Federal Archives Act | Bedeutung & Erklärung

Definition of terms and general information

Das Federal Archives Act (BArchG) is the central legal framework for the archiving, use, and protection of federal documents in Germany. It regulates the duties of the Federal Archives as well as the procedures for archiving and making official documents produced by federal public bodies accessible. Furthermore, the Act defines the legal framework for safeguarding, maintaining, accessing, and using archival materials belonging to the German federal government.

The Federal Archives Act first came into force in 1988 and has since been revised multiple times to address requirements regarding data protection, digitization, and freedom of information. The currently authoritative version is the Federal Archives Act of 6 January 1988 (Federal Law Gazette I p. 62), last amended by Article 15 of the Act of 10 August 2021 (Federal Law Gazette I p. 3436).

Scope and level of application

Spatial and substantive scope of application

The Federal Archives Act applies to documents that are created or have been created at federal public bodies. This includes, in particular, federal authorities, courts and other institutions as well as organs of legislation and the federal judiciary. Archives of the federal states or municipalities are generally not covered, as they are subject to their own archival laws.

In addition, the substantive scope also extends to federally owned companies organized under private law, provided they perform public tasks directly.

Legal hierarchy and relationship to other laws

The Federal Archives Act stands at the federal level in the hierarchy of norms and is therefore a lex specialis in relation to general data protection regulations such as the Federal Data Protection Act (BDSG). It also applies to provisions of the Freedom of Information Act (IFG), with respective regulations being interconnected.

Objectives and tasks of the Federal Archives Act

The main objectives of the Federal Archives Act are:

Preservation of archival material as part of the national cultural heritage
Promotion and assurance of public and academic use of archival material
Regulation of the transfer and evaluation of documents from public bodies
Data protection and protection of personal rights
Preservation, safeguarding, and restoration of archival material

The Federal Archives plays a central role, as it is responsible as a federal authority for the retention and availability of archival material.

Archiving procedures under the Federal Archives Act

Transfer (“obligation to offer”)

Federal public bodies are obliged under § 5 BArchG to offer the Federal Archives any documents they no longer need before they may be destroyed. This duty to offer also applies to digital documents.

Appraisal and selection

Pursuant to § 6 BArchG, the Federal Archives decides which documents are permanently worthy of archiving. The appraisal is based on criteria of legal, historical, and academic significance. Documents not considered worthy of archiving may be destroyed after release.

Transfer, preservation, and safeguarding

Once the Federal Archives has recognized documents as worthy of archiving, it takes them over and ensures their permanent preservation and safeguarding. This includes measures of conservation, restoration, and digitization.

Use and accessibility of archival materials

Principles of use

Archival materials of the Federal Archives are in principle available to the public for use after the expiration of embargo periods (§ 10 BArchG). Use extends to academic, local-historical, genealogical, and other non-commercial purposes. Separate regulations may apply for commercial use.

Protection periods

The law provides for regular protection periods during which archival materials are preserved but not released for public use. The general protection period is 30 years. For personal documents, the protection period is extended to 10 years after death or 100 years after the birth of the data subject (§ 11 BArchG). Under certain conditions, protection periods may be shortened or extended on a case-by-case basis.

Restrictions due to data protection and personal rights

Access to archival materials may be restricted if the protection of personal data, trade and business secrets, or other legitimate interests requires it.

Freedom of information

The Federal Archives Act is related to the Freedom of Information Act (IFG). Inspection of files or use of archival material can also be carried out according to the IFG, but the provisions of the BArchG take precedence where they lay down special protective interests.

Data protection and confidentiality

The Federal Archives Act contains comprehensive provisions for the protection of sensitive data, especially personal information, state secrets, and other confidential documents. In case of conflicts of interest, e.g. between academic freedom and data protection, a case-by-case assessment is conducted. The Act stipulates procedural rules under which archival materials may only be used under certain conditions or personal data must be redacted.

Digital archiving

With advancing digitization of administrative processes, the Federal Archives Act has introduced special provisions for digital archiving. §§ 2 and 10a BArchG explicitly provide for the safeguarding and provision of digital documents as well as their long-term readability by means of suitable measures such as migration, conversion, and emulation.

Legal protection and remedies

Legal remedies against rejections of access requests or against decisions by the Federal Archives are governed by the general administrative law provisions, particularly the Administrative Procedure Act (VwVfG) and the Administrative Court Procedure Code (VwGO).

International references and cooperation

The Federal Archives Act provides for cooperation with archives of other states and with international organizations. This applies in particular to the transfer, preservation, and use of archival materials with foreign relevance.

Regulatory offences and sanctions

Violations of the provisions of the Federal Archives Act, such as failure to offer archival-worthy documents or unauthorized destruction of archival materials, can be prosecuted as regulatory offences (§ 13 BArchG). The competent authority is generally the Federal Archives.

Significance and recent developments

The Federal Archives Act forms the legal foundation for safeguarding the historical memory of the Federal Republic of Germany. It contributes both to the transparency of state action and to the protection of sensitive information, and is of considerable importance for academia, politics, and the public. Recent legislative amendments also emphasize the role of digital transformation, the expansion of e-government, and compatibility with data protection and freedom of information.

See also:

Source reference: Legal text Federal Archives Act (BArchG) in the currently applicable version.

Frequently asked questions

What legal obligations do authorities have regarding the transfer of documents under the Federal Archives Act?

The Federal Archives Act (BArchG) obliges the federal government, federal authorities, and other federal public bodies to offer their documents generated during official business to the Federal Archives, provided these documents are of lasting value (§ 3 (1) BArchG). The authority is legally required to regularly review which documents are no longer needed for the fulfillment of their tasks and to then offer them to the Federal Archives for transfer and appraisal. The decision regarding archival worthiness and thus transfer is generally made by the Federal Archives. The contributing bodies may only destroy or delete documents after the Federal Archives has given its consent (§ 5 BArchG). There is also an obligation to document the modalities of transfer in a formal process (handover protocol, transfer agreement). For digital documents, it must also be ensured that formats and metadata meet archival requirements. Authorities must also take appropriate measures to ensure that legitimate concerns—such as interests in confidentiality or personal rights—continue to be respected, even after transfer to the archive.

What data protection regulations and protection periods must be observed when accessing archival material under the Federal Archives Act?

The Federal Archives Act contains detailed provisions for the protection of personal data in archival material. According to § 11 BArchG, a general protection period of 30 years from the creation of the documents containing personal data applies. For documents containing particularly sensitive personal data, such as health information or details of criminal investigations, the protection period is generally 60 years from the year of death of the data subject. If the year of death is unknown, it may be estimated or the period calculated from the creation date of the documents. During the protection periods, access is only permitted with the consent of the data subject or under special statutory exceptions, for example for academic research, provided the interests of the data subjects are protected (§ 11 (2), (3) BArchG). The archive is required to ensure compliance with data protection and to weigh interests when handling information requests. After expiration of the protection periods, archival materials are generally freely searchable and accessible.

How does the Federal Archives Act relate to other laws, especially the Freedom of Information Act (IFG) and the Federal Data Protection Act (BDSG)?

The Federal Archives Act is to be applied as a special law with regard to the archiving, use, and release of federal documents and takes precedence within its scope over general laws such as the Freedom of Information Act (IFG) or the Federal Data Protection Act (BDSG) (§ 1 (4) BArchG). This means that the requirements, protection periods, and restrictions of the Federal Archives Act take priority in the context of archival use. Access to information under the IFG is also governed by the provisions of the BArchG in the case of archival-worthy and archived documents. For documents that are not archival-worthy or not yet archived, the IFG or the BDSG continues to apply. Parallel application occurs, for example, when data is still considered administrative records or is stored on data carriers with different archiving statuses. Special laws, such as the Act on the Documents of the Federal Intelligence Service, may also apply.

What is the significance of the term ‘archival-worthiness’ in the Federal Archives Act and how is this determined?

Archival-worthiness is the central criterion for the acceptance of documents by the Federal Archives pursuant to § 3 (1) BArchG. It describes the lasting value of documents for research, legislation, jurisprudence, administration, or the understanding of historical developments. Appraisal is based on professional criteria, which are regularly set forth in appraisal models or appraisal guidelines. These include, for example, the uniqueness of the record, evidential value, legal or social relevance, and documentary value for historical events and societal developments. The decision on archival-worthiness is made by the Federal Archives as the specialist authority, often in coordination with the transferring bodies. Archival-worthiness is a legal term that can be subject to judicial review. The determination is made in a formal procedure, documented by appraisal protocols. Documents not deemed archival-worthy must be destroyed or deleted with the consent of the Federal Archives.

Under what conditions is the use of federal archival materials legally regulated and how is permission to use them granted?

The use of archival material of the Federal Archives is regulated in the BArchG and the rules of use. § 10 BArchG stipulates that archival material is basically open to everyone for research, education, and other purposes, as long as no protection periods or other legal regulations prevent this. Use generally requires a written application specifying the purpose and kind of use. Permission must be denied or restricted if, for example, reasons of data protection, secrecy, copyright, protection of significant public interests, or conservation concerns require it. The Federal Archives may impose conditions and requirements within the framework of usage approval, such as regarding the use of reproductions or the naming of sources in publications (§ 10 (2)). For academic use after the protection periods, access is typically granted without significant restrictions.

What liability regulations apply regarding loss or damage to archival materials under the Federal Archives Act?

The Federal Archives Act does not stipulate any specific liability regulations but refers to the general principles of civil, administrative, and criminal liability. Anyone who intentionally or negligently damages, destroys, or steals archival material is liable to the federal government for damages (§ 823 BGB) and may commit a criminal offence under the relevant provisions, such as property damage or theft. For employees of the Federal Archives, civil service and liability regulations apply. In the course of use, users are liable for damage caused to archival material by improper handling and can be excluded from further use; this is usually specified in the terms of use. The insurance conditions and exact rules of handling are communicated prior to use and must be accepted in writing.