DAVID – Archiving e-mail

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DAVID – Archiving e-mail

DAVID Archiving e-mail

4. Archiving: secondary processing complying with the original goal

Archiving e-mail is a new and secondary processing of personal data. A ‘secondary’ processing of

personal data can be any processing for a goal other than the one for which the data was originally

collected. Collecting e-mails of the staff of an organisation by the records manager for the purpose of

storing these e-mails can be qualified as a secondary processing. The Directive determines that a

secondary processing of personal data for historical purposes could comply with the original primary

goal (and is therefore allowed), as far as the Member States offer suitable guarantees (Article 6.1.b of the

Directive).

Article 6.1.b) of the Directive has caused quite some uproar in the Belgian archive world because of the

royal decree the Belgian legislator has attributed to it. The starting point of the “suitable guarantees” for

the processing of personal data for historical purposes is a gradual three-step system that can be found in

the royal decree of the Belgian Privacy Act of 8 December 1992 52 . As a principle the historical

processing should take place based on anonymous data. If the historical purposes of the processing

cannot be achieved by the processing of anonymous data, the controller is allowed to process coded

personal data. And if this method still does not allow achieving the historical purposes, only then can the

personal data be processed in its original form.

When this regulation was introduced the question arose within the archive world regarding the meaning

of the term ‘historical purposes’. Is the storage by an archivist of an organisation’s proper documents an

act of processing for historical purposes If the answer is yes, the three-step system applies and an

archivist needs to make all personal data anonymous before archiving it. Even though it is much easier to

make data anonymous in a digital context than would be the case for paper data, this method would be

unworkable for the archivist and furthermore it would be impossible to store e-mails in their original

form.

Neither the text nor the considerations of the Directive contain a definition of the term “historical”. In

general linguistics the term “historical” refers to the processing of personal data with the purpose of

analysis of a past event or the enabling of that analysis. Thus interpreted also an organisation’s archiving

of its proper cases would fall under the new arrangement. However we feel that “processing for historical

purposes” in the Directive is meant as “the secondary processing for historical purposes by another

person than the controller”. Put differently: only when another person than the one responsible for the

primary processing handles the personal data for a secondary, historical goal, for example a genealogist,

the “suitable guarantees” of the Member States apply. On the contrary, the processing of the proper e-

mails for archiving purposes is always in compliance with the original goal and can take place without

obstacle.

52

Modified by the Act of 11 December 1998 to transpose the Privacy Directive, Official Journal (Belgisch Staatsblad)

3 February 1999

27

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