E-mail, SMS, messagerie: la Basse-Saxe veut être le premier État à assouplir les obligations d'archivage

Niedersachsen, Germany’s Lower Saxony state, is preparing to become the first German federal state to relax its archival obligations regarding digital communication, according to reports. The proposed change would exempt emails, SMS messages, and messenger chats from the requirement to submit them to official archives, marking a significant shift in how public administration records are handled. This move comes amid growing debate over the documentation of digital communications in government operations. The plans, outlined in a draft amendment to the state's Archives Act, aim to align with modern communication practices, which have largely moved away from traditional written correspondence. Currently, all completed documents from state and federal authorities must be submitted to designated archives, which then decide what is deemed worthy of long-term preservation. Under the new proposal, however, digital communication, particularly emails, SMS, and chat messages, would no longer need to be submitted beyond the parts already included in formal records. The rationale cited by the State Chancellery is to adapt existing legal frameworks to contemporary methods of communication, which are often informal and transient. The proposed change has sparked controversy among experts and officials who argue that such exemptions could undermine transparency and accountability in public administration. The issue of documenting digital communication has been a point of contention for years, with instances of deleted messages coming under scrutiny in past investigations. For example, current European Commission President Ursula von der Leyen faced criticism during the so-called advisor affair and related vaccine contracts due to deleted messages. Similarly, former Transport Minister Andreas Scheuer was scrutinized for deleted mobile data during parliamentary inquiries. Even former Chancellor Angela Merkel’s digital communications reportedly were documented based on the discretion of her office rather than the Federal Archives. Thomas Henne, a professor of archive law at the Marburg School of Archives, expressed skepticism about the proposed changes. He argued that the move directly challenges the purpose of archives and should be firmly rejected. According to Henne, determining which documents are not archived should remain the responsibility of the respective archives, not the administrative bodies themselves. He warned that allowing authorities to self-regulate what gets archived and what gets deleted risks creating a selective record that favors positive outcomes while omitting critical information. “That can’t be the standard for transparency in a democratic rule of law,” Henne stated. Henne further highlighted potential risks associated with the exemption. He noted that much of today’s administrative work already does not result in formal records and instead resides solely within email exchanges. If digital communication is predetermined not to be archived, the risk of misuse increases significantly. He emphasized that this concern extends beyond federal agencies, noting that similar issues have arisen at the state and municipal levels, where digital communication has exposed scandals. The justification provided by the state government, that the proposed changes relate to less relevant, short-term communication, was met with resistance by Henne. He criticized the implication that archives seek access to private communications, stating that according to current regulations, official accounts should only contain official communications. He suggested that the proposed changes could lead to a situation where only favorable records remain, undermining the integrity of historical documentation. As the State Chancellery continues to evaluate responses from non-public stakeholder consultations, the final shape of the legislation remains uncertain. However, the proposed amendments reflect a broader trend toward adapting archival laws to the realities of digital communication, even as concerns about transparency and accountability persist. The outcome of these discussions will likely influence future debates on how public records are managed in the digital age.