The Privileged Class

President and First Lady vacation at Hammersmith Farm. Hugh D. Auchincloss, Mrs. Auchincloss, President Kennedy, Mrs. Kennedy, others. Narragansett Bay, RI, aboard the US Coast Guard Yacht "Manitou"., 09/09/1962 NARA identifier #194213

President and First Lady vacation at Hammersmith Farm. Hugh D. Auchincloss, Mrs. Auchincloss, President Kennedy, Mrs. Kennedy, others. Narragansett Bay, RI, aboard the US Coast Guard Yacht “Manitou”., 09/09/1962 NARA identifier #194213

Christine Anne George wants SAA’s Government Affairs Working Group to take up archival privilege. Even though they calmly explain that they refused to deal with this in the 1980s because they didn’t have a legal foot to stand on. Not good enough!

The first time that archival privilege was invoked in the 1986 case Wilkinson v. Federal Bureau of Investigation the district judge did not explicitly state that archival privilege did not exist. The opinion stated that no one had ever attempted to invoke archival privilege before, but that, ultimately, archival privilege could not be applied in that particular instance, given the facts of the case.

This is so stupid it drools. It’s important to remember that not just one court, but a whole host of courts, reading Burka at 521, has refused to identify an archivists’ or researchers’ privilege. Wilkinson wasn’t the last time a court refused to find archivists’ privilege somewhere in the law, it was as George notes, the first.

Second, it follows that SAA should go looking for archival privilege because the courts haven’t said it’s not out there somewhere. Really? This is like biologists telling us they can’t find evidence of Bigfoot, and us saying, Well, goddammit, let me at that sumbitch! He’s out there sommerrz! Perhaps George can direct us to where in common law or federal statute we should go looking for our privilege.

Sure, archivists’ privilege isn’t a right, but it’s a pretty strong extra protection for donors who already have pretty strong protections, and it’s a huge cudgel for archivists to wield in a realm in which we really have no business carrying cudgels. And why do I think this? Because in the Belfast case, Boston College issued permission to publish for the guy whose book ultimately got BC into this mess. That is, BC argued, on the one hand, researchers who receive special permission can distribute whatever material they want. But when the court wants the same material, it’s subject to archivists’ privilege.

This is, at best, a means for archivists to create a privileged class of friendly researchers, the researchers we know are on our side and won’t do any damage, in BC’s case, researchers who share our 1980s nostalgia and still have those annoying “36+6=1” bumper stickers on their Volvo hatchbacks. At worst, archivists’ privilege is an extra hurdle for people suing governments or institutions for information. Wilkinson, recall, was suing the FBI for damages related to COINTELPRO harassment of him and his friends, and the FBI was trying to carve out some extra exemption to FOIA that had never been asserted before. A sweep-everything-under-the-redaction-pen-type privilege. We’re on the side of spooks here. Given the discriminatory nature of the privilege, and given the chilling effect on research, you pro-spook archivists had better come up with an airtight genealogy for this thing.

The rest of the bullet points prove my position:

The district judge in the Belfast Project made several concessions including acknowledging in his opinion that this particular instance warranted higher scrutiny, and allowing the interviews covered by the second subpoena to be reviewed in camera, or in private, so that the details of the interviewees would not be revealed.

Sounds like the judge was following the three-part test of privilege-vs.-need in Snedigar v. Hodderson, and splitting the difference by viewing the disputed records in camera. This doesn’t mean s/he agrees with pro-spook archivism.

Archival privilege is by no means a legal right. Privilege is a very fragile protection that is incredibly difficult to obtain and beyond easy to break. No individual or group has a right to privilege. In fact, if you want the protections of privilege, you have to actively invoke it. It is never assumed. It is also something that will take archivists decades to achieve, as evidenced by journalists who sought their own privilege.

Well, on this we all agree. Except the reporters in Branzburg v. Hayes needed confidentiality in order to do their reporting, and they reasonably anticipated that their compliance with the grand jury would lead to the imprisonment of their subjects, and they had the First Amendment behind them, and they still lost and then it took 30 years to get the federal circuit courts to recognize that the privilege might exist, and to get DoJ rules issued and to get 40 states to promulgate shield laws. They had the First Amendment behind them and the threat of violations of the Fifth Amendment rights of the people they interviewed, and it still took them forever.

Start telling us now what the shape of archivists’ privilege is (and I’m going to stop calling it “archival privilege,” both because other privileges name the person — lawyer-client privilege, reporter’s privilege — and because the presumed privilege and its discussion should be fugitive, non-archival, like day-glo poster paint) and what its legal precedents are, and why it’s necessary, and how the greater good is served when archivists decide who sees what and how history gets written.

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