The Boston College Subpoena crew is up with a reprint in full of Auriti et al.’s survey of case law surrounding researcher’s privilege, which is one of the flimsier shields claimed by Ed Moloney in this whole affair, and unfortunately for him the survey undermines his position.
Start with where researcher’s privilege might exist. In laboratories, for starters, because scientific research involves human life and human subjects. In laboratories of public universities, and in those funded by the federal government, whose records may be subject to state FOIA requests. Researchers object to disclosing information on a number of grounds, including the chilling effect on controversial research, violation of test subjects’ privacy, harm to work in pre-publication, and so on, all flowing from the First Amendment.
Courts have defended non-disclosure where, as in Dow Chemical v. Allen, a giant corporation is trying through administrative subpoena to crush researchers who proved it makes a toxic herbicide, which is basically the plot of Michael Clayton minus Tilda Swinton exploding your car. That’s about it. Everywhere else, they’re skeptical, and Moloney’s going to fail all of the balancing tests. None of his research involves the personal vital information or health data of individuals. Moloney has published results of his research, over and over and over again, in books and films and television, so there can’t be harm to his ability to speak. It’s not FOIA or an administrative subpoena he’s trying to encumber, but a murder investigation; the state usually gets what it wants where murder is involved.
When Moloney is denied cert the whole shebang falls back to the First Circuit, where oral histories or transcripts thereof will be reviewed in camera, and that’ll be the end, but for archivists, varieties of privilege are going to keep coming up. So what have we learned here?
Briefly, let’s sing a song for our maligned little brother records management! How can universities avoid a non-disclosure fracas in future, without resorting to phantom privileges? Thus:
Encourage faculty to use reasonable records management practices (e.g., consider which records are necessary or useful to retain, and for how long); establish and follow record retention/disposition schedules that provide for regular review and, where appropriate, destruction of records that are no longer needed.
That’s right! Selection and appraisal. Not sexy, but if we do our actual jobs in the first place, by, you know, explaining to donors that we can’t buck grand juries for them, that their troubles are their own, we don’t have these problems.
Also celebrity, even minor, History-Channel-B-reel celebrity, is no reason to spend years in litigation on a donor’s behalf. Celebrity is no reason to write deeds of gift which include oblique, unenforceable pinky-swears of confidentiality. None of our researchers, and none of our donors is entitled to exclusive access and use of materials. We aren’t a personal vault, or a safe, or a file cabinet, or a curio. Go buy yourself one of those instead.
Finally, we have to talk about the donor-archives relationship. Extending special protections to one high-profile donor opens the door to other future donors. Future donors may be in a position in the present to advocate for protections they hope to enjoy. One wonders why John Kerry hopped on this train, apart from the stated reasons because seriously the IMF is a greater threat to Irish stability than these tapes are, and then one figures Kerry got his juris doctor from BC, and no doubt there’s some embryonic agreement between him and the archives, with similarly ethically bankrupt promises of secrecy.
Contra basically everyone, especially Scott Cline and Brien Brothman who I saw in Chicago a couple years ago, conceptualizing archives as a sacred space of authentic encounter with the thing-ness of history, governed by the conjoining of values in covenant, perverts what archives can and can’t do. Our fealty to donors, which like the Abrahamic covenant is not exactly reciprocal, cripples our capacity to serve any but parochial interests. Given the choice between fealty to the law, which ideally is made and held in common, and fealty to a special relationship with a chosen class, I fail to see how ethically-minded archivists do anything but defend the law. Back down to earth, write your contracts, and let’s stop this desperate clutching at metaphysical straws.