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Seeking more legislative openness
Changing the Laws on Access to Public Data in France
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by Philippe Barbat,
French Records & Archives Directorate,
Abstract
Legislation relative to
access to public data in France was adopted at the end of the seventies. The Government and Parliament wanted to
guarantee, by means of several laws, a certain degree of openness and transparency
in the administrative processes. At the
same time, however, the public authorities also wished to preserve some
interests, like national security or privacy, which needed, or were considered
to need, a high level of secrecy. The paper was presented at a seminar, Records Management Around the
Globe, of the Arkivrådet AAS, the
Swedish Association of Public Sector Archivists and Records Managers, at the
Finlandshuset conference centre in Stockholm, Sweden, in November 2000.
The three essential laws adopted in the seventies
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he three essential laws on personal data protection,
access to administrative documents and archives, described below, aim at
conciliating transparency and secrecy.
More than twenty years after the adoption of these laws, the weight of secrecy
appears too strong in protecting the interests of government policy. But the need for solid
protection for privacy is still strongly demanded, especially in a Latin
country where the frontier between social and private life is considered
crucial. Laws already adopted or due to
be adopted within the next few years, try to adapt the legislation to the
present French society by taking into account its evolutions, and its
contradictions, since the end of the seventies.
January 6th 1978 law: Data processing, files and freedom
This law was adopted in the context of the rapid development of data
processing both in public and private sector.
It was elaborated by a right wing Government in response to the left’s
criticisms that accused it of using data processing to establish an excessive
control on the population, especially by the police.
The law first defines the aims of data processing and the principles
governing its uses. Article 1 says that
data processing must not be prejudicial to human identity, human rights,
privacy and individual freedom. Article
2 also makes clear that no administrative or judicial decision can be based
only on information obtained from data processing.
The law also institutes several rules that administrations and companies
have to comply with in order to be authorized to create personal data
files. These rules concern essentially
the uses of files and data retention periods.
If they are not correctly applied, a file becomes illegal and therefore
can be partially or totally destroyed.
Right of access
Articles 34 to 40 of the law are devoted to the right of access to files
created in compliance with it. This
right is given exclusively to the person concerned who can ask if the file
contains any information relevant to him or her (Art. 34). The person concerned can have access and/or
get a copy of this information (Art. 35) and get a modification of the details
if they are wrong (Art. 36).
For files concerning national security, defence and public security,
however, the right of access cannot be exercised directly by the person
concerned. For such files, he or she
must apply to the National Commission on Data Processing and Freedom (see
below), which appoints one of its members to access the file on behalf of the
person concerned, and to check if the information relevant to this person is
fair (Art. 39).
Lastly, medical information is accessible to the person concerned
through the intermediary of a doctor appointed by him or her (Art. 40). This rule relative to access to medical
information is not specific to the January 6th 1978 law, but is a
general principle of French law. It is
now called into question, and a law project is now being prepared, which aims
at allowing a direct access to medical information for the person concerned.
The National Commission on Data Processing and Freedom
Article 6 of the January 6th 1978 law creates a National
Commission on Data Processing and Freedom that controls the implementation of
the law by informing the persons concerned of their rights and duties and by
monitoring the way data processing is applied to personal information.
This Commission is an independent administrative authority, which means
that it is not hierarchically linked to any government ministry. This kind of administrative status is very
unusual in the French public law, which is essentially based on the principle
of hierarchy. In this way, the
legislators wanted to make it clear that the Commission was not subordinate to
any government or subject to political pressure.
The Commission has very wide powers.
It can, for instance, ask a magistrate to investigate on its behalf. It is also consulted for each law project
related to information or data processing.
The 17 members of the commission (members of parliament, magistrates and
computer scientists) are assisted by administrative services.
July 17th 1978 law: Access to administrative documents
Administration’s lack of openness
This law is the result of an initiative of the Parliament. The members of Parliament considered that the
French administration did not take the citizens sufficiently into account. They wanted people to be aware of the
administrative processes, in order to improve democracy within the work of
public services.
That’s why in a law project submitted by government, they decided to
include articles aiming at making administrative documents accessible to
public.
Right of access
Article 1 of the law gives a very broad definition of administrative
documents, which can be of all forms or media.
The definition actually includes all documents created or received by an
administration, whether central or local.
It excludes, however, judicial documents, according to the principle of
the separation of powers.
All administrative documents are accessible to anyone, according to
Article 2. But this very wide right
given to people is limited by Article 6, which allows the administration to
refuse access to documents concerning essentially national security, defence,
foreign affairs, public security, privacy and commercial interests. The law is thus based on an alternative: the
document is immediately accessible, or it is not, depending on its content.
However, a specific right of access is given to the person concerned by
the administrative documents. In this
case, privacy concerns cannot be used in order to refuse access.
Lastly, concerning medical information, the person concerned can access
it through the intermediary of a doctor.
This is the same system as the one instituted by the January 6th
1978 law for medical files.
The Commission on Access to Administrative Documents
In order to prevent a too restrictive interpretation of the law by
administration - the French administration has a very long tradition of secrecy
- Article 5 creates a Commission on Access to Administrative Documents, linked
to the Prime Minister’s services. The
Commission can be involved by anyone whose access demand has been refused by an
administration. It then gives an
opinion on access to the document that was refused. Although the administration is not forced to follow the opinion
if it favours the petitioner, which often happens, the Commission’s opinion is
usually applied.
The commission also gives advices, at the administration’s request, on
the rules governing the communication of administrative documents. The importance of its mission of arbitration
is now acknowledged both by administration and public.
January 3rd 1979 law: Records and archives
All kind of records and archives
In order to complete the law system concerning the access to public
data, the Government presented to Parliament a law project concerning records
and archives. This law was the first
one in this area since 1794! It is not
just concerned with matters of access, but also gives a definition of records,
whatever their age, form or medium, fixes rules for the disposition of these,
and institutes a procedure for the safeguard of private records having a major
historical interest.
Unlike the two other laws concerning access to public data, the law on
records and archives was rather easily adopted by Parliament. At this time, records and archive were not
considered as a major political issue, but only as the basic material for
historical research.
Right of access
Articles 6 to 8 of the January 3rd 1979 law define the right of
access. It only concerns public
records, since their owners define access to private records in French
law. In this field, the 1794 law
mentioned above was very liberal, since it established a principle of free
access to records and archives. During
the 19th and 20th centuries, administration, by means of
decrees and circulars, restricted the right of access by creating exceptions
for some of their own records. This
resulted in a very confusing situation that made the intervention of
legislators necessary.
The French legislators were very, some would say, too cautious in 1979. Taking into account restrictions created by
administrations during many years, the legislators replaced the principle of
free access with a 30-year common law delay for all records and archives
(Article 6). They also gave the force
of law to the delays established by decree or circular (Article 7). As a result, if the January 3rd
law gives a complete regulatory frame for access to records and archives, which
guarantees that every public document will be accessible some day, the delays
are very long: from 60 years from the date of the document for defence,
national security and privacy to 150 years from the date of birth for medical
files. Some delays are difficult to
justify. For instance, a delay of 100
years from the date of the document applies to records of statistic inquiries
concerning individuals, whereas privacy is only protected by a 60-year delay.
In order to soften the rigidity of this system, the legislators allowed
the public the possibility of consulting inaccessible records by dispensation
(Article 8). Everyone, professional
researcher or not, can ask for a dispensation. The French Director of
Records and Archives gives authorization, but his decision is submitted for the
compulsory agreement of the service that transferred the documents to a public
repository. Nowadays, thousands of
dispensations are asked each year, and about 90% are agreed. The person authorized to consult documents
by dispensation must agree not to publish any information collected in these
documents relating to national security or privacy.
Dispensations can also concern archival series that are inaccessible
according to the law. The Minister of
Culture can decide, still with the agreement of the service that produced the
documents, to make these series accessible for everyone. This procedure often been used in recent
years in order to open the access to records of the Second World War.
Implementation of law controlled by administration
Unlike the two other laws relating to access to public data, the January
3rd law on records and archives did not create any Commission or
independent authority in charge of overseeing good implementation of the
law. Therefore, this implementation is
only controlled by administration without any mediation. Under those conditions, one can understand
that the law, which was not extremely liberal as such, was often interpreted in
a restricted way, which was prejudicial to the public.
Present and future legislative
changes for access to public data
The juridical point of view
Since the beginning of the nineties, courts and jurists have underlined
the lack of harmonization between the three laws relating to access to public
data. It seemed that each of these
laws, though adopted at the same period of time, followed its own logic without
taking the other two into account.
The harmonization between the July 17th 1978 law on
administrative documents and the January 3rd 1979 law on records and
archives was, for instance, inadequate.
Although all administrative documents are public records, no link was
established between the two laws in order to determine the delay applicable,
according to the January 3rd 1979 law, to inaccessible
administrative documents according to the July 17th 1978 law.
As for the January 6th 1978 law on data processing, the right
of access it established for the concerned person was exclusive of all other
right of access based on another law.
As a consequence, personal data processing files were not accessible for
third persons.
All these lacks were prejudicial to the public and made an intervention
of the legislators necessary.
The public’s point of view
For many years, access to public data was not considered by the French
as a crucial issue. French people were
used to the tradition of secrecy of the French administration, based on the
principle of “raison d’Etat” (“reasons of State”), which
was defined in the 17th century.
Any contesting of this situation came only from a very small minority.
Since the nineties, however,
two social phenomena incited the French to ask more openness of the
Administration. Firstly, the
development of the information society gave a bigger social influence to the
Media that strongly claimed easier access to public data. The Media underlined the bad consequences of
the administration’s opaqueness in some scandals, like the bombing of the
Greenpeace ship, the Rainbow Warrior, in the Auckland, New Zealand, harbour and
contaminated blood. Media campaigns
like these awoke public sensitivity about public data issues.
Secondly, the increasing social importance of the concept of memory duty
focused historians’ and the Media’s attention on certain types of records
relating to the Second World War and other periods of the French history, like
the Algerian war.
In particular, the despoilment of the French Jews between 1940 and 1944
has been a great issue in France for the past two years. The Prime Minister created a Commission
responsible for evaluating the extent of the prejudices against the Jews by the
Vichy government (the Commission on Despoilment of French Jews’ Goods). For its work, this Commission, whose
conclusions were published last May, used a great many records from the period
1940-1945. This provoked a public and
Media debate about the fact that most of the records from this period are still
inaccessible to public.
At the same time, however, the need for privacy protection stays very
strong in France. The French consider
privacy as the guarantee of individual freedom. For instance, the French Media were very shocked by the Kenneth
Starr report on the Clinton-Lewinski affair, which was seen as breach of
privacy. The paparazzi were also
very often considered to be responsible for the death of Princess Diana,
because of the harassment they imposed on her.
That is why the legislators’ task in the matter of access to public data
is not easy, since they have to conciliate two contradictory desires of the
public, which demands both openness and privacy. The laws recently adopted, or which will be adopted soon, try to
conciliate these two demands.
The recent laws for access to public
data
April 12th 2000 law: Citizens’ rights dealing with Administration
Though it has a very general title, this law, prepared by the Government
and adopted by Parliament last spring, is a rather technical text that aims at
modifying lots of French laws, codes and regulations.
In the field of public data, the objective of the law was to improve
harmonization between the three laws on access to public data. Several dispositions were included in order
to reach this goal. The most important
of these are that access to public personal files becomes possible for third
persons on the basis of the July 17th 1978 and January 3rd 1979 laws. Secondly, it gives the Commission on Access to Administrative Documents the competence to survey the implementation of the January 3rd 1979 law on records and
archives. As a consequence, the Commission
can, from now on, be invoked by researchers whose demands for access by
dispensation are refused. The
Commission has already given its first opinions in some cases, and has been
largely in favour of the researchers.
Another disposition, of great juridical importance, establishes that
administrative documents that are inaccessible according to the July 17th
1978 law become accessible after the expiry of the delays instituted by the
January 3rd 1979 law. Thus,
the link between the two laws is established and guarantees that any
administrative document will be available some day.
All these dispositions, however, do not mean that the April 12th
2000 law aims only at increasing openness of access to public data. One can even think the contrary, when considering
that this law deleted the possibility left to the administration to give access
to administrative documents by replacing “can” with “must”, in the July 17th
1978 law’s Article 6 (see above): “Administration must refuse access to
documents concerning national security, etc.”
To sum up, if this law gives very good answers in the field of juridical
harmonization of the laws relating to access to public data, it cannot be
considered, however, as a big step in the direction of openness.
October 24th 1995 European directive: Personal data protection
France is very late in the process of applying this directive to French
law, for it should have been adopted in the French law by 1998. This delay can be partly explained by the
fact that the January 6th 1978 law, which the directive will
replace, is a complex text on a juridical point of view, which makes the
transposition complicated.
The Ministry of Justice, which is in charge of the transposition, has
indicated that the law project will not call the January 6th 1978
law’s principles into question. In
particular, this concerns the use of data processing for founding judgments on
individuals. In this very sensitive
area, some French public authorities consider the level of protection proposed
by directive is not strong enough compared to the present national law.
The transposition is unlikely to upset the progress made by the April 12th
2000 law concerning harmonization of the laws relating to access to public
data.
Modifying January 3rd 1979 law on records and archives
The first version of this project goes back to 1996, which shows the
difficulty in changing the law in the records and archives area in France.
Government decided to modify the legislation relating to records and
archives for two main reasons. Firstly,
the January 3rd 1979 law was part of the process of harmonization of
laws concerning public data. Secondly,
the public authorities had to answer criticisms of the law made not only by
jurists but also by historians. Among
other comments, a famous book, “Forbidden Archives”, written by the
researcher Sonia Combe, pointed out severely the lack of openness in the
French administration, especially concerning access to Second World War
archives.
As a result, the Government asked the French Directory on Records and
Archives, part of the Ministry of Culture and Communication, to prepare a law
project modifying the January 3rd 1979 law, essentially in order to
shorten the delays of access to documents.
For the first time, the French Directory on Records and Archives
prepared a law project concerning not only access, but also other issues
relating to records and archives, like transfer, private records, or documents
produced by politicians.
This project was submitted to other ministries during 1999, and then
examined by the Prime Minister’s cabinet in January 2000. Unfortunately, mainly because of political
changes (the French Minister of Culture and Communication was replaced last
April) the project was delayed. Then,
the new Minister finally decided last summer to reduce the project to only
access issues.
Now, the position of the Government is to link the dispositions relating
to access to records and archives to another law project, which could be the
one relating to the information society.
These dispositions are not definitely fixed yet. However, the 30-year common law delay will
probably be deleted and replaced by the principle of free access to records and
archives. Moreover, the special delays
will be reduced and no delay will be longer than 100 years. If the timetable fixed by government is
followed, the project will be submitted to Parliament in 2001.
Conclusion
In order to break with the tradition of secrecy that characterises the
French administration, the Government seems now decided to build a legal
framework that will ensure more openness.
By allowing access to personal public files to third persons and by
giving to the Commission on Access to Administrative Documents the competence
to survey the January 3rd law on records and archives, the April 12th
2000 law, it is certainly taking the first step in the right direction.
But real openness cannot be
reached without a reduction of the delays relating to access to records and
archives. We will see, in the following
months, if the Government and the Parliament are ready to agree on this
reduction and, thus, to provide France with legislation in compliance with the
requirements of transparency appropriate for a democratic country.
The Author
Philippe Barbat was educated as an archivist
and a palaeographer at the École Nationale des Chartes in Paris, where he
completed a thesis about Franciscan literature describing Palestine at the end
of the Middle Ages. He was admitted to
the National Heritage School, where he studied records management and the
archives administration. Since 1997, he
has worked for the French Records and Archives Directorate of the Ministry of Culture where he is
responsible for developing records schedules relevant to police and justice
administrations. He is a member of the
editorial committee in charge of the future ISO Records Management Standard,
ISO15489. In 1999, he became the
coordinator of a project that is likely to result in a new French law for
records and archives.
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