Amendment to the Archives Act does not make government archives immune to privacy legislation
After years of wrangling, the Archives Act is expected to be amended shortly, after which the CABR war archives would be permitted to be published online. That would save students and researchers at the University of Amsterdam a return trip to The Hague. Sounds good, but privacy legislation remains an obstacle.
The House of Representatives will vote tomorrow on an amendment to the Archives Act, which would enable government archives to publish archival material containing sensitive and personal data online. The amendment introduces the option of prioritising the public interest over the protection of privacy. In theory, this offers opportunities for researchers, but the reality is likely to prove more challenging, says Charles Jeurgens, professor of archival science at the University of Amsterdam.
A goldmine for academic research
The proposed legislative amendment was prompted by the disclosure of the Central Archive for Special Judicial Proceedings (CABR), comprising 485,000 files relating to Dutch citizens investigated for collaboration after the Second World War. The National Archives, which holds the CABR, wanted to make the digitised archive accessible online by 2025. A website had been set up where visitors could easily browse through the war files: a potential goldmine for academic research, according to the National Archives.
In December 2024, the National Archives were suddenly informed that they would have to postpone their plans due to concerns raised by the Dutch Data Protection Authority. The files are, in fact, full of criminal personal data, which, under the Archives Act, could not simply be published. ‘The current Archives Act states that the processing of personal data is permitted, for example to transfer archives to a repository or to digitise them, but not to make them available for consultation,’ explains Jeurgens.
With the legislative amendment – which, incidentally, was already conceived under the Schoof government – the government hopes to be able to realise the ‘Archief’ project almost two years later. Where an archive deals with war, genocide and crimes against humanity, as is the case with the CABR, the Minister for Education, Culture and Science will soon be able to grant permission for the material to be made available digitally. During the parliamentary debate on the amendment, Minister Letschert could scarcely conceal her enthusiasm for it. She described the CABR’s digital environment as ‘truly wonderful (…) from an academic and educational perspective’.
Professional scepticism
Jeurgens agrees that the amendment ‘does indeed remove a barrier for researchers’, but is somewhat sceptical about the scope of the new possibilities. Government archives may, after all, still be subject to other privacy legislation.
‘The GDPR Implementation Act remains unchanged, and it still imposes conditions on the processing of personal data’. When publishing the CABR, the National Archives will therefore still have to take into account the protection obligations imposed by the GDPR. ‘Files relating to people who were investigated and are still alive, for example, will therefore never be made available online.’
Another sensitive issue regarding the publication of the CABR also remains in place due to the GDPR: ‘The biggest problem for the Dutch Data Protection Authority is the people who appear in the files but were not tried themselves – and therefore do not have their own file,’ explains Jeurgens. ‘This includes a great many people, a large proportion of whom we know are still alive – for example, children of people investigated for collaboration, but also victims and witnesses.’ Currently, the idea of setting up a reporting scheme for people who come across their own names is being considered to address this problem.
No ready-made answers
The amendment to the Archives Act does not, therefore, mean that the National Archives’ plans will go smoothly. Moreover, even if the files are eventually made available online, they will remain a complex matter for researchers, warns Jeurgens. ‘I think it’s absolutely brilliant for researchers to be able to search through those files digitally in future. But it is, and remains, an extraordinarily complicated archive, part of the chaotic reality of the immediate post-war period. Ultimately, a great many people are interested in questions such as ‘Was Grandad in the wrong or not?’, or who denounced their grandfather. These are difficult questions, and it is not simply an archive from which you can easily draw conclusions.’
The House of Representatives will vote on the proposed amendments on 22 September.
