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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
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- Art. 20 FC
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- Art. 29a FC
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- Art. 32 FC
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- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
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- Art. 21 PRA
- Art. 22 PRA
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- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
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- Art. 48 PRA
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- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. In a nutshell
- II. General information
- III. Offering documents in the context of prospective appraisal (para. 1)
- IV. Personal data that are no longer permanently required (para. 1)
- V. Destruction of documents not worthy of archiving (para. 2)
- VI. Anonymization of personal data (para. 2 lit. a)
- VII. Retention for evidentiary or security purposes, safeguarding the interests of the data subject worthy of protection (para. 2 lit. b)
- VIII. Implementation with misunderstandings
- IX. Appraisal
- Bibliography
- Materials
I. In a nutshell
1 Art. 38 FADP has an important bridging function between the Federal Act on Data Protection (FADP) and the Federal Act on Archiving (ArchA).
2 Today, Art. 38 FADP can give rise to misunderstandings, as archiving practice has changed at federal level, particularly in connection with the introduction of prospective evaluation in 2010.
II. General information
A. History of origin
3 The fact that data protection, archiving and historical research, which relies on archived documents, have different interests has already been sufficiently discussed. In connection with the drafting of the first federal law on data protection at the end of the 1970s, fears arose in parts of the archiving world that data protection efforts could lead to an "increasing tendency towards destruction/deletion" and "restraint in the use and authorization practices of individual departments". These fears arose in particular because the first data protection law at federal level was drafted at a time when archiving at federal level was only regulated at the level of regulations and directives.
4 Initially, it appeared that the new Data Protection Act would address the issue of archiving personal data in detail, as the Working Group on Data Protection in the Federal Administration proposed drafting an Art. 20 entitled "Destruction and archiving of data" or "Archiving and destruction of data", which would contain detailed regulations on the archiving of (personal) data: A draft of the working group states: "Data carriers with permanently valuable data may be archived (Var.: preserved) in the Federal Archives beyond the time of the originally necessary processing; their further processing is only permitted within the framework of the regulations for the Federal Archives."
5 However, this proposal was not subsequently accepted. A special regulation regarding the archiving of data was dispensed with: The then Art. 18 para. 2 FADP as well as Art. 21 of the first FADP of 19 June 1992 deleted archiving from the title and stated under the title "Anonymization and destruction of personal data" that federal bodies must anonymize or destroy personal data that they no longer need, unless "the data serve evidentiary or security purposes" or "are to be handed over to the Federal Archives". This laid the foundation for the character of today's Art. 38 FADP.
6 In a nutshell, after the first FADP came into force at federal level in 1992, the Federal Council instructed the Federal Department of Home Affairs (FDHA) to draw up a preliminary draft for the creation of a federal law on archiving in a resolution dated August 18, 1993. The work was subsequently undertaken by an interdepartmental working group. The need for a legal basis for archiving in a formal federal law arose from the obvious upheavals in the archiving sector (including the massive increase in the volume of files produced by federal agencies after the Second World War and the increased production of electronic documents in the last quarter of the 20th century) as well as from the demand for the "realization of appropriate data protection", as stated in the dispatch on the Federal Act on Archiving of 26 February 1997.
7 At the same time, the dispatch on the BGA stated that the right to inspect archive records does not mean the right to unchecked disclosure or uncritical forwarding of personal data. Rather, the right to inspect archival material "compels a critical review of the content of archived documents and their interpretation and presentation in keeping with the protection of personality rights"; this responsibility lies with the users of the archive. It should be noted here that in the case of documents that are still within the protection period and were not already publicly accessible prior to their delivery (cf. Art. 9 para. 2 BGA), the delivering authority will check in advance, in accordance with Art. 13 para. 1 lit. b, whether there are no overriding private interests that prevent access before the protection period expires and whether, if necessary, access should be granted subject to conditions and requirements, such as anonymization of personal data (Art. 13 para. 3 BGA).
8 With the entry into force of the BGA in 1999, the issues of data protection in the area of archiving were now also addressed from an archive perspective. With the introduction of the protection period regulation and the possibility thus created to extend the protection period for the inspection of documents in certain cases (Art. 11 and 12 BGA), the BGA explicitly aimed at "harmonization". As archive records may not be altered (Art. 14 para. 4 BGA), the denial note pursuant to Art. 15 para. 3 BGA supplements the protection period regulation. Furthermore, according to Art. 14 para. 2 BGA, the inspection of personal data by the authority creating or delivering the file is restricted during the protection period, unless the exceptions according to Art. 14 para. 1 (lit. a-d) apply. According to the dispatch on the BGA, this ensures that "on the one hand, the interests of the persons concerned must be protected, but on the other hand, (historical) research in the public interest should not be hindered."
9 The new BGA therefore had an impact on the existing Data Protection Act. However, until 2006, Article 21 of the Data Protection Act only regulated the transfer of personal data to the Federal Archives as an exception for anonymization and destruction.
10 However, the current Article 38 FADP underwent a significant change in 2008 (version according to no. I of the Federal Act of March 24, 2006, in force since Jan. 1, 2008). Accordingly, the archiving of personal data was no longer an exceptional case of destruction or anonymization. Instead, reference was now made to the new Federal Act on Archiving, which has since come into force. This law now also introduces concepts from the archiving world into the Data Protection Act with the terms "offer" or "offering" and "archival value".
11 Since 2008, Article 21 of the aDSG, now Article 38 of the new FADP, which came into force on September 1, 2023, has remained essentially unchanged, but the enforcement of archiving legislation at federal level has developed significantly during this time, as the following explanations will show.
B. Scope of application
12 Art. 38 FADP is addressed to all federal bodies pursuant to Art. 2 para. 1 lit. b FADP. In Art. 1 para. 1, the FADP lists all bodies whose archiving is regulated by the FADP. The norm addressee is also the Federal Supreme Court, which in accordance with Art. 1 para. 3 regulates the archiving of its own documents, but does so in accordance with the principles of the ArchA and after consulting the Swiss Federal Archives (SFA).
13 Indirectly, Art. 38 FADP may also be relevant for record creators pursuant to Art. 17 para. 2 FGA, i.e. for persons under private or public law of national importance who voluntarily hand over their documents to the SFA for secure and appropriate storage and communication. As a rule, the corresponding donation and deposit agreements refer to the fact that the documents are subject to the same provisions for inspection as the documents of the federal state (Art. 9 ff. of the Federal Act on Archiving, ArchA). It can therefore be assumed that, unless otherwise agreed between the file creator and the SFA, documents from private archives that constitute or contain personal data and are worthy of archiving can also be submitted to the SFA in accordance with Art. 38 FADP and, in particular, by applying the protection period regulation pursuant to Art. 9 et seq.
14On the question of whether Art. 38 FADP can only apply to personal data that was obtained or processed lawfully, it should be pointed out with Epiney and others that the demand for the systematic destruction of documents that contain or represent personal data that was obtained and processed in a wholly or partially unlawful manner may, depending on the initial situation, be opposed by a public interest in the preservation of documents that were created by the administration in an unlawful manner. In addition, such a strict regulation would undermine the principles and objectives of the BGA as well as any requests for access by those affected, e.g. with regard to claims for compensation. The state security files, for example, which were handed over to the SFA, are valuable federal documents from a legal, political and historical perspective that document the business practices of the federal authorities, as postulated in Art. 2 para. 1 ArchA.
C. Terms
15Where archive legislation and data protection legislation come into contact with each other - as in Art. 38 FADP - different perspectives and concepts collide. Archives legislation is based on the concept of "records". According to Art. 3 para. 1 FADP, documents are "all recorded information, regardless of the information carrier, which has been received or created in the performance of public tasks of the Confederation, as well as all aids and supplementary data necessary for the understanding of this information and its use." Data protection legislation, on the other hand, refers to personal data, which is defined in Art. 3 lit. a FADP as "any information relating to an identified or identifiable person". The question therefore arises as to the relationship between these two terms. For the following explanations, it is postulated that personal data is both a sub-category and a possible characteristic of recorded information (documents). In other words, personal data are always documents within the meaning of the BGA. Conversely, documents can contain personal data, but do not have to.
16 Article 38 FADP builds another bridge to the BGA with the use of the terms "offer" and "offer". However, the terms "offer" and "offering" are used differently in the FADP and the corresponding implementing legislation, and their meaning has changed to some extent over the last fifteen years.
17 On the one hand, the SFA refers to the "authorities obliged to offer" and thus, in conjunction with Art. 1 para. 1 SFA, outlines the relationship between the SFA and the federal authorities that are subject to the SFA's duty to issue instructions and are obliged to offer to the SFA. On the other hand, the terms "offer" and "offer" also describe work steps in the life cycle of documents. These steps are related to the appraisal of documents and are the subject of a significant change in practice, the shift from retrospective to prospective appraisal, which is described in the overall concept for appraisal in the Federal Archives in 2010. This change in practice is discussed in the following chapters.
III. Offering documents in the context of prospective appraisal (para. 1)
18 The overall concept for appraisal in the Federal Archives, which was published in 2010, postulates in principle the abandonment of retrospective appraisal in favor of prospective appraisal.
19 While retrospective appraisal involves assessing the archival value of documents that have already been created, prospective appraisal involves appraising documents before they are created. This evaluation takes place during the development or revision of classification systems in accordance with Articles 7 and 8 of the GEVER Ordinance. Regulatory systems are drawn up by federal agencies and, in the case of agencies subject to the obligation to offer, are reviewed and approved by the SFA, provided they meet the requirements of the GAOA or the implementing provisions of the GAOA. In a classification system, series of documents are evaluated at the category level, i.e. it is determined whether the documents that will arise in the course of a federal agency's duties are fully, partially (selection or sampling) or not at all worthy of archiving. Only business-relevant documents are evaluated; non-business-relevant documents are not considered documents within the meaning of the BGA and are not subject to the obligation to offer.
20The switch to prospective valuation has not been without consequences for the meaning of the term "offer" or "offer". In the case of retrospective appraisal in application of Art. 6 para. 1 ArchA, existing document series were offered to the SFA by the non-independently archiving agencies with a proposal for legal-administrative appraisal (offer for takeover) and the SFA also carried out a retrospective appraisal from a historical-social science perspective.
21 With the introduction of prospective appraisal, "offers" are made to the SFA at two different points in the life cycle of documents. The appraisal of documents takes place as part of the development or updating of a classification system and is to be understood as an offer for appraisal. The subsequently created archive-worthy documents are submitted to the SFA for submission at a later date (i.e. transmission of Submission Information Packages SIP containing files including metadata and indexing data for the submission of electronic documents or archive boxes containing paper dossiers for paper submissions). Since the introduction of prospective appraisal, the appraisal of documents in cooperation between file creators and the SFA and the transmission or submission of documents to the SFA no longer coincide.
22As indicated above, both in the retrospective appraisal, which was the majority practice before 2010, and in the prospective appraisal after 2010, the federal agency concerned is involved in the appraisal alongside the SFA. The federal agency creating the file evaluates the documents per category from a legal-administrative perspective. This evaluation is the responsibility of the management/directorate of the federal offices concerned and ensures that the technical, legal and political aspects are taken into account. In a second step, the SFA reviews the legal-administrative evaluation of the authority creating the file and also carries out an evaluation according to historical-social science criteria. If one of the two evaluations is positive, the documents are deemed to be archivable (in full or in part in the form of sampling or selection). In exceptional cases, the prospective evaluation may be subject to a subsequent review.
IV. Personal data that are no longer permanently required (para. 1)
23 The literature often deals with the question of when personal data are no longer permanently required without reference to the document context. This approach can hardly be implemented in practice. This is because personal data are always documents within the meaning of the BGA, unless they are not relevant to business. Art. 6 of the FADP stipulates that documents must be submitted to the SFA when they are no longer permanently required.
24 If one were to assume that the question of when personal data is no longer permanently required would have to be answered differently from the question of when documents are no longer permanently required, then the conclusion would follow that documents worthy of archiving that contain or represent personal data may have to be submitted to the SFA at a different point in time than documents that do not contain or represent personal data. However, the SFA assumes that the business dossier is the relevant unit for archiving. In this respect, business files are often of a mixed nature: they consist of documents that contain personal data as well as documents that do not contain or represent personal data. It therefore makes sense for the federal authorities to consider the question of when personal data is no longer permanently required in the context of documents and to observe the implementing provisions of the FADP in this regard.
25 Pursuant to Art. 4 para. 1 OBGA, documents are deemed to be no longer permanently required if the body subject to the obligation to provide them no longer makes frequent, regular use of them, but no later than five years after the last addition to the file. Art. 3 para. 1 of the directives on the obligation to offer and the delivery of documents to the Swiss Federal Archives of September 28, 1999 also stipulates that the offices subject to the obligation to offer must regularly, but at least every five years, review their files and information repositories with regard to documents that they no longer need frequently and regularly. Art. 4 para. 2 VBGA and Art. 3 para. 2 of the directives regulate the extension of this period. Art. 4 para. 3 OBGA and Art. 3 para. 3 of the Directives also regulate cases of shortened deadlines. For certain categories of documents, more specific requirements apply in accordance with Art. 4 para. 3 OBGA and Art. 4 of the Directives.
26 Since the introduction of prospective evaluation in 2010, these time limits are to be understood as deadlines for the submission to the SFA of documents that have already been evaluated and are therefore worthy of archiving.
V. Destruction of documents not worthy of archiving (para. 2)
27 Reference is made to Art. 5 lit. d and Art. 6 para. 4 FADP regarding the processing procedure for destruction.
28 The wording "personal data designated by the Federal Archives as not worthy of archiving" used in paragraph 2 of Art. 21 is misleading because, as explained above, the appraisal of documents (and thus also of personal data) is not carried out by the SFA alone, but by the authority creating the file together with the SFA. Since the introduction of prospective appraisal in 2010, the moment documents are stored in the electronic records management system (GEVER), it is clear from the link between the corresponding business dossier (or a specialized application) and a category in the appraised classification system whether the documents containing or representing personal data are worthy of archiving (in part or in full) or not.
29 In this context, it should be noted that the destruction of documents must be recorded and that the resulting cassation records must be submitted to the SFA.
VI. Anonymization of personal data (para. 2 lit. a)
30 With regard to the term anonymization, reference is made to the commentary on Art. 2 para. 1 lit. a FADP and Art. 6 para. 4 FADP. Para. 2 lit. a FADP allows federal authorities to retain documents that are not worthy of archiving or documents that are only assessed as partially worthy of archiving (sampling or selection) that are no longer permanently required, or to retain them in their entirety, provided that they are anonymized. However, since the changeover to electronic business management, such storage can only be temporary storage and not archiving within the meaning of the ArchA, as the federal authorities only have the infrastructure required for long-term electronic archiving available to them within the scope of submission to the SFA.
VII. Retention for evidentiary or security purposes, safeguarding the interests of the data subject worthy of protection (para. 2 lit. b)
31 As part of the administrative-legal assessment, the record-creating body shall check whether documents are to be stored permanently. The involvement of the file creators is intended to ensure that the "technical, legal and political aspects are carefully taken into account in the evaluation". From a legal-administrative perspective, documents are worthy of archiving in particular if they serve as evidence of business practice, have legal relevance or serve to ensure legal certainty.
32If documents that contain personal data or constitute personal data must be retained for evidentiary or security purposes or to protect the legitimate interests of the persons concerned, they have generally already been assessed as archival value in the legal-administrative assessment. Accordingly, as in the cases of Art. 38 para. 2 lit. b FADP, only personal data that is contained in documents or constitutes documents that were assessed as not worthy of archiving in the prospective evaluation or, in the case of partial archival value, are not part of the sample to be archived or part of the selection to be archived, are to be expected as cases of application of Art. 38 para. 2 lit. b FADP. For example, accounting documents that are not worthy of archiving and are used as evidence in ongoing or impending proceedings are conceivable.
VIII. Implementation with misunderstandings
33 In practice, however, Art. 38 FADP is not yet consistently understood in this sense, as can be seen in the literature and case law. In decision A-4236/2021 of the FAC of March 21, 2023, which refers to Art. 21 aDSG, for example, the FTA, which has an approved filing system, takes the position in connection with a request for data destruction that the FTA "can decide for itself" when the lawfully processed data should be offered to the Federal Archives. A party cannot request that the lawfully processed personal data be offered to the Federal Archives or destroyed. Therefore, it is not required to offer legally processed personal data from a dossier whose last addition to the file took place in 2020 to the Federal Archives at the request of the complainant or to destroy it." The FTA thus refers to the deadlines set out in the FNA and the implementing legislation to the FNA, but at the same time fails to point out that the documents in question have already been assessed by the FTA and the SFA.
34 In its decision of March 21, 2023, the Federal Administrative Court also follows the evaluation practice prior to 2010 and writes: "It is not up to the Federal Administrative Court to clarify the question of the archival value of the data collected by the lower instance in the administrative assistance proceedings as the first instance in the appeal proceedings, especially since the responsibility for this decision does not lie with the lower instance, but with the Federal Archives, which has not yet been able to comment on this. [...] The lower instance must offer the data collected as part of the administrative assistance proceedings to the Federal Archives and, if the latter classifies the data as worthy of archiving, hand it over. If the data is not classified as worthy of archiving, the lower instance must destroy the data."
35 This recent decision of the Federal Administrative Court is an example of the misunderstandings that the current version of Art. 38 para. 1 FADP can lead to: Article 38 para. 1 FADP seems to suggest - at least according to the reading of the FTA and the FAC - that bodies subject to the obligation to provide personal data, in this case in the form of a business dossier on a tax case relating to a specific person, may only destroy such data if the SFA has made a specific statement on this individual dossier and its assessment. This is not compatible with the SFA's archiving practice for the following reasons:
a) In the present case, the FTA, which is obliged to offer, and the SFA already carried out a prospective evaluation when the FTA regulatory system was drawn up in 2015. Whether the documents resulting from this specific activity of the FTA (exchange of information in tax matters) are worthy of archiving or not can be seen from the FTA classification system or the linking of the business file in question to a section of the classification system. The SFA and the FTA have therefore already stated whether the series of documents to which the dossier or document in question belongs is worthy of archiving (in part or in full) or not.
b) The evaluation, both prospective and retrospective, relates to series of documents that arise in the performance of specific tasks and, where applicable, to specialized applications - but not to individual data records, individual personal data, individual documents or business dossiers. In other words: How these series of documents are created and, in particular, the form in which the documents are filed in dossiers is a matter for the Federal Office of Justice to decide in accordance with Art. 2 para. 2 and Art. 5 para. 2 and 3 BGA in conjunction with Art. 3 VBGA. Art. 3 VBGA as well as Art. 6 GEVER Ordinance and Art. 22 RVOV fall within the area of responsibility of the bodies obliged to offer or create files. These are required to ensure the traceability and verifiability of their business activities in their records.
36 If, in the above-mentioned case, the corresponding series of documents had been assessed in the FTA classification system as worthy of archiving or as partially worthy of archiving (selection or sampling), the file-creating office would only have to decide, in application of the SFA and the implementing provisions to the SFA, when the dossier in question should be submitted to the SFA. Furthermore, in this case the file-creating office would decide whether the document in question was required for the traceability and verifiability of the business activities in this dossier. In the case of partial archival value, the authority creating the file would also implement the selection or sampling criteria set out in the OS. In this constellation, the SFA would also no longer have any decision-making authority after the prospective evaluation has been carried out.
37 If the corresponding series of documents had been assessed as not worthy of archiving, the authority creating the file would also decide what to do with the document or business file in question containing personal data. In other words, whether it should be stored temporarily in anonymized form in accordance with Art. 38 para. 2 lit. a FADP or in non-anonymized form in accordance with Art. 38 para. 2 lit. b FADP for evidence and security purposes or to protect the interests of the data subject worthy of protection. In this constellation, too, the SFA would no longer have the authority to make a decision after the prospective evaluation has been carried out.
38 Against this background, Art. 8 para. 1 ArchA is to be understood as meaning that only documents that have not been offered to the SFA for (prospective) evaluation may not be destroyed without the SFA's consent. In view of the comprehensive obligation to offer documents to the SFA, such documents are likely to be rare.
IX. Appraisal
39 Art. 38 FADP has its origins in the 1980s and was conceived as an instrument to prevent file creators from using the pretext of data protection to prevent the SFA from archiving documents that contain personal data or constitute personal data solely on the basis of this fact. Art. 38 FADP is still of practical relevance today, as the provision specifies the principle of proportionate data processing with regard to archiving: Not only the anonymization or destruction of documents that are not worthy of archiving and that contain or represent personal data is therefore proportionate once the necessary processing by the authorities creating the file has been completed, but also the (non-anonymized) submission of such documents to the SFA, provided they are worthy of archiving.
40 In its current version, Art. 38 para. 1 FADP is based on the practice of retrospective evaluation, which was standard practice at the SFA until the 2000s. Since the switch to prospective evaluation as the standard process, all federal agencies evaluate their documents in accordance with Art. 1 para. 1 FADP from a legal-administrative perspective and the SFA from a socio-scientific-historical perspective as part of the development of classification systems, i.e. before the documents are created.
41 Under the heading "Archiving of personal data", a revised Article 38 could in future limit itself to stating that documents pursuant to the ArchA may contain or constitute personal data and must be handled in accordance with the requirements of the ArchA (paragraph 1). A new para. 2 could stipulate that documents not worthy of archiving that contain or constitute personal data must be destroyed unless the conditions mentioned in the existing para. 2 lit. a and b apply.
The author would like to thank MAS ISc Barbara Kräuchi for the stimulating exchange of expertise in the course of the research for this article.
Bibliography
Öffentlichkeitsgesetz, Basler Kommentar, 3. Aufl., Basel 2014 (zit. BSK-Bühler).
Epiney Astrid, Commentaire de l’art. 38 LPD, in: Meier Philippe/Métille Sylvain (Hrsg.), Commentaire romand, Loi fédérale sur la protection des données, Bâle 2023 (zit. CR-Epiney).
Graf Christoph, Datenschutz als Herausforderung für Historiker und Archivare, in: Schweizerisches Bundesarchiv (Hrsg.), Studien und Quellen 8, Bern 1982, S. 75–115 (zit. Graf).
Materials
BAR, E3120B#1995/16#374*: Allgemeines [PUK I (EJPD)]. 1990–1991.
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BAR, E3120B#1996/434#391*: Resolution zum Problem der Datenschutzgesetzgebung der Vereinigung Schweizerischer Archivare VSA vom 29.4.1983. 1983–1985.
BAR, E4110B#1992/42#319*: Arbeitsgruppe Datenschutz in der Bundesverwaltung. 1979.
Botschaft über das Bundesgesetz über die Archivierung vom 26.2.1997, BBl 1997 II, S. 941–976, abrufbar unter https://fedlex.data.admin.ch/eli/fga/1997/2_941_829_753, besucht am 5.2.2024 (zit. Botschaft BGA 1997).
Botschaft zum Bundesgesetz über den Datenschutz (DSG) vom 23.3.1988, BBl 1988 II 413, S. 413–534, abrufbar unter https://fedlex.data.admin.ch/eli/fga/1988/2_413_421_353, besucht am 5.2.2024 (zit. Botschaft DSG 1988).
Schweizerisches Bundesarchiv, Bewertungsentscheid (Auszug), Prospektive Bewertung ESTV (Ordnungssystem 2015), 2015, abrufbar unter https://www.bar.admin.ch/dam/bar/de/dokumente/bewertungsentscheide/ESTV%20Bewertungsentscheid%20OS%202015.pdf.download.pdf, besucht am 5.2.2024 (zit. Schweizerisches Bundesarchiv, Bewertungsentscheid).
Schweizerisches Bundesarchiv, Gesamtkonzept für die Bewertung im Bundesarchiv, Bern 2010, abrufbar unter https://www.bar.admin.ch/dam/bar/de/dokumente/konzepte_und_weisungen/gesamtkonzept_2010.pdf.download.pdf, besucht am 5.2.2024 (zit. Schweizerisches Bundesarchiv, Bewertung).
Schweizerisches Bundesarchiv, Merkblatt Löschprotokoll, abrufbar unter https://www.bar.admin.ch/dam/bar/de/dokumente/kundeninformation/Merkblatt%20L%C3%B6schprotokoll.pdf.download.pdf, besucht am 5.2.2024 (zit. Schweizerisches Bundesarchiv, Löschprotokoll).
Schweizerisches Bundesarchiv, Schenkungsvertrag, abrufbar unter https://www.bar.admin.ch/dam/bar/de/dokumente/kundeninformation/schenkungsvertrag.pdf.download.pdf, zuletzt konsultiert am 05.2.2024 (zit. Schweizerisches Bundesarchiv, Schenkungsvertrag).
Schweizerisches Bundesarchiv, Staatsschutzfichen und -dossiers: Einsichtsverfahren und praktische Hinweise, in: bar.admin.ch, https://www.bar.admin.ch/bar/de/home/recherche/recherchetipps/themen/nachrichtendienste--spione--landesverraeter-und-staatsschutz-in-/staatsschutzfichen-und--dossiers--einsichtsverfahren-und-praktis.html, besucht am 5.2.2024 (zit. Schweizerisches Bundesarchiv, Staatsschutzfichen).
Schweizerisches Bundesarchiv, Von der Geschäftsablage ins Bundesarchiv, Angebot und Bewertung von Unterlagen des Bundes, Arbeitshilfe, Bern 2023, abrufbar unter https://www.bar.admin.ch/dam/bar/de/dokumente/publikationen/von_der_geschaeftsablageinsbundesarchivangebotundbewertungvonunt.pdf.download.pdf, besucht am 5.2.2024 (zit. Schweizerisches Bundesarchiv, Arbeitshilfe).
Weisungen über die Aktenführung in der Bundesverwaltung vom 13.7.1999, BBl 1999, S. 5428–5438, abrufbar unter https://www.fedlex.admin.ch/eli/fga/1999/1_5428_4988_4679/de, besucht am 5.2.2024 (zit. Weisungen Aktenführung).
Weisungen über die Anbietepflicht und die Ablieferung von Unterlagen an das Schweizerische Bundesarchiv vom 28.9.1999, https://www.bar.admin.ch/dam/bar/de/dokumente/gesetzgebung/weisungen_ueber_dieanbietepflichtunddieablieferungvonunterlagena.pdf.download.pdf, besucht am 5.2.2024 (zit. Weisungen Anbietepflicht).