The Federal Supreme Court had ruled in the case scheduled for official publication that the Judgment 2C_1024/2021 of November 2, 2022 to deal with the question of the conditions under which health data must be archived according to cantonal archiving law. Specifically, this concerned the State Archives of the Canton of Basel-Stadt, to which a juvenile personnel file of the Juvenile Prosecutor’s Office of the Canton of BS and a patient file of the University Psychiatric Clinics Basel were to be transferred.
The complainant – the person concerned by both files – demanded that these files be blocked. The Federal Supreme Court, on the other hand, allowed their archiving, essentially on the basis of the following considerations:
- The transfer of the files to the archive encroaches on the scope of protection of Art. 13 BV (informal self-determination) and Art. 8 ECHR.
- However, the Archive Act BS as a legal basis is precise enough. The State Archives has discretionary power in the case of archival value, but this is limited by legal restrictions on access to archived data and control options.
- There is a public interest in the archive, the rational handling of the past, the “collective memory”, the retrospective ability to understand and control state action, and here “in the future, for example, psychiatric-historical” or “analytical juvenile criminal law”. The actual weighing of interests, however, only takes place when archive data is accessed, and the Federal Supreme Court does not want to anticipate this.
- The interests of the complainant do not prevail, because of the access restrictions mentioned (protection periods: archive data may only be used after a long time).
- Although the files of interest predate the Archives Act, this non-genuine retroactivity does not contradict the BV, especially since it is not opposed by any well-acquired rights.