Author: Nino Merebashvili-Fisher, Senior Lawyer at the Institute for Development of Freedom of Information (IDFI)

July, 2020

Introduction

Free access to historical information kept at the archival funds is crucial for every society and particularly for those who have overcome the bitter experience of totalitarian regimes. The same is true for Georgia. In the aftermath of the collapse of the Soviet Union, Georgia regained its independence and started to move towards establishing democratic governance, the cornerstone of which is respect for basic human rights and freedoms, including freedom of expression and the right to access information. In its milestone decision on the case of Kenedi v. Hungary, the European Court of Human Rights declared that ensuring access to original documentary sources for legitimate historical research was crucial for the effective exercise of the freedom of expression.

Those who study the past of the South Soviet Union, its diplomatic relations, politics in the region of Caucasus and other similar directions will find documents of high scientific and research value at LEPL National Archives of Georgia (National Archive). However, legislation and practice of accessing archival documents in Georgia are highly restrictive. Georgia still stands considerably behind in regards to access to historical archives, especially when compared to other Eastern European states.

Institute for Development of Freedom of Information (IDFI) is a non-governmental organization with over 10 years of experience in the field of good governance, inter-alia freedom of expression. The openness of state archives has been the cornerstone of IDFI’s work since its establishment in 2009.

The given article aims at discussing existing practical and legislative problems regarding access to archival documents in Georgia. It will get readers acquainted with the solutions to tackling the problems and will inform them about the activities of IDFI aimed at achieving positive changes.

Challenges

In Georgia, most of the historical archives going beyond the files of the Soviet Union’s past are kept at the National Archive. Special emphasis should be made on the documents of XIX-XX centuries, during the period of which Tbilisi was a military and administrative center of South Caucasus. However, scholars and researchers face a number of difficulties to access historical documents.

-          Highly restrictive regulations to access historical documents containing personal data

Based on existing legislation access to archival documents containing personal data is refused, unless the period of 75 years has passed since their creation or if the subject of the personal data has descended more than 30 years ago. In the latter case, a death certificate has to be submitted by an applicant to the National Archives of Georgia. This leads to unreasonable difficulties, especially in cases when an applicant has to get acquainted with hundreds of documents containing personal data. Applicants have in practice faced this problem, when they were directed by the National Archives of Georgia to submit death certificates of hundreds of persons in order to be granted access to historical documents. As a result, a vast selection of documents describing pivotal historical events/periods taking place after 1944 are not accessible in Georgia.[1]

- Highly restrictive regulations to access historical documents containing state secrecy

Based on the law of Georgia on State Secrets depending on the level of secrecy documents can be declassified in 3, 5, 10 or 20 years after their creation. However, the law envisages that under well-substantiated research or scientific need an applicant can be granted access to view documents of state secrecy before their declassification. According to the Law of Georgia on National Archives and National Archival Funds access to archival documents containing state secrecy can only be granted after the documents are declassified. The law does not envisage any exceptions from the rule. Thus National Archive refuses to grant access to such documents even in cases when an applicant has well-substantiated research or scientific need to view the documents.

- Ban on photocopying archival documents

According to existing regulations, those applicants who have been granted access to historical documents are forbidden to make their photocopies, including taking pictures of the documents which are digitalized and are viewed by the visitors on the monitor screens. This creates unnecessary bureaucracy when an applicant who is viewing a document has to submit a request on receiving a photocopy, pay a fee and wait before receiving copies of the documents. At the same time fees received from the service are insignificant compared to the overall budget of the National Archive.[2] Eliminating fees on photocopying documents would not have any notable negative effect on income generation of the public institution, it will decrease the level of bureaucracy and spare time and resources of the public officials working at the National Archive.

- Unreasonably long time frames for granting access to archival documents

Existing regulations set unreasonably long timeframes for granting applicants access to archival documents.   According to existing legislation, the National Archive is given a period of 5 working days to decide whether to grant or deny access to a requested document, after which the entity has additional 4 working days to prepare the document and grant access to it. Thus applicants have to wait for almost two weeks before they are granted the right to view the documents of their interest.

Solutions

In order to tackle the problems described above IDFI conducts activities in a number of directions. IDFI runs an interactive ranking of archival openness from post-Soviet countries on the website Open-Archives.org.  by comparing archival legislation of Georgia to the ones in, IDFI offers solutions to tackling them based on the international experience.

IDFI conducts strategic litigation against the National Archive. Recently, the court granted the appeal of IDFI, stressed the importance of accessing historical documents and directed the National Archive to disclose public information requested by IDFI.

Conducting strategic litigation is manifestly important for ensuring access to archival documents, however, this does not necessarily address existing systematic and legislative loopholes. Thus IDFI calls on for positive changes through submitting legislative proposals and advocating for adding relevant commitment to the Open Government Partnership (OGP) action plans.

Conclusion

The work of IDFI has already made significant positive changes of accessing archival documents in Georgia. As a result of IDFI’s advocacy, the commitment of digitalization of archival funds and creation of e-Archive system was included in the Open Government Action Plan of Georgia 2014-2016. The system of e-Archive was launched in 2016. However, access to archival funds in Georgia is still highly limited, violating the right to access information and limiting freedom of expression. IDFI will continue to work towards establishing a just, open and transparent system of accessing historical national archives, thus making tangible positive changes in the process of developing open governance in Georgia.