Creating Archival Legislation in a Federal State: The Case of Flanders

Creating Archival Legislation in a Federal State The Case of Flanders

Overview
The Need for New Archival Legislation
The Political Path to a Decree on Archives
Key Success Factors during the Lawmaking Process
A Creative Process of Lawmaking
Fundamental Choices

The Need for New Archival Legislation
Outdated Federal Law (1955)
inaccurate reflection of Belgian political structure
mandatory transfer after 100 years
no lifecycle of records perspective
no sanctioned inspection mechanism
general sense of confusion, e.g.:
tension between privacy and public access
diversity of access tariffs

The Political Path to a Decree on Archives
Numerous failed attempts
Three major phases from Flemish perspective:
1970-1994: attempting to modernize the Federal Law on Archives
1994-2007: consulting with the Federal Government
2007-2010: taking initiative to create own legislation

1970-1994: attempting to modernize the Federal Law
Several bills to amend the Law
E.g. Hugo Marsoul (1992)
cancelled due to insufficient political consensus

1994-2007: consulting with the Federal Government
Change of tactics:
wg of Senators and MPs called for formalized cooperation between Federal and regional parliaments
 deemed necessary because Federal Government did no longer have sole authority to change this law
E.g. Hugo Marsoul (1993): draft Flemish decree:
focus on taking up Flemish powers
urge for formal cooperation with Federal Government
several attempts to start talks
but always postponed

2007-2010: taking initiative to create own legislation
MP’s urged Flemish Govt to create own decree
formal cooperation with Federal Govt no longer considered prerequisite
2007: Flemish Govt installs wg
resulting in the Decree of 9 juli 2010
But: Federal initiatives succeeded as well
 old Law was modernized

Key Success Factors during the Lawmaking Process
Federal Law:
government backing was crucial
in a Programme Law: minimal political discussion
Flemish Decree:
matured self-consciousness
government backing
vitality of the field
increased expertise in administration

A Creative Process of Lawmaking
Better regulation:
regulatory impact assessment (RIA)
Systematic approach:
context analysis: 8 problematic fields
roadmap: strategic options
preparation stage: collecting data and expertise
desktop research
original research: large-scale survey of 600 public bodies
expert panels
external methodological guidance
impact assessment: costs and effects of options
consultation of stakeholders
political decision

Fundamental Choices
No mandatory transfer
extremely common worldwide
seen as a guarantee for proper conservation
 each public body is responsible: archiefzorg (< subsidiarity ); archiefbeheer can be outsourced

Fundamental choices
No obligation to destruct records
appraisal and selection put under govt control
public bodies can choose to keep records longer
Form of new supporting organization
internal, govt-controlled
not: external, govt-sponsored
 archiefzorg is quintessential task for public bodies

Fundamental choices
No charges for access
but charging for services is possible
Publication of finding aids in a central db
Privileged access for researchers
to non-public archives
< 2006: open letter from the professional field
only ‘scientific’ purposes, no ‘commercial’ or genealogical

The Decree and beyond

Creating Archival Legislation in a Federal State: The Case of Flanders

by Vlaamse Vereniging voor Bibliotheek, Archief & Documentatie vzw on Sep 24, 2010

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