Release or otherwise of SHD records
The majority of the records held by SHD are public records. A new Records Law was passed on 1 July 2008 and published in the French official legal gazette the Journal officiel on Wednesday 16 July 2008. Article 17 of this law makes sweeping changes to articles L 213-1 and L 213-2 of the Heritage Code regarding the release or otherwise of public records, as these have been defined since the Records Law of 1979.
Time rules regarding release of public records
Public records are open immediately, with the exception of documents whose disclosure might pose a threat to the interests of individuals or the State or to industrial or commercial interests protected by law. These documents must be opened after a period of between 25 and 100 years, depending on the nature of the information they contain.
Records "which if released are likely to lead to the dissemination of information allowing individuals to design, produce, use or identify the location of nuclear, biological, chemical or other weapons with similar direct or indirect destructive effects" are permanently closed.
Protecting the interests of individuals
Documents which if released could jeopardise medical confidentiality are released 25 years after the death of the party concerned. If their date of death is not known, the period is one hundred and twenty years after the person's date of birth;
Documents which involve the private life of individuals, contain an assessment or value judgement about a natural person who is mentioned by name or can be easily identified, or portray a person's behaviour in a way that could be prejudicial to them are usually subject to a 50-year rule before they can be released.
This period is extended to 75 years (or twenty-five years starting from the date of the interested party's death if this period is shorter) and even to 100 years in the case of documents relating to a minor:
- for documents whose release could jeopardise statistical confidentiality when the document relates to data gathered by means of a questionnaire pertaining to facts and conduct of a private nature;
- for documents relating to inquiries carried out by judicial police departments. An additional period of 100 years applies to these documents if their release could jeopardise the privacy of individuals' sexual lives;
- for documents relating to cases brought before the judiciary, subject to particular provisions regarding judgements or the execution of judgments. An additional period of 100 years applies to these documents if their release could jeopardise the privacy of individuals' sexual lives;
- for records and files of government- or court-appointed officials responsible for keeping or drawing up authentic documents;
- for registers of births and marriages, starting from the date they are closed.
Protecting the interests of the State
The principle items protected by the law are:
- information which could jeopardise the confidentiality of discussions held by the government and authorities with executive power, the conduct of foreign relations, the national currency or public borrowing (25-year period starting from the date of the document);
- information which could jeopardise the safety of the state, public security or national defence secrets (50-year period starting from the date of the document).
Protecting industrial and commercial interests
The law protects:
- Confidentiality relating to commerce and industry (25-year period);
- Confidentiality relating to statistics (25-year period).
Release of public records: individual cases
As with the 1979 law, problems can sometimes arise over interpretation of the law and these are referred to the Commission for access to administrative documents (Commission d'accès aux documents administratifs - CADA) for an opinion. Opinions delivered by this body since it was created have helped to clarify notions such as privacy, medical confidentiality, etc.
Citizens may petition CADA in any circumstance in which the authorities have imposed a time rule for release which they feel to be without just cause.
Classified documents
Classified documents in all protection categories (confidential defence, secret defence or top secret) cannot by released before a time limit of 50 years, and in the case of top secret defence documents, they must be declassified before being released. The period is extended to 100 years if the release of the documents could jeopardise the safety of individuals who were involved in intelligence operations and are mentioned by name or can be easily identified.
Personal files and nominal rolls
The time rule for release of these documents is 50 years starting from the date of the last document filed in the dossier. However, if the file includes or is made up of documents whose release could jeopardise medical confidentiality, it is released 25 years after the death of the party concerned. If their date of death is not known, the period is one hundred and twenty years after the person's date of birth.
N.B. The mention of wounds or illnesses is not a matter of medical confidentiality unless the information was actually drawn up by a doctor or a team led by a doctor.
War diaries and log books
Release of war diaries and log books is subject to a 50 year time rule, unless they contain information which could jeopardise the safety of individuals who were involved in intelligence operations and are mentioned by name or can be easily identified (in which case the period is extended to 100 years).
Ascertaining legal time limits in advance
In many cases, it is impossible for the record service to deduce in advance the legal time limits applicable to a file on the basis of the information it has about the file. In such situations, once a viewing request has been made, the contents of the documents will need to be ascertained, and the waiting period will therefore be longer before they can be viewed.
Applying for an exemption to consult public record documents before the legal time limit for their release has expired
The Heritage Code stipulates that the record authorities may authorise individuals to view public records before the time limits stated in articles L213-1 and L213-2 of the law of 1 July 2008 have expired.
Decisions regarding records produced or held by the Ministry of Defence are the responsibility of the Defence Minister currently in office. The Defence Historical Service receives and investigates all applications for exemptions relating to the records in its keeping. The Minister delegates the head of the Historical Service to act on his or her behalf in decisions regarding requests relating to personal files. Other requests are forwarded to the Department of Memory, Heritage and Records at the Ministry of Defence or to the Secretariat-General for National Defence if the request relates to documents produced by that department, and these departments inform applicants directly of the Minister's decision.
If their request is refused, the party concerned may petition the Commission for Access to Administrative Documents (CADA) for an opinion no more than two months later, pursuant to law no. 2000-321 of 12 April 2000 on citizens' rights in their relations with government departments.
Release of documents obtained from private sources
Records from private sources are either handed over to the ownership of the Historical Service (by means of a bequest, gift or payment in kind) or simply deposited with the service for safekeeping. The conditions that apply to these records are stipulated by their owners in consultation with SHD at the time they are handed over. Owners may request among other things that documents only be viewed with their prior permission.
To find out more
Code du patrimoine (Heritage Code), Book II, articles L213-1 to L213-9.
Claire Bernard-Deust, Agnès Dejob, "Implications of the new Records Law for professional archivists", Histoire@Politique. Politique, culture, société, Issue no.8, May-August 2009.