.
We would give separate attention to the concept of a “public official” who is, in many European countries, seen as having a specific position as regards exercise of the right to privacy. The criteria for placing a person into this category in its broader interpretation as a “quasi-public figure” is not only the position occupied, but more importantly specific features directly linked with the activities of such a person. In view of their significance for public life, the sphere of protection of their privacy is considerably narrower than for other members of the public.
One can note that the application of different legal standards for public officials and others is a violation of the constitutional norm regarding equality of people in their dignity, rights and equality before the law. The European Court, in analyzing the different application of laws to different individuals within the context of Article 14 of the Convention, distinguishes the concept of “discrimination” from “legitimate differentiation”, that is, different treatment of people depending on objective reasons.
Thus in most cases the stated clash between freedom of information and the right to privacy is decided in favour of freedom of information. Of course, each country has its own specific features and exceptions. For example, Ukraine’s Constitutional Court decided that the right an individual has of access to his or her archival file “does not concern the right of the victim to know who was carrying out surveillance”. In any case, this is not grounds for refusing access to archival files, since in the entire world the principle applies that “the information is classified, not the document”. This practice needs to be introduced in Ukraine.
The International Council on Archives recommends that “if legislation is not sufficiently specific, archival workers can interpret them on the basis of the legal commentaries of specialists in administrative law. In cases where individual privacy and the right to historical examination are in conflict, one can apply a decision whereby a copy of the original document is used with the name of the victim or third party deleted”.
The way in which the repressive regime ceased to exist determines to a large extent the future of its archives. In Ukraine there was no process of decommunization, therefore among those in power many people implicated in repression and crimes of the totalitarian regime remained in their posts. This prompted fairly restricted access to archival sources concerning political repression. Most European countries have passed laws on state secrets which envisage review of information classified by the communist regime. In Ukraine this process was partially initiated only in January 2009 through Presidential Decree No. 37/2009 “On the declassification, publication and study of archival documents linked with the Ukrainian liberation movement, political repression and Holodomors [artificially created famines] in Ukraine”
In accordance with this, a special sector was created within the structure of the Security Service [SBU] on reviewing archival files of the Soviet period, aimed at analyzing archival documents linked with the Ukrainian liberation movement, political repression and Holodomors in Ukraine which had amassed during the years of the activities of the State bodies of power and governance of the USSR and Ukrainian SSR. It was to ensure that restrictions on circulation and access to specific secret information were removed according to the legally established procedure by revoking the previously imposed stamps of secrecy on archival documents and other material sources of such information if they did not constitute a state secret.
In view of the lack of clarity regarding the future fate of more than 90% of the classified archival legacy of the Soviet period, it would be worth following the recommendations of the working group of the International Council of Archives, namely regulating through legislation the handing over of the archives of the security service to an independent institution of professional archivists.
It is clear that in exercising the right of access to archival documents a number of important issues constantly arise. It is for this reason that the Single Code for archival staff working with documents of the former security service stresses as a basic principle that the archivist is not a censor and that the concept of archival information and procedure for their being opened up are defined by law.
Experience of other countries convincingly demonstrates that such a resolution of the problem is optimum for the protection of the rights of victims and observance of the requirements of legislation, including with regard to the best resolution of the clash between access to archival files and protection of the right to privacy. This in turn will enable the Security Service to concentrate on carrying out its main tasks to which the current Head of the SBU recently drew attention.
PhD student in the Department of Theory and History of the State and Law of the Kyiv Taras Shevchenko National University
In preparing the article, the following sources were used:
Freedom of Information and the Right to Privacy, v. 2: the Right to Privacy, condition sine qua non / Kharkiv Human Rights Group, Kharkiv: Folio, 2004;
Freedom of Information in Ukraine. Improving Legislation and Practice / Kharkiv Human Rights Group. Kharkiv: Prava Ludyny, 2009
N. Petrova, V. Yakubenko: Media Law. Kyiv: Kyivska Typohrafiya”, 2007
Information legislation of Ukraine (as of 1 September 2008). Edited by T. Shevchenko, T. Oleksyuk. Kyiv: Phoenix, 2008.