“Archival privilege” and the rule of the dead

I’ll let the president sum up the state of play:

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.

That anyone in our field would coin the term “archival privilege” much less promulgate it as a thing is totally insane, for a number of reasons, not least of which is that Boston College is cribbing its strategy for archives advocacy from the waning days of the Nixon administration.

So let’s walk back from the specifics of the case — because the donor’s best defense is actually to argue that an oral history is more like hearsay than like a deposition. We don’t take oral histories under oath. There’s no guarantee that the person speaking is telling the whole truth, etc. Which means that the donor’s lawyer needs to skunk this thing after discovery. You, the archives, are not the donor’s lawyer, and as thrilling and Pelican Brief-y as it is to think you are, you have no business skunking things before discovery — and let’s walk back from the big all-caps purpose of archival science being TO PROVIDE ACCESS TO HISTORIC MATERIALS.

The ugliest part about archival privilege is that archivists have presumed its existence, based on no legal precedent, and based on no compelling public interest. We’ve assumed the privilege exists because we want to get close to donors. We are obsessed with the erotic frisson of the oral history — a tete-a-tete on tape. We believe batches of personal papers are key texts, shibboleths yielding passage to the fastnesses of microhistory.

They’re not. Donor restrictions are the rule of the dead over the living. Promises of confidentiality, limits on access, limits on reproduction, on publication, requests that heirs of the deceased be contacted before a collection of dimestore paperbacks needs to be deaccessioned, all limit archivists’ judgement and researchers’ capacity to create new knowledge out of old records.

Also, just saying, but victims tend not to contribute their artifacts to repositories. Unless for “artifacts” you read “bodies” and for repositories you read “the grave.”

This is feeble-minded, and SAA needs to come down hard.

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