Décision de justice

Access to “classified defence” archives must be possible with no prior procedures once the legal deadlines for non-disclosure have expired

Since 2011, the Government has imposed a declassification procedure before “classified defence” archives can be accessed. Archivists and historians, considering that this procedure delays or prevents access to these documents, have asked the Conseil d’État to cancel this procedure. The court notes that, according to the law, these archives are automatically available for disclosure once a period of 50 or 100 years has expired. It is for this reason that the Conseil d’État has today cancelled this preliminary declassification procedure as being contrary to the law currently in force (1).

By an order in 2011 followed by a second order in November 2020, the Prime Minister made each “classified defense” archive subject to a declassification procedure before being disclosed to individuals on request after the expiry of the periods set by law.

Several archivists, historians and their associations challenged this preliminary procedure before the Conseil d’État, arguing that it delays or prevents effective access to archives and is contrary to the law. 

The 2008 law overhauling the regime for the disclosure of public archives in fact imposes deadlines of 50 years regarding access to documents whose disclosure could harm national defence secrets or 100 years for documents whose disclosure would also be likely to cause harm to the security of those individuals named or who can be easily identified. 

The Conseil d’État recalls that classified archives may be disclosed automatically, in accordance with the law as it currently stands, on expiry of these deadlines. The Prime Minister cannot therefore make access to these archives conditional on a prior declassification procedure. For this reason, the Conseil d’État annuls this procedure set out in the Prime Minister’s order of 13 November 2020.

(1) A bill on the reform of access to national defence archives is currently under discussion in Parliament (Bill on the prevention of terrorist acts and intelligence).

Read the decision n°444865-448763 (in french)