‘Twould be an Honor to Have Archival Privilege
by Christine George
SNAP blog – a blog for Students and New Archives Professionals roundtable
Society of American Archivists
Some might claim something to be “an honor and a privilege,” but as far as I’m concerned, it’s an honor to have a privilege. I’m talking about privilege in the legal sense. In the legalverse, privilege is a protection and an acknowledgement that there is something—a relationship, a situation, whatever—that is more important than the legal process. There are a variety of privileges out there, some of which you may have heard of such as doctor/patient, attorney/client, priest/penitent, and spousal. All of those privileges are meant to protect a relationship. Can your doctor give you the best treatment if you don’t trust him or her enough to tell the truth about your health? Your legal defense would be pretty shoddy if you couldn’t be open and honest with your lawyer. Marriage would be a pretty ugly institution if one spouse was forced to rat out the other. Then there are other privileges, such as the state secret privilege which is invoked if disclosure could threaten national security, and journalist privilege—most commonly found in “shield laws”—that protect sources.
So why the legal lesson? Privilege is something that archivists need to begin caring about. Why? Because we need to decide if we want one. The idea of archival privilege came onto the scene in the 1980s when it was unsuccessfully invoked to stop a subpoena from accessing a collection. The concept has made its way back around because of current litigation involving the Belfast Project, an oral history collection consisting of interviews paramilitaries involved in a period of sectarian violence in Northern Ireland known as the Troubles. (For more information about the Belfast Project, check out the Oral History Section’s microsite and my blog posts on the Issues & Advocacy Roundtable’s blog here and here) While the Belfast Project may have been the catalyst for the renewed interest in archival privilege, it is by no means the only reason to debate the merits of advocating for that legal protection.
Call me a romantic, but I like to think that an important part of an archivist’s job is protecting the historical record. Yes, there are a great many other concerns in our jobs—funding, institutional politics, donor relations, processing backlogs, etc.—but our ultimate goal is the protection and preservation of the historical record. Archival privilege is vital if we want to be able to provide any sort of protection. Why? Because we want to have a representative historical record. No dissident or controversial individual or group is going to want to donate collections if those collections can be used against them. I believe that protecting the historical record is important enough to warrant special legal protection.
In its document concerning the Belfast Project and archival privilege, SAA’s Government Affairs Working Group has recommended that the Council not take any action. (You can view the document here), but it is currently under review. Be warned — several individuals, including myself, have pointed out more than a few instances where the information presented in the document is inaccurate.) Doing nothing is a mistake. As a profession we need to discuss whether or not there should be legal protections available to collections in archives. If we decide to advocate for such a privilege, we need to figure out the desired parameters for such a privilege, and then we need a plan of action to fight for it. If we decide that archival privilege is not something that we want, then we have to say that. Playing the proverbial ostrich and sticking our professional heads in the sand until the current trouble passes is a cop out.
If there’s one thing I’ve noticed about being on the SNAP listserv, it’s that SNAPpers are not afraid to discuss issues that affect archivists. Since SAA’s leadership appears reluctant to discuss this matter in detail, I turn to you. In the words of a beloved archives professor, “Into the breach!” What do you think of archival privilege? Are you satisfied with the current limited legal protections we can assure donors? Would you consider it an honor to have archival privilege?
Christine Anne George, JD, MSIS, is the Faculty Services/Reference Librarian at Charles B. Sears Law Library at SUNY Buffalo. Her article, “Archives Beyond the Pale: Negotiating Legal and Ethical Entanglements after the Belfast Project” will be in the next issue of the American Archivist.