Published on: 2014-01-17
INTERNAL FEDERAL PUBLIC SERVICE
5 JANUARY 2014. - Royal Decree amending the Royal Decree of 16 July 1992 on the communication of information contained in the population registers and the register of foreigners
REPORT TO THE KING
Sire,
The Royal Decree of 16 July 1992 on the communication of information contained in the population registers and the register of foreign nationals was issued in implementation of the Law of 19 July 1991 on population registers, identity cards, foreign nationals' cards and residence documents and amending the Law of 8 August 1983 organising a National Register of Natural Persons.
This draft Royal Decree creates a new possibility of use, namely obtaining information contained in population registers (either by means of extracts or certificates, or by means of lists of persons, or by means of consultation) for genealogical, historical or other scientific purposes. There is a growing demand from researchers in various disciplines to consult these registers in order to study social processes, economic changes and demographic transitions.
First of all, population registers come in two forms:
- paper population registers": these were kept until 1992;
These were closed after each decennial census.
- electronic population registers": from 1992.
These have been continually updated since 1992. This means that from this date onwards, the registers can no longer be closed every 10 years but must be continuously updated. The 120-year period is calculated at the time of the request for information contained in the registers.
The transfer of these registers to an electronic medium has also been made possible: paper-based registers can be lost or damaged, either as a result of an incident, poor storage conditions or unnecessary handling. Researchers can now use electronic copies. Article 5ter is designed to encourage local authorities to digitise their records in accordance with current standards and best practices that guarantee the long-term use of electronic files.
When digitising, the following recommendations should be taken into account. The entire digitisation project must be documented from the outset, including logistics, the physical processing of documents, digitisation and the storage of electronic files. Digitisation must meet minimum technical quality requirements and the choice of recording format must comply with the requirements of long-term preservation.
During digitisation, technical, administrative and descriptive metadata must be recorded. Regular quality control is required throughout the project. Once the digitisation project has been completed, a procedure must be defined for the regular checking of the electronic archives.
On 30 April 1997, the Commission de la Protection de la vie privée issued an opinion on the accessibility of population registers for genealogists.
The Commission considered that the consultation of population registers by genealogists should be authorised provided that the reality of genealogical research is established. Furthermore, consultation of the registers is subject to certain conditions (1).
This draft Royal Decree sets out these procedures below.
As a certain amount of time has elapsed since the aforementioned opinion of the Commission for the Protection of Privacy, the project has again been submitted to the aforementioned Commission.
The Privacy Commission issued its opinion no. 14/2012 on 2 May 2012.
The Commission made a preliminary comment on the law of 24 June 1955 on archives and its application to population registers.
The Commission asked for clarification as to which regulation applied to the population registers deposited in the State Archives: the present Royal Decree of 16 July 1992 or the Archives Act.
The law relating to archives concerns the documents of certain public bodies. It stipulates that documents more than thirty years old must be deposited in the State Archives.
Thanks to a legislative amendment dated 6 May 2009, the period has been reduced from 100 to 30 years in order to meet the wishes of historians and citizens who want to be able to carry out research into recent history or genealogy.
These are the following documents:
- those kept by the courts;
- those kept by the Conseil d'Etat;
- State administrations;
- the provinces and public establishments subject to their control or administrative supervision.
As far as municipalities are concerned, the law stipulates that documents more than thirty years old, kept by municipalities and public establishments subject to their control or administrative supervision, may be deposited in the State Archives (cf. article 1, paragraph 2, of the law of 24 June 1955). However, these documents remain the property of the municipality.
However, any publicity remains subject to the law of 19 July 1991 relating to population registers, identity cards, foreign nationals' cards and residence documents and amending the law of 8 August 1983 organising a National Register of Natural Persons and its implementing decrees.
This Royal Decree of 16 July 1992 therefore applies to population registers deposited in the State Archives.
It should also be noted that the municipalities still own their population registers, even if these have been entrusted to the Kingdom's General Archives.
The Council of State issued its opinion on 23 October 2013. The Council's suggestions have been respected.
Comments on articles
Article 1
Article 3 of the current Royal Decree of 16 July 1992 on the communication of information contained in the population registers and the register of foreigners currently sets out the cases in which a person or body may obtain an extract or certificate that has been drawn up using these registers.
This article adds the possibility of obtaining extracts and certificates for genealogical, historical or other scientific purposes. The last paragraph of Article 4 of the draft, according to which the Collège communal - College des Bourgmestre et Echevins may request any additional information from the applicant to support the request, meets the comment made by the Commission de la protection de la vie privée et de l'Inspection des Finances that this would be a mere stylistic device.
Information extracted from population registers closed more than 120 years ago may be freely issued. If requested, ascending filiation may also be mentioned: without this, no genealogical research is possible.
In practice, there is very little chance that the extracts or certificates relate to people who are still alive: the registers were closed after each decennial census. These are people who were born more than 120 years ago.
Stricter rules apply to the issue of extracts and certificates containing information taken from population registers that have been closed for less than 120 years. Respect for privacy plays a greater role here, requiring the consent of the person concerned or their descendants for the issue of the personal data requested. It should be emphasised that it is up to the applicant, and therefore not the local authority, to obtain this consent.
In order to avoid any disputes, a hierarchy of persons who may give their consent has been included:
- The first is, of course, the person themselves, if they are still alive and sane. They are the masters of their own information.
- If the person concerned has died or is no longer of sound mind (e.g. in the case of dementia), consent must be given by the surviving spouse or surviving legal cohabitant.
- If the latter is also deceased or is no longer able to express his or her wishes, consent must be given by at least one of the first-degree descendants of the person concerned. This does not mean that all first-degree descendants (in this case, the children) must give their consent. If all descendants had to give their consent, the work of researchers would be considerably complicated. This article uses the terminology of article 901 of the Civil Code to express the inability to give consent. Article 901 of the Civil Code deals with the capacity to make a gift inter vivos or a will: for this purpose, "one must be of sound mind".
If there are no first-degree descendants able to give their consent, it may be given by the Municipal College or the College of Burgomasters and Aldermen. This option has been chosen in order to avoid discussions within families. The Collège communal or the Collège des Bourgmestre et Echevins is responsible for keeping the population registers.
The above consent must be submitted by the applicant. The consent may also include authorisation to mention ascending parentage.
The local authority can issue these extracts and certificates at cost price. This seems reasonable because it has to employ its own staff to search for and issue the document. Investment costs (e.g. for digitisation) can also be taken into account.
In order to respect the privacy of the person concerned, their surviving spouse or surviving legal cohabitant and their descendants, a system has been developed to ensure that the applicant's address is not disclosed. The applicant may enclose a letter addressed to the person concerned. The local authority will forward this letter to the addressee, who will then decide whether or not to comply with the applicant's request. Under no circumstances may the municipality communicate the address of the addressee directly to the applicant.
Article 2
Article 2 concerns the consultation of population registers. Registers that have been closed for more than 120 years may be freely consulted for genealogical, historical or other scientific purposes. The manner in which they may be consulted is determined by the Municipal Council or the Council of Mayors and Aldermen. This concerns practical aspects such as opening hours, the deadline for requests, etc. The municipality can regulate these details itself for archives that it still has in its possession.
It is also possible to digitise these registers, which will contribute to their long-term preservation. It is also possible to make reproductions of these registers, which have been closed for more than 120 years, available to third parties at cost price, provided that they are intended for genealogical, historical or other scientific purposes. Such third parties may not distribute the registers. It is important to prevent these lists from finding their way onto the Internet.
In practice, it will of course always be a natural person who can consult these registers.
This does not preclude the fact that this person may do so as a member of a history and genealogy circle, a partner in a company specialising in genealogical research, etc.
Article 3
Article 3, 2°, allows lists to be distributed to researchers who explicitly justify their historical interest or any other scientific interest. In this case, the list may also mention ancestry.
Article 4
Article 4 lays down the conditions to be met when requesting information from population registers:
- for population registers that have been closed for less than 120 years, this request must be made by reasoned request and with a declaration that the information will only be used for genealogical, historical or other scientific purposes, with mention of any publications for which the data will be used. This applies both to requests for extracts and certificates and to requests for lists of persons.
- for population registers that have been closed for more than 120 years, no declaration is required. This is compensated for by the "reading room administration" in the municipal archives (who records who has consulted which document).
If the person concerned, their surviving spouse or surviving legal cohabitant or one of their first-degree descendants, agrees to the issue of an extract, certificate or list of persons, the Local Government College or College of Burgomasters and Aldermen may no longer object.
Article 5
Article 5 requires no comment.
Article 6
In accordance with article 10 of the law of 8 August 1983 organising a National Register of Natural Persons, the municipality must (whether or not from among its staff) appoint an information security and privacy protection consultant. This security consultant is responsible, among other things, for monitoring consultations of the municipality's population registers. Under the supervision of the security consultant, a log of consultations of the population registers is kept up to date. This logging is a tool for local authorities in the event of any disputes.
I have the honour of being,
Sire,
of Your Majesty,
the very respectful
and most faithful servant,
The Home Secretary,
Mrs J. MILQUET
(1) Opinion no. 11/97 of 30 April 1997.
5 JANUARY 2014. - Royal Decree amending the Royal Decree of 16 July 1992 on the communication of information contained in the population registers and the register of foreigners
PHILIPPE, King of the Belgians,
To all, present and future, Greetings.
Having regard to the law of 19 July 1991 relating to population registers, identity cards, foreign nationals' cards and residence documents and amending the law of 8 August 1983 organising a National Register of Natural Persons, article 2, paragraph 3;
Having regard to the Royal Decree of 16 July 1992 on the communication of information contained in the population registers and the register of foreigners;
Having regard to opinion no. 14/2012 issued by the Privacy Commission on 2 May 2012;
Considering the opinion of the Inspection des Finances, given on 11 January 2013;
Having regard to the opinion of the Council of State, no. 54.077/2 given on 23 October 2013;
On the proposal of Our Minister of the Interior,
We have stopped and will stop :
Article 1. Article 3 of the Royal Decree of 16 July 1992 on the communication of information contained in the population registers and the register of foreigners is supplemented by the following paragraphs, worded as follows:
"The restrictions on the issue to third parties of extracts and certificates from the registers do not apply where these are intended for genealogical or historical research or other scientific purposes and provided that the registers have been closed for more than 120 years. By way of derogation from Article 4, the extract or certificate thus obtained may also mention ascending filiation.
Extracts and certificates from registers that have been closed for less than 120 years may be issued to third parties for genealogical, historical or other scientific purposes with the written consent of the person concerned. The authorisation must specify the purposes.
If the person concerned is deceased or no longer of sound mind, consent must be given by the surviving spouse or surviving legal cohabitant. For minors, consent is given by the parents or guardian.
If the person concerned is deceased and has left no surviving spouse or surviving legal cohabitant, or if the latter is no longer of sound mind, consent must be given by at least one of the first-degree descendants of the person concerned.
If there are no descendants in the first degree or if they are not of sound mind or are deceased, it is up to the College of Burgomasters and Aldermen to decide whether or not to issue extracts or certificates.
The aforementioned consent must be provided by the applicant. The consent may also include authorisation to mention parentage.
If the applicant does not know the address of the person whose consent is required, a letter addressed to the person whose consent is required may be attached to the application with a view to obtaining that person's consent. The local authority then sends this letter to the addressee, who then decides whether or not to comply with the applicant's request. The municipality does not communicate the recipient's address to the applicant.
Communes may issue extracts and certificates at cost price.
Art. 2 Articles 5a and 5b, worded as follows, shall be inserted in the same Order:
"Art. 5bis. Consultation by third parties of registers that have been closed for more than 120 years is authorised for genealogical, historical or other scientific purposes, whether they are paper registers or registers that have been transferred to another medium for long-term preservation.
The procedures for this consultation are laid down by the Municipal Council or the College of Burgomasters and Aldermen.
Art. 5ter. Communes may transfer their registers to another data medium with a view to long-term preservation.
Communes may make reproductions of registers that have been closed for more than 120 years available to third parties at cost price if they are intended for genealogical, historical or other scientific purposes.
However, these third parties may not distribute the reproductions obtained.
Art. 3 Article 7 of the same Order is supplemented by a provision at point e), worded as follows :
e) researchers who expressly justify a clear historical interest or any other scientific interest. In this case, the list may also mention ascending lineage, notwithstanding the provisions of paragraph 1.
Art. 4 An Article 10bis is inserted in the same Order, to read as follows :
"Art. 10bis. Requests for information contained in registers that have been closed for less than 120 years, for genealogical or historical purposes or for other scientific purposes, either by means of extracts or certificates, or lists of persons, must be addressed to the Collège communal or the Collège des Bourgmestre et Echevins by means of a reasoned request.
This request also includes an undertaking by the applicant to use the information obtained solely for genealogical or historical purposes or for other scientific purposes, mentioning any publications for which this information will be used.
Before giving its consent, the Local Council or the College of Burgomasters and Aldermen may, before communicating the information requested from the population registers, ask the applicant for any additional information intended to substantiate the request.
Art. 5 Between article 10 and article 10bis of the same order, the words "Chapter V - Miscellaneous provisions" are inserted.
Art. 6 An Article 12bis is inserted in the same Order, to read as follows :
"Art. 12bis. The information security and privacy protection consultant referred to in Article 10 of the Act of 8 August 1983 organising a National Register of Natural Persons, who is appointed by the municipality, is responsible for checking consultations of the municipality's population registers.
A log of consultations of the population registers is also kept under the supervision of the aforementioned security consultant".
Art. 7 Our Minister of the Interior is responsible for the execution of this decree.
Given in Brussels, on 5 January 2014.
PHILIPPE
By the King :
The Home Secretary,
Mrs J. MILQUET
