Should a legal right to “archival privilege” be established?

Should a legal right to “archival privilege” be established?
Society of American Archivists President Jackie Dooley
Off the Record – Join the Conversation with SAA Leaders
February 14, 2013

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 posteda 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.


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?


For comments in response to the article, click here