Egad, it’s been way too long since the last OTR post! I’ll assign fault to the rather substantial work involved in prepping for and cleaning up after (so to speak) an SAA Council meeting and my final push to publish a major research report (forgive the plug for my terrific day job, but consider taking a look!).
You may have seen SAA’s discussion statement about the Belfast Project at Boston College that has drawn lots of concern from archivists and historians over the past two years. The Oral History Section also has posted a lot of useful information. Today we hear from Frank Boles, SAA past president and chair of our Government Affairs Working Group, who led the work to develop our statement. He and his merry band of GAWGers always do excellent research and thinking before they send a document to Council, and this one is no exception.
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Virginia Raymond has asked whether “One of these things is not like the others …. spouse, priest, oral historian, psychiatrist, attorney.” This grouping of professions stems from her discussion of a legal case involving the Boston College Library, which was subpoenaed on May 11, 2011 by a Federal District Court to surrender closed oral histories the court believed relevant to a murder investigation in Northern Ireland. Many appeals have ensued, and a request to review the case is pending before the U.S. Supreme Court. At the heart of the case is a simple question: how much confidentiality can an archivist legally guarantee to a donor, such as a donor of an oral history?
I have heard some archivists argue that an “archival privilege” of confidentiality exists, or should exist, to shield an archives from a hostile court’s order. They assert that, like spouses sharing the daily intimacy of life, a priest counseling a penitent, a psychiatrist caring for a patient, or a lawyer talking to a client, an archivist’s relationship to a donor is such that a legally sustainable sphere of privacy should extend to any material donated with donor-imposed restrictions on use.
The case raises two questions: Do U.S. courts currently recognize an absolute or almost absolute legal right to confidentiality for scholars or archivists? And if they do not recognize such a right, should they?
The short answer to the first question is no. Two federal district judges and the First Circuit Court of Appeals have explicitly found that such a right does not exist. Although the Supreme Court may take up the case, for the time being the honest answer to a potential donor is that in most, if not all, instances, an archives would be required to surrender material subpoenaed by a court.
As for the second question, I noted above that some archivists believe that a legal right of archival privilege is needed. They have recommended that if the Boston College case is heard by the Supreme Court, SAA should file an amicus brief asserting such a privilege. Their justification is that if society wants donors to give honest, unaltered records regarding controversial subjects for eventual historical use, archivists need a mechanism to ensure confidentiality. No archivist wants to see a donor end up in federal prison. If legally recognized, archival privilege would make it possible to close a collection against any unwanted inquiry, regardless of the source. While this may seem a reasonable argument, it asserts, in effect, that the needs of future research always transcend the societal needs of the present. Not all archivists would agree.
I have been asked if the profession really believes that archivists should withhold essential legal evidence found in a closed collection no matter what. Should the nature of the case matter? What if a collection contained proof of the widespread release of dangerous chemicals that would justify medical claims of those injured? Would the obligation to confidentiality apply if an archivist knew there was proof that someone had been convicted in error? If an innocent person is given a death sentence, does the bond of confidentiality still hold? Is history always more important than justice?
Such examples clearly are extreme, but the claim of an absolute right to honor and protect donor-imposed restrictions creates an absolute obligation with difficult ethical implications. Before arguing before a court that a legal right to archival privilege exists, SAA would need to determine whether there is consensus within the profession, how that consensus might be balanced against competing legal and ethical demands, and what the appropriate processes would be for resolving differences of opinion.
In the end, we should recognize how easy it is to for any of us to rise up in indignation; moving beyond to encourage thoughtful and productive conversation requires more resolve. Action movies aren’t made about people who ask for thoughtful conversation. I look forward to a professional conversation to discuss a slight variant on the question posed by Ms. Raymond: spouse, priest, archivist, psychiatrist, attorney–do they really go together?
Off the Record 
OK, I’m wearing my kevlar today so I’ll start this one off. I think an amicus brief for archival privilege would have a tough time largely because intepretations of our existing federal and state laws and court decisions on privacy and confidentiality are so bent out of shape these days. In terms of law, I don’t think there’s much archival privilege precedent for the Supremes to hang their hat on here. Thinking about the BC case I find myself thinking about Bradley Manning and Wikileaks, which is different because it relates to secret government records, but is it really different? Then there are issues related to confidentiality of corporate proprietary information. Then there’s the Patriot Act. I think the scope of any archival privilege needs to be carefully considered in the contexts of personal papers, govt. records and corporate records. I’m thinking that courts need to weigh the factors on a case by case basis, and I would hope any breach of agreed confidentiality would occur only when there is an impartial review that demonstrates a truly *imminent* theat to the lives of others. Breaking into a closed collection for discovery decades after terrible events seems hard to justify, but blanket archival privilege seems like an extreme solution too… You can tell I’m not an attorney and I didn’t even stay in a Holiday Inn Express last night!
The right of confidentiality is not the same for all professions. I believe that psychologists, if not psychiatrists, are obligated to report an individual whom they believe is about to commit a crime. Medical confidentiality would presumably be subject to modification in the case of infectious diseases. The question is really whether there is any political will to provide such protection for archivists. At this point, I cannot see support coming from the executive branch or most legislative branches.
My initial reaction would be investigating a crime would trump privacy just as it does with the medical profession. Perhaps a possible middle ground between respecting donors and the law would be a mediated discovery effort to determine which documents, if any, are actually relevant to the case instead of handing over the entirety of the collection to prosecutors. I recognize this type of review would be expensive, but maybe we, as archivists, need to consider costs like this as part of a risk analysis in accepting collections.
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I would think that promised confidentiality would include the common escape clause — “consistent with legal requirements” or except “as required by law”. It is theoretically possible to argue for the same type of shield laws that in certain states protect journalists. It might also be possible to have an attorney take klegal custody of the records and then argue privledge from that angle. But I would question if this is good public policy. Archivists seeking collections from donors are not uninvolved parties. They are active participants in a commercial transaction trading promises for the donor’s records. In civil litigation the parties have a duty to turn over relevant documents to the opposing party. It doesnt seem to make sense that a party could evade that duty by donating their documentation to an archives and negotiating a confidentiality agreement to obstruct discovery.
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My gut reaction: this doesn’t take into account the atmospheres in which most archivists work. Given that many (most?) archivists work in environments that try to minimize all legal liability (especially the kind that involves foreign governments asking for potential evidence), how many institutions would actually support archivists who insisted on donor confidentiality at the risk of bringing a lawsuit against their employer? Do archivists really have a professional obligation to set themselves up for a legal showdown, if the institution is not willing to defend them? I’m really troubled by any suggestions of archival privilege when it doesn’t take into account the fact that in almost every setting in which they work, archivists are often on the lower rungs of the food chain in terms of institutional recognition and resource allocation.
If the idea here is that working towards achieving archival privilege is a way to advocate for professional recognition for the important work archivists do, then this raises even more questions. It has the potential to make archivists into political targets without the support of a highly visible licensing organization where confidentiality is understood to be something that is at the heart of the relationship between client and professional (e.g., doctors and lawyers). Archivists have multiple people to answer to, but for the sake of this argument, we’ll go with the donor and the users. Saying that archival privilege allows an archivist to acquire materials, restrict their use, and protect the donor from whatever may come necessarily denies the public the ability to access the material in the same time frame (and some might argue, the ability of the public to hold a donor accountable for any ethical or legal violations). In the case of attorneys, while parties do have to share evidence with each other during trial, an attorney has a special relationship with the client that obligates the attorney to solely argue the client’s case. Archivists necessarily have to balance the interests of donors and the public, so I’m not sure how the concept of privilege translates well to our professional relationships, which are necessarily multi-party.
The concept of “Archival Privilege” does not compare to the privilege extended to doctor/patient, priest/confessing person, lawyer/client, etc. Archivists generally do not take the “confessions” of the donor in negotiating a donation; they do not involve the treatment of an illness, mental or physical, of the donor; they do not discuss legal issues pertaining to the donor at the same level or degree that a lawyer does with a client. We are dealing with third parties–the donors, not with the subjects themselves.
Sometimes I worry that, in seeking the trappings of the older and more formally-established professions, archivists fail to see the potential liabilities of that enhanced standing. Archivists don’t have to worry about being disbarred, sued for malpractice, or otherwise being held to true standards or exposed to serious consequences for individuals. Accordingly we are not required and do not have a truly sophisticated engagement with our legal environment. I think that more and better general education for archivists on legal topics should precede any campaign for formal legal prerogatives.
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