File inspection (Switzerland)

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In the following, inspection of files means inspecting or copying archival documents in the narrower sense. In Switzerland , the Public Information Act ( Federal Act on the Public Principle of Administration , BGÖ) came into force on July 1, 2006, which promotes the transparency of the administration by giving everyone the right to inspect documents of the federal authorities ( public principle ). Individual cantons have also passed corresponding laws for their area of ​​responsibility. These regulations influence the rules for inspecting documents that have already been archived.

The question of access to archived documents raises the question of the purpose of archives in general. Public and generally freely accessible archives fulfill an essential concern of the democratic constitutional state in that they document state actions and thus make them verifiable.

Scope of the right of inspection

In Switzerland, the federal government and various cantons have passed archival laws since 1995 in which access to archived documents is a legal claim and is no longer considered a privilege granted by the state. In principle, access to archives is open to all persons, regardless of their motives for requesting access, what function they perform and what nationality they have.

Archives face contradicting claims, rights and interests:

  • The right of researchers to have the most comprehensive possible access to archived documents.
  • The interest of the state that overriding public interests - for example in the areas of national defense, foreign policy or public security - are preserved.
  • The protection of the persons concerned to preserve their personal rights.

The legal entitlement to access to archived documents reaches its limits where other interests are affected.

To protect public and private interests, all archive laws and ordinances have deadlines during which archived documents can only be viewed with conditions or not at all. The length of these protection or blocking periods is (incorrectly) often used as a criterion for how accessible an archive is. A general protection period of 30 years has become international consensus.

A protection or blocking period does not mean that it is generally not possible to inspect archived documents before these deadlines have expired: Special regulations make it possible to obtain permission to inspect documents from the responsible authorities for documents that are still subject to a deadline.

The question of which authority should have the authority to issue inspection permits is controversial. This can be with the submitting authority, with the responsible archive with his superior authority. It is essential that every rejection of a request for inspection is expressed in an appealable ruling. Since access to archived documents is a legal claim, the applicant has the opportunity to lodge a complaint against the rejection to an independent body.

Right of inspection in Switzerland at federal and cantonal level

Every archive law and every archive ordinance in Switzerland has some form of regulation according to which the archived documents are accessible to the public after a certain period of time.

In Switzerland, with its different legal cultures, it is inevitable that the cantons have different deadlines. The Canton of Geneva has the shortest regular protection or embargo period of 25 years. The federal government and the cantons of Aargau , Basel-Landschaft , Basel-Stadt , Freiburg , Glarus , Jura , Lucerne , Obwalden , St. Gallen , Ticino , Thurgau , Uri , Valais , Zug and Zurich have set this period at 30 years. There is an ordinary period of 35 years in the cantons of Appenzell Ausserrhoden , Graubünden , Nidwalden and Schwyz . The canton of Neuchâtel has a period of 45 years . The longest deadline in the cantons of Appenzell Innerrhoden and Schaffhausen is 50 years.

In addition to this regular protection or blocking period, the federal government and many cantons have further protection periods. A special deadline applies, for example, to documents that contain sensitive personal data. This protection period can be based on the age of the documents or the life data of the persons concerned.

In addition, some cantons have their own provisions, which can be explained with the various legal traditions:

  • Government Council and State Council minutes: 50 years in the cantons of Graubünden and Ticino;
  • Documents from court proceedings: 50 years at the Federal Supreme Court and in the canton of Graubünden, 85 years in the canton of Neuchâtel, 100 years in the cantons of Friborg, Jura and Ticino. In the canton of Schwyz, a general blocking period applies to court files from 1848;
  • Documents from closed court proceedings: 50 years in the canton of Neuchâtel;
  • Documents from the public prosecutor's office: 50 years in the canton of Graubünden;
  • Documents from the examining magistrates' offices: 65 years in the canton of Neuchâtel;
  • Police files: 50 years in the canton of Ticino, 100 years in the canton of Friborg;
  • State security documents: 50 years in the canton of Neuchâtel;
  • Personnel files: 50 years in the canton of Graubünden;
  • Tax files: 50 years in the cantons of Graubünden and Ticino, 100 years in the cantons of Friborg and Jura;
  • Health care files: 50 years in the canton of Ticino;
  • Welfare files: 50 years in the canton of Ticino;
  • Notarial deeds: 100 years in the canton of Friborg. In the Canton of Graubünden, notarial files and books are generally withdrawn from public inspection;
  • Documents not inventoried (Documents non inventoriés): 100 years in the canton of Jura.

At the federal level and in many cantons, there is the additional option of subjecting other file categories to an extended protection period. Here, too, practically every canton has its own regulation:

  • All cantons as well as the federal government have provided the possibility to view documents before the expiry of the protection or blocking period.
  • In the cantons of Aargau, Appenzell Ausserrhoden, Appenzell Innerrhoden, Neuchâtel and Uri, the cantonal government decides on requests for inspection;
  • in the cantons of Friborg, Geneva, Jura, Nidwalden and Valais, the department in charge of the State Archives or the responsible department decides;
  • In the federal government as well as in the cantons of Basel-Landschaft, Bern , Glarus, Graubünden, Obwalden , St. Gallen, Schaffhausen, Schwyz, Solothurn and Vaud , the delivering office decides.
  • Only in the cantons of Basel-Stadt, Lucerne, Zug and Zurich does the decision-making authority lie with the State Archives.

As with the extension of the deadline, the “predominant public or private interest worthy of protection” as well as its non-opposition is the decisive reason for whether or not to allow inspection. Both the federal government and the cantons of Aargau, Appenzell Innerrhoden, Basel-Landschaft, Bern, Glarus, Graubünden, Lucerne, Neuchâtel, Obwalden, St. Gallen, Schwyz, Solothurn, Waadt, Wallis, Zug and Zurich have this criterion in their archive laws or . -Regulations enshrined in one form or another.

However, the legal provisions say little or nothing about the actual inspection practice, i.e. how liberally or how restrictively access requests are treated. The inspection practice was last discussed in Switzerland in 2003, when the Federal Council extended the protection periods for documents relating to Switzerland's relations with South Africa. He justified his decision with class actions that had been filed in the USA against domestic and foreign companies that had business relationships with South Africa during apartheid . The blocking of the files made their work more difficult for the researchers, who examined Switzerland's relations with South Africa as part of the National Research Program (NRP) 42+ of the National Fund .

literature

  • Gilbert Coutaz. L'archiviste entre le droit à l'information et la protection des information réservées. In: Janus, No. 1/1998. Pp. 205-218.
  • Charles Kecskeméti, Ivan Székély. Access to archives. A Handbook of guidelines for implementation of Recommdendation No R (2000) 13 on a European policy on access to archives. Department of Culture and Cultural Heritage. Council of Europe Publishing. Strasbourg 2005.
  • Andreas Kellerhals-Maeder. Free access to archives as a fundamental right. Art. 9 BGA as a specification of freedom of expression and information. In: Traverse. Journal of history. No. 2003/2; Archive right - archive access. Pp. 57-67. ( Full text )
  • Sibylle Vorbrodt Stelzer. Freedom of information and access to information in the public sector. An investigation based on Swiss and European judicial practice. Zurich 1995
  • Josef Zwicker. Archive law in Switzerland - status and tasks. In: Swiss History Journal . Vol. 47, 1997. pp. 286-312 ( full text )
  • Josef Zwicker. Archive law 2006 - andante ma non troppo. In: Archivpraxis in der Schweiz, ed. Gilbert Coutaz ... [et al.], Baden, 2007, pp. 164–194; Excursus “Archive Act and Public Information Act”, pp. 184–188