04.03.06
Princípios gerais para uma política arquivística /UNESCO(Eric Ketelaar)
Sonia Negrao
Em resultado do vazio jurídico que imperava no seio dos arquivos, a UNESCO desenvolveu uma série de estudos com vista à supressão desta realidade. O estudo Archival and records management legislation and regulations:a RAMP study with guidelines, da autoria de Eric Ketelaar, surge neste contexto. Nele, o investigador estabelece uma série de princípios gerais a que toda a política arquivística e consequente legislação, de qualquer país, deveria respeitar.
Sendo, então, este estudo e os princípios que enumera de crucial importância para o estudo e conhecimento da política arquivística nacional e respectiva legislação, achei por bem publicá-lo no site.
Atenção, o texto decorre em inglês. No caso de quererem aceder a todo o estudo (em veraõ PDF), deverão ir ao site www.ica.pt.
5. GUIDELINES FOR LEGISLATION AND REGULATIONS.
5.0 Introduction.
187. This chapter provides a summary of the main subjects which.should be
considered for inclusion in archival legislation and regulations. A
number of these subjects have already been treated in the NATIS
guidelines (chapter IV and V>, but in order to present a set of selfcontaining
guidelines, this study cites,where appropriate, the relevant
parts of the NATIS recommendations as NG, with the paragraph
number. Other references are to paragraph numbers in the present
study.
188. This summary distinguishes between essential subjects that should
be treated in the law and matters that are desirable or optional and
that could be treated in regulations. The greatest care must be taken
in applying these guidelines to the structure and objectives of the
archival services in a given country. Regulations can more easily be
changed than laws and offer consequently a flexible basis for the
implementation of archival and records management programmes. Their
flexibility, however, could prove to be a disadvantage in times of
political or financial difficulties since archival and records management
programmes may be altered through simple change of
the regulations or even through interpretation of too flexible
regulations.
Regulations issued by the minister responsible for the Archives may
lack the necessary authority with institutions responsible to other
ministers. Therefore the law should define clearly the distribution
of competencies and authorities.
In most countries the hierarchy of legislation includes, after the
law (act of Parliament) but before ministerial regulations, ordinances
, decrees- etc. issued by the Crown, the President, or the
Council of ministers, etc. Where possible, regulations with such a
supra-ministerial authority are preferable to regulations by a
minister or by the archival administration itself. In general, the
demarcation between the law and regulations depends to a great
extent on the legal tradition and administrative practices in a
particular country.
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5.1 Definition of records and archives in qeneral (see para.13-25).
189. Every archival law should define public records in order to avoid
ambiguity about the scope of the responsibility of the National
Archives (NG para. 125). To set out the difference between archival
legislation and legislation in -other information fields, it is essential
that the definition of records makes it clear that records are
created, received and maintained by an institution or individual in
the transaction of its business. It is not always advisable to restrict
the definition to public records, because legislation will
necessarily affect, to some extent, private records and archives.
190. Enumeration of physical types or forms in the definition of records
always lags behind new technology, and thus creates continuing problems
of interpretation /l. Therefore a definition in general language,
covering recorded information, regardless of physical form or characteristics,
is essential (NG para. 126). Such a general definition
could be elaborated in regulations or a circular letter, by giving a
non-exhaustive enumeration of types and forms of documents and other
materials that are included in the definition.
5.2 Definition of public records and archives (see para. 26-32).
191. It is important that legislation for public records should be
applied not only to the whole range of bodies which discharge the
legislative, judicial and administrative functions of the State,
but also to State-controlled corporations and all other organizations
directly or indirectly controlled by government, which can be considered
as public bodies. Failure to provide for statutory control over
the widest possible range of public bodies defeat much of the purpose
of archival legislation(NG para. 127).
A definition referring to the origin of records (i.e. to provenance)
tends to reflect the professionally accepted definition of records
(P ara. IS), rather than a definition that refers to ownership. The
last type, however, which has been linked with the British concept
of undisturbed custody of records as the basis
i
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for their evidential value, is used where the intention is to include
historical manuscripts and other documentary property belonging
to the State. Whatever method of definition is used, it is desirable
to ensure against omission or future changes in the status of public
bodies by providing some formal means, without resort to new legislation,
of extending statutory control to any records which on grounds
of a technical interpretation of the definition or for other reasons,
appear to be excluded (NG para. 127).
5.3 Inalienability and imprescribility of public archives.(see para.33-37).
192. Public archives are public property, part of the public domain,
and therefore inalienable and imprescribable. These qualities of
archives may, depending on the law of a given country, be made
explicit in an archival law. The National Archives should have a
right to replevin (or, at least, a right to make copies) of public
archives which have gone astray (NG para. 145).
5.4 Non-public archives (see para 38-50).
193. The National Archives should be entitled by law to acquire private
archives (NG para.143). Legislation should be considered making the
National Archives responsible for the compilation and maintenance
of a register of all archives of non-public provenance and all documentary
collections with research value. The law sh&ti$d ob&ige owners
and custodians of such registered archives to preserve them in the
best available conditions. Any change in the place of their deposit
should be rep&ted; and any proposal to sell or otherwise dispose
of them should be referred to the appropriate authority. Export of
such archives should be forbidden, or should be subject to the approval
of the competent archives authority (NG para. 159). The State
may be given a right to preferential purchase of private archives.
5.5 Functions and orqanization of public archives services (see para 51-61
194. The following functions of public archives services (national,
regional, local and special archival institutions) should be statutory
, apart from records management functions outlined in paragraphs
200 and 201 :
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(i)
(ii)
(iii)
(iv)
(v>
(vi>
(vii>
(viii)
the safe custody in suitable buildings and in suitable
environmental conditions of all(nationaT)archives, from
whatever public or non-public source transferred, including
archives in audio-visual, machine-readable and all other forms;
the arrangement and classification of archives according to
accepted archival principles and methods;
the provision of means of reference by whatever means are available
and appropriate in order to facilitate access to archives and
the retrieval of information in them;
the provision of search or reference rooms in which suitable
facilities are available for the inspection of archives
which are lawfully open to the public,and the provision of
other reference services (for dealing with postal inquiries,
etc.) which are necessary;
the provision of facilities for making copies of archives by
photographic or other reprographic processes, and for selling
such copies;
the provision of facilities for the repair and conservation
of archival material of all kinds by appropriate methods;
the publication of guides, texts, calendars, inventories,
finding-aids and any other works suitable for publication
prepared by staff of the Archives or commissioned by the
Archives;
the promotion of the educational value of archives in appropriate
ways including the preparation of exhibitions
and the loan of documents to exhibitions organized by other
institutions. (NG para.148).
195. The formal authority to take actions in respect of public records
may be vested with the Minister or with the National Archives or
some supreme archival authority. The NATIS Guideline (NG para.151)
does not express a preference. There are good reasons, however, to
prefer a distinction between professional and political responsibilities,
__._- -. --.- -_.-- -- -.--
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to be reached by giving the National Archives a form of selfgovernment
and keeping them somewhat independent from the Minister.?
In most countries it is not a task for legislation to define the
internal organization of any organization or its staffing arrangements.
It is essential, however, for public archives legislation
to authorize the appointment of the head of the National Archives
and to define his statutory duties and responsibilities. Details
of internal structure and organization, which require some degree
of flexibility to meet changing conditions, and the recruitment and
qualifications of staff, are matters for which statutory authority
is usually considered unnecessary and may be dealt with by the general
staffing regulationsdrawn up for the Government service(NG para.149).
196. Regarding the internal organization of archives services, inclusion
in the law may fix the organization, leaving not much possibility
for development and necessary changes. Delmas /3gives a theoretical
organization chart of an archives service in three stages of growth./4
In 1977 the following principles were adopted by The National Association
of State Archives and Records Administrators (United States) to
assist the several States in the establishment and operation of State
archival and records management agencies :
I. Legislation.
Comprehensive legislation which recognizes the fundamental nature
of the relationship of government records as instruments of accountability
by the government to the people, evidence of public and
private rightsand obligations, an informational source on matters
involving the continuous administration and management of the
government;preserves the patrimony of the State as evidenced in its
records; and provides exclusive authority to carry out archives
and records management functions and responsibilities on a government-
wide basis.
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II. Institutional identity.
The institutional character of the agency as the repository of the
permanently valuable records of the government to provide sufficient
autonomy for its protection against political interference, including
tenure for the agency head, civil service protection for its
personnel; and control of agency facilities, equipment and resources.
III. Organizational placement.
Placement within the government that prevents the submission of
the agency beneath competing interests; eliminates blurring of
functions with other professional agencies and disciplines; protects
against interference with agency program responsibilities under the
color of coordination authority; and eliminates hampering supervision
and control by having little or no professional knowledge of its
program responsibilities and operations.
IV. Program authority.
Sufficient authority for the agency to define records problems and
needs of the State, to prescribe appropriate programs, and to effectively
administer the programs.
V. Exclusive responsibility.
Exclusive program responsibilities that do not diffuse the primary
responsibility of the agency for government records.
VI. Appropriation and expenditure.
Funding by direct appropriation to the agency by the Legislature
with authority to budget and expend such funds.
VII. Internal policy.
Exclusive agency determination.of the internal policies and professional
needs of the agency.
VIII. Regulations and standards.
Power to prescribe and enforce rules, regulations and standards
relating to government records administration. /5
-... ----.___- -- ~.. ..--. .--.--.
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5.6 National archives system (see para.62-69).
197. Always a matter of legislative concern, the organization of public
archives is closely related with the administrative system of each
country. /
6
In any circumstances it will be necessary to establish a
central organization, with executive and advisory functions, responsible
to a Minister charged with the implementation of an agreed national
archives policy (see paragraph 198). In some countries it would be appropriate
for these co-ordinating functions to be exercised by the
National Archives, or at least by a separate Directorate within it; in
some it would be more suitable to create a separate executive authority;
and in others, where it is constitutionally impossible to provide
central direction, it should be possible to achieve some measure of
co-ordination by a suitably constituted Advisory Council, with
no executive powers (NG para.161).
5.7 Ministerial responsibility csee para.70-72).
198. A matter which requires legislative action and which demands careful
consideration is the choice of the minister responsible for the
archives (NG para.150)./7 The Natis guidelines review the arguments
for placement of the archives under the minister for cultural affairs
and express a preference for a minister who has a considerable degree
of inter-ministerial influence or authority. Such a preference is based
on the fact that an archives service should be deeply involved in
across-the-board records management activities which might be more
effectively performed with the support of such a minister. This matter
was discussed during the 19th International Conference of the Round
Table on Archives /8, which advocated placement at the highest level I
of inter-ministerial or supra-ministerial authority. But in this
respect no system can be said to be ideal /9, especially lyhen one
takes into account that the best placed minister is the one personally
interested in the work of the archives, and.such placement cannot
be guaranteed by legislation. I
5.8 Advisory Body (Archives Council! !see para., 73-83). I
199. In some countries there may be a preference to give the Archival
Council executive and/or supervisory powers, depending on the stru- I
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ture of the national archives system (see para, 197) In most
archival laws however, the Archives Council is simply an advisory
body to enlist the participation/representation of producers and
users of archives in the formulation and implementation of records
management and archival policy / 10 . The law should determine the
function, the main responsibilities and the composition of the
Archives Council. The details of its membership and functioning
should be regulated in regulations / 11 .
The Council should be consulted on all projects of a legislative
chracter relating to records/archives, the establishment or modification
of the archival network and all draft records schedules.
It may be desirable to also consult the Council dn postponement
of transfer, restriction of access, and the training programme.
The Council may be called upon to participate in the drafting
or revision of archival legislation and/or regulations.
The law should specify that the Archives Council consists of members
ex officio (among them the National Archivist) and members appointed
by the Head of State or the Council of Ministers.
5.9 Records manaqement.(see para. 84-92).
200. The seventh International Congress on Archives (1972) highlighted
the lack, in nearly all except the socialist countries, of special
legislation which clearly formulates rights and obligations of administrative
archives./12 The degree of control exercised by archive
services over current records varies widely from one country to another.
/13 The very minimum should be a right of inspection (see
para.202), together with control over appraisal, destruction and
transfer (see paras. 204 and 205). The involvement of the National
Archives in records management /
14
should preferably -extend to the
formulating of standards, procedures and guidelines and training of
agency records offices. Maximum involvement -statutory responsibility
for the whole range of records management functions-(desirable
as it would appear to be),will not be feasible in many countries, .
and indeed, in the USA there has been a recent revision in this position.
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201. Regulations and/or circulars should regulate :
- responsibilities of the registries
- professional qualifications, training,
- records creation (incl. forms management, standards on media,
equipment and supplies, paperwork management)
- filing (filing plans may beapproved by the National Archives)
- security classification
- arrangement and description of records
- consultation, lending (communication of records/archives)
- reprography
- vital records management
- preservation
5.10 Right of inspection (see para. 93-99).
202. The legal link between records management and the Archives is formed
by giving the latter a right of inspection, not only regarding the
disposal of records, but, in principle, of all records management
functions and operations involved with current and semi-current
records. Inspection is useless without a provision for sanctions
as an ultimate remedy.
5.11 Records centres (see para. 100-102).
203. There should be legislative authorization, where possible, enabling
a National Archives to establish and operate records centres if circumstances
demand such action. , power to compel government departments
and agencies to transfer non-current records to a records
center is also necessary (NG para. 133).
5.12 Appraisal and destruction (see para. 103-115).
204. The law should oblige all bodies producing public records not to
destroy without account being taken of long-term research values,
and the National Archives must have responsibility for ensuring
that such values are indentified and that records of research
D
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interest are preserved (NG para. 132).
5.13 Transfer (see para. 116-131).
205. The main statutory requirement for transfer is that public records
selected for permanent preservation (which have been in existence
for more than a prescribed number of years) should be transferred
to the National Archives (NG para. 134).
5.14 Deposit of official publications- (see para. 132-136).
206. Prescription of legal deposit of books and other printed publications
does not belong to the domain of archival legislation. However, a record
copy of every government publication should be deposited in National
Archives, whether or not a legal deposit with the National Library exists.
5.15 Preservation (see para. 137-142).
207. The first responsibility of the National Archives,and indeed of any
archival institution,is the safe custody in suitable buildings and
environmental conditions of all archives. Legislation should authorize
the National Archives to provide for facilities for the repair
.and conservation of archival material (NG para. 148). The
regulations should lay down security measures./ 15
5.16 Arranqement and description (see para. 143-149).
208. Legislation should ensure that all public records are kept under
sufficient administrative and intellectual control. One of the
functions of any archives service should be the arrangement and classification
of archives according to accepted archival principles
and methods and the publication of guides,inventories and
other finding aids.
5.17 Access (see para. 150-168).
209. The right of access to public records, subject to prescribed conditions
intended to protect their safe custody and physical condition,
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should be clearly stated in archival legislation. The most important
aspect of this matter for consideration is the term of years after
the creation of documents during which public records should normally
be kept closed and are not available for research. In most countries
consideration of this question has led to the general
opening of records when they are more than 25 or 30 years old. Whatever
closure period1 is adopted, it is necessary to provide
machinery for giving access to some documents after shorter
or longer periods by making general exceptions,and to allow access
to closed records by individual research workers in exceptional cases
(NG para. 140-142). /16
5.18 Reprography (see para. 169-176).
210. It is desirable that archival legislation provide that there
is no breach in copyright when any document, open to public
inspection and in the custody of the National Archives or other public
archives service,is copied or published (NG para. 147).
211. It may be considered necessary to include in archival legislation
a provision that the legal validity of records in government departments
or other organizations is not affected by their transfer to
the National Archives. Legislation should also provide that the National
Archives or other archival authority lawfully holding such records
may certify -any copies of documents (NG para.146).
5.19 Personnel (see para. 177-182).
212. It is essential that the law provides a basis for detailed regulations
on the recruitment, appointment, promotion, professional
qualifications, and training of archives staff.
5.20 Enforcement (see para. 187-186).
213. Apart from special penal provisions enforcing the right of inspection,
the inalienability of public archives, the protection and
control of the export of private archives and the professional
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secrecy of archivists are records managers, legislation should
include a general clause prohibiting the damage, mutilation,
destruction,and removal from custody of public archives.