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New Federal Archives Act (Bundesarchivgesetz) enters into force

By Dr. Michael Stulz-Herrnstadt and Fabian Jeschke

On 16 March 2017 the new Federal Archives Act (BArchG) entered into force. The German Federal Parliament (Deutscher Bundestag) had adopted the reform in one of its sessions in January 2017.

Besides the Freedom of Information Act (Informationsfreiheitsgesetz) the BArchG is a central instrument for access to documents of federal authorities. It had not been substantially updated since its introduction in 1988 and is now being replaced by a constitutive amendment. Alongside comprehensive restructuring, tightening and verbal revision the new BArchG also includes some significant material changes.

As before, the new law contains everyone’s right to use documents which are older than 30 years. One fundamental change is the shortening of the term of protection for documents referring to private individuals from 30 years to 10 years after the death of the affected person. This reduction in the federal law now complies with respective regulation in the individual German States’ archives laws. Another substantial change is that this personal term of protection does not apply to individuals of public interest and office-holders in pursuance of their duties anymore as long as their private sphere is not affected. Furthermore, the term of protection regarding documents which have been subject to the obligation of secrecy pursuant to German law may now be shortened to 30 years. Until the reform this period expired after 60 years. With these changes the legislation seeks to improve the accessibility of the Federal Archives for users as well as science.

During the legislative procedure the newly stated special status of intelligence services caused some need for discussion. Generally all federal authorities shall offer their files to the Federal Archives for archiving after 30 years at the latest. According to the amendment this principle does not apply to intelligence services. Their documents only have to be offered if not prevented by “compelling reasons based on identity protection or protection of sources and practices”.

However: Even after the reform there is still an entitlement to use all documents of potential archival quality which are older than 30 years, regardless of whether they are already subject to the power of disposal of the Federal Archives or are still located at the authorities obliged to offer them. This regulation seeks to establish a general publicity of documents which are older than 30 years. Access to these files can only be denied for the same reasons which the Federal Archives would have to take into account.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/03/new-federal-archives-act-bundesarchivgesetz-enters-into-force/