On April 14, 2022, the Institute for Development of Freedom of Information (IDFI) submitted a legislative proposal to the Parliament of Georgia about amendments and additions to the Law of Georgia - “On the National Archival fund and the National Archives.”
The main directions of the legislative proposal
IDFI proposes to the Parliament of Georgia that the new regulation be based on the following principles:
1. Researchers will be able to access and use archival documents containing personal data for scientific and research purposes, regardless of time period.
2. Restrict researchers from using the personal data disclosed to them for purposes other than research.
According Paragraph 5 of Article 105 of the Rules of Procedure of the Parliament of Georgia, IDFI expresses its readiness to cooperate with the Parliament of Georgia to achieve changes.
Relevance of the Legislative Proposal
Access to state archives still remains a significant challenge. Understanding history is especially important in Georgia and other countries with experience of totalitarian regimes. This, in turn, is directly connected to freedom of information, democratization, a proper understanding of the past (especially the Soviet era) and the formation of the nation's collective memory. The documents preserved in the archives are the primary source for the study of the recent history of the country, they provide an opportunity to understand the most important transformations and raise public awareness about the state governance process. Archival data, on the one hand, is linked to the protection of the rights and interests of the population and, on the other hand, to the responsibility of state officials and institutions towards the public.[1]
When talking about modern archives, it is important to consider the methods and principles of chancellery that were developed during the Soviet rule. Continuation of this practice is considered to be one of the main challenges for the openness and effective operation of archives in the conditions of independent Georgia.[2]
Especially now, by observing the current events in the region, it is important to invest in understanding the modern history of Georgia and in this regard, to provide access to archival materials. In the information, hybrid and full-scale war waged in the region since February 24, 2022, the main role is played by the manipulation of historical narratives and the positive portrayal of Russia (as well as the Russian Empire and the Soviet Union) in the recent past. Standing against this large-scale propaganda is possible only through documentary research.
The need to reanalyze the Soviet Past has been clearly demonstrated by the war in Ukraine. Vladimir Putin's extensive address on February 23 biased and distorted the history of Ukraine, glorifying the Soviet totalitarian state and neglecting his crimes against humanity, including the Ukrainian people. The degree of instrumentalization and propaganda of Ukrainian history by the Kremlin has proved unprecedented. Prior to that, on December 28, 2021, the Supreme Court of the Russian Federation decided to liquidate the latest research center, the International Memorial Society.
Access to archival documents containing personal data for research purposes: Identified problems
The Institute for the Development of Freedom of Information (IDFI) has been working on memory research and archival openness issues for years. In 2018, IDFI reviewed the legislation governing the openness of state archives in post-Soviet countries and the practice of access to archival documents, on the basis of which a research was written. It describes the legislative and practical problems that need to be addressed to ensure greater transparency and openness of the Georgian archives. In this regard, IDFI has identified several key challenges, which are manifested in a number of practical and legal problems in Georgia. One of the main issues here is the data containing personal information.
According to Article 22 of the Law on the On the National Archival fund and the National Archives, access to some documents "containing personal data" is restricted for 75 years. It should be noted, however, that records often allow archives to extend the restriction to a wider category of documents. It should be noted, however, that regulation often allows archives to extend the restriction to a wider category of documents. The Law of Georgia on Personal Data Protection establishes different regimes for different types of personal data, their disclosure for research purposes, in fact, is possible only with the consent of the personal data subject.However, according to Article 7 of the same law, "data on a deceased person may be disclosed for historical, statistical and research purposes, unless the deceased person has prohibited their disclosure in writing."
A similar situation and the leverage to restrict access to documents are explained by the lack of specification of precise criterion for identifying personal data in the law. Consequently, the automatic restriction of access to the documents of the National Archives Fund remains a significant challenge and needs to be adjusted at the legislative level. Creating and maintaining archives is in the interest of the state and it is the state that can exercise control over access to various documents. However, a conflict between freedom of information and the right to privacy / personal data protection is inevitable. It is at the discretion of modern states to strike a balance between these interests, taking into account the public interest.[3]
According to IDFI research, according to international best practice, most state archives issue documents containing personal data for research purposes, while the responsibility for processing and disseminating personal data rests with the researcher himself.
Thus, as substantiated in the legislative initiative, the existing legislative regulation imposes a clearly disproportionate legal obligation on the researcher. Such legislative regulation substantially complicates the proper examination of Georgia's rich archival funds and, consequently, the achievement of the valuable legitimate goals pursued by the openness of archives.
It should be noted that IDFI also addressed the Parliament with a request for legislative changes in 2019, although this was not followed in 2019.
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[1]EXECUTIVE OFFICE OF THE PRESIDENT and OFFICE OF MANAGEMENT AND BUDGET, “MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES AND INDEPENDENT AGENCIES, M-12-18: Managing Government Records Directive,” 2012, https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
[2]Vacharadze Anton, "Regime Archives in Georgia," accessed May 27, 2021, http://www.idfi.ge/archive/?cat=read_topic&topic=141&lang=ka.
[3] Gruodytė E., Gervienė S., Access to Archives in Post-Communist Countries: The Victim’s Perspective, Baltic
Journal of European Studies, Tallinn University of Technology, Vol. 5, No. 2 (19), 2015, pp.148.
