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Tag Archives: Archives–Legal status laws etc.

"Big Foot, leader of the Sioux, captured at the battle of Wounded Knee, S.D." Here he lies frozen on the snow-covered battlefield where he died, 1890," via NARA ARC#530805

“Big Foot, leader of the Sioux, captured at the battle of Wounded Knee, S.D.” Here he lies frozen on the snow-covered battlefield where he died, 1890,” via NARA ARC#530805

Christine Anne George won’t STFU and move on, so someone I suppose has to be out here in the cold voicing reason.

I have yet to see reasonable explanations of the following lines of questioning, among others:

1) At the end of the line, having gone up to the U.S. Supreme Court and back, selections from the Belfast project were reviewed in camera. Boston College’s pinky-swears of confidentiality were balanced against the United States’ treaty obligations. Christine Anne George asks [ppt] for in camera review, and for a balancing test. Question: since George’s preferred outcome is exactly what happened in a world without archivists’ privilege, what is it exactly that the new privilege adds? What does it do that we desperately need done?

2) Journalists’ privilege, enshrined in shield laws, emanates from the press protections of the First Amendment. Priest-penitent privilege likewise flows from the First. Attorney-client privilege flows from the Fifth’s protection against self-incrimination, and from the Sixth’s and Fourteenth’s guarantees of due process. Where is the basis for archivists’ privilege in statute? Where is the basis in common law?

I’m going to go ahead and field that one for you: the basis is nowhere. Archivists’ privilege flows from authoritarian ideology and infantile religiosity. It asserts that the people with the keys to the vault always have society’s best interests at heart. It sacralizes communications between donor and repository, which if it didn’t already stink of the worst parts of medieval Europe would still drive our profession away from relationships whose boundaries can be qualified — contract — and into relationships of mutual debt so all-encompassing that it’s obscene for either party to call in the other — covenant. We move from being professionals to being basically the guy to whom YHWH said “Kill me a son.”

3) If your interest in this whole fantasia had been piqued by — let’s imagine — a Catholic archives’ refusal to comply with a state’s subpoena for personnel records of pedophile priests, whose side would you be on? Because the privilege will allow any institution which wants to attenuate its compliance with the judicial process big crazy latitude.

Oh wait. We don’t have to imagine. The Diocese of Rockford attempted to quash state’s subpoena in Illinois v. Campobello by arguing that the records created in the bishop’s archives were created with implicit confidentiality. (They also trotted out psychiatric, clerical and something they called a “critical self-analysis” privilege, by which one imagines counsel means self-critical analysis, which is what corporations use to shield records of accident investigations. Which, Rockford, wow. You have the worst fucking attorneys.)

Trial court dispensed with the claims summarily. Now imagine there’s an archives shield law in Illinois. Trial court treats communications bound for the archives as privileged, and institutional action to protect pedophiles gets devoured by this beast you’ve made.

To summarize: In order to alleviate this crisis-with-one-instance, George wants to spin from thin air a blanket protection for spooks, polluters, poisoners and pederasts, and to put archivists’ commitment to access on the chopping block. We take her counsel and come to ruin.

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Christine George is wrong. For a number of reasons. I keep going over them, and it’s exhausting, so I’m going to stop. The specifics of the Belfast case — how deeply Moloney screwed the pooch with the oral histories; the flimsy case that none of his secret interviewees ever made it onto archives-bound tape; how Boston College pinky-swore confidentiality and then left Moloney out in the wind; how the “secret” tapes will ultimately be reviewed by the First Circuit in camera because SCOTUS denied cert — all make it a crummy test case for archivists’ privilege anyway, so it’s pointless to go on.

A couple things about the mode of delivery of George’s message though: First, having been dissed by the grownups at SAA, who remember the 1980s, who remember that the notion that no court can compel an archives to disgorge documents ever was first asserted by the FBI to conceal the fact that it had spied on Frank Wilkinson, an American leftist, she has turned to the Students and New Archives Professionals, who were perhaps born in the 1980s. The tactic here is to redraw the bounds of debate by addressing herself to an audience of innocents.

Second, by talking about doctors and lawyers, George addresses herself to archivists’ ancient professional insecurity — we’re a discipline dominated by women, ergo paid less than “men’s” work like doctoring and lawyering; our “science” for about a hundred years has consisted of advice about filing; our “literature” for about thirty years has consisted of complaints that there is no serious archives literature; USFW — and that’s a deep nerve to pluck. Saying that once you establish archivists’ privilege, archivists will finally get the respect they deserve is equivalent to when that one guy took that other guy to the top of an exceeding high mountain and promised him things.

Third, it’s disingenuous to claim that establishing archivists’ power over documents — finally guaranteeing that we have forever the hermeneutic power and the right — makes history more free. Actual dissidents, the world over, are or for Chrissakes should be more worried about being trampled underfoot today than about being misunderstood tomorrow. Let’s talk later about the struggle. It’s important to remember that grand juries and states’ attorneys are also part of the society whose history we’re here to preserve. Archivists don’t get to tell society that our compelling interests trump its compelling interests. Archivists’ privilege, by George’s account, is the only thing guaranteeing that we’ll get donations of records made by dissidents. I dispute that. But on this we all agree: The privilege would make archivists into rulers, turning our work from serving society to serving the archons.

President Nixon, H.R. Haldeman, and military aide boarding Marine One, 07/16/1972, NARA identifier #194438

President Nixon, H.R. Haldeman, and military aide boarding Marine One, 07/16/1972, NARA identifier #194438

Ed Moloney and Chris Bray have stepped in to pull this blog back from the brink of libel, for which I thank them. I’ve put a timestamped strikethrough on the offending sentence.

Bray points out that A Secret History of the IRA was not, as I wrote in all caps here, based on the oral histories in the Belfast project’s collection. Voices from the Grave used interviews with Brendan Hughes and David Ervine, who are in the collection; the embargo on those interviews ended with the men’s deaths, and those materials are open to “any researcher.”

Here’s every hit for “interview” in Secret History.

Here’s every hit for “interview” in Grave

The interviews footnoted in Secret History look to be entirely in Moloney’s personal collection, all conducted between 1998 and November 2000. Only one appears to have come from another collection, Anthony McIntyre’s May 2000 “Interview with former Belfast IRA member (B),” in an embargoed collection at Linen Hall Library. This blog does not dispute Moloney’s statement that the work for the first book was all done by the “summer of 2001,” which leaves only a little overlap with the BC start date of “early 2001.” It seems odd that the interviews for Secret History would have nothing to do with the BC project, given the proximity, but if the man who did the interviewing says that there was a firewall between his interviews as a journalist and his interviews as an archivist, this blog has to take him at his word.

It’s important to note that since virtually all the interviews in Secret History are with a reporter’s confidential sources, and since neither the Belfast project nor Linen Hall has public finding aids, there’s no way for this blog to confirm that none of the interviewees for Secret History ended up giving oral histories for the Belfast project. Links to public finding aids to these collections are welcome; please post them below.

It’s also important to note that, unless I’m terribly mistaken, I’ve never misspelled Ed Moloney’s name. Perhaps he has me confused with these folks, who seem to think he’s a Maloney. And, not to deepen the flame war, but I did stick your name into Amazon; your book was linked in the original post. Sorry you didn’t see it.

Ultimately, I think Moloney and Bray and McIntyre and this blog are in the grand scheme all on the same side. I oppose archivists’ privilege in no small part because the first body to assert the privilege in the United States was the FBI; having used all their FOIA exemptions to give Frank Wilkinson a 95% redacted version of his own file, the spooks invented “archival privilege” out of whole cloth, and the spooks lost. Archivists in this country thought the topic so skunked that it sat dormant for twenty years. The biggest archives in this country is NARA, and establishing archivists’ privilege means wrapping NARA’s collections in restrictions which are bound by their nature to be opaque, arbitrarily-enforced, and because of how privilege works in the US, permanent. It’s the FOIA exemption to end all FOIA exemptions. It’s Christmas for the secret police.

Finally, it’s worth remembering why we call it truth and reconciliation. There can’t be reconciliation without truth.

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.

Curating some lobster, NARA identifier #548767.

Curating some lobster, NARA identifier #548767.

You would think that the law librarians at Georgetown would be able to clarify some of the muddled thinking about archives certain archivists have been doing lately. Or whatever:

Many archivists have varying perspectives on this issue. Archivists have a professional duty to curate many types of materials, some of which contain confidential information. More thought provoking is the potential outcome of this case and how it will effect what people will be willing to archive in the future, inevitably impacting what will be remembered for generations to come.

First of all, commonly-applied restrictions on access protect donors of archival material from acccidental discovery of any crime carrying a statute of limitation. Our most frequently-used period of restriction is 50 years. Legal documents, case files, attorneys’ work product and so forth are all commonly closed for 75 years. Attorney-client privilege holds that these should be closed in perpetuity but that’s something you have to take up with William Rehnquist. In short, Ed Moloney et cie. aren’t asking archives to do a better job protecting archival material from discovery by researchers. Rational actors should already be convinced by current practice that we’re going to keep mere snoops out of their stuff for a long time. Without archivists’ privilege, donors’ privacy is already secure.

But that’s not the issue. Moloney used the 1990s oral histories to WRITE A BOOK CALLED I KID YOU NOT A Secret History of the IRA. As I’ve tried to explain before, what the Belfast Project wants is access for researchers who are friends of the institution, and no access for “hostile” inquirers. Where publication fits into that scheme Moloney neither knows nor cares. So long as our researchers get to have it both ways — writing books from “privileged” material, and then asserting privilege once courts get inquisitive — in his mind and in Boston College’s, everything is fine.

Anyway, if you disagree, you have until tomorrow to send amicus curiae briefs to John Roberts.

And that’s all boring. What’s more “thought-provoking” is the notion that

Archivists have a professional duty to curate many types of materials, some of which contain confidential information.

which in a sense is wrong and in a sense is right. In the current sense of applying selectivity and taste to something, we don’t curate at all. Just ask Terry Cook. The last twenty years have been about appraising everyone in, because archivists now see appraisal and selection as truncating discourse and establishing one body’s power over another. Which, you know, I’m not unsympathetic to, though I think such an interpretation of our work relies overmuch on early Foucault and ignores infrapower, and just a little bit condescends to the oppressed, who if you read Rancière’s La Nuit des Prolétaires have been busily writing themselves into history with or without archives’ presuming to speak for them since at least the Bourbon Restoration.

The Latin root of curate means a lot of things apart from the obvious “care,” and “cure”; also “heal,” “arrange,” and “govern,” and more or less, “fetch.” These are good verbs to guide archivists. We can acknowledge that arrangement preserves access and that derangement obstructs it. We can see that curation governs collections, regulating who speaks and who can’t, so we’d better have a good idea of what we’re doing governing, and we’d better make sure it’s us and not dead donors and their unaccountable heirs doing the governing instead. Doesn’t fetching records for researchers heal the breach between “creators” and “consumers” of history? Thinking through these relationships, we can see archival practice as an unbroken stream from government, to arrangement, to care and feeding, to fetching, with really no room in there for abstract notions of privilege and property.

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.

Nixon standing with Lyndon Johson outside the LBJ Library in Austin , Texas, 05/22/1971. NARA identifier #194358

Nixon standing with Lyndon Johson outside the LBJ Library in Austin , Texas, 05/22/1971. NARA identifier #194358

Archival privilege is an idea so totally poisonous to the core work of archivists that I have to write more, if only to ferret out anyone who’s in favor of it.

Privileged communication, things you say to another person in confidence which a court cannot ever hear, flows from the Fifth Amendment’s protections of individual life and livelihood and its proscription of self-incrimination. Wives and husbands are one body, so you can’t be compelled to incriminate your spouse. You can’t get the unvarnished medical advice you need to preserve your body unless you talk to your doctor in confidence. You can’t get to the root of the psychological illness that’s killing you unless your therapy is confidential. You can’t secure the legal advice that will keep you out of jail if lawyers could be compelled to incriminate you. And you can’t reasonably be expected to have forthright deliberations in the Oval Office, the kinds of chats wherein geopolitical strategies designed to preserve the lives and freedoms of billions of people are hatched if you think your confabs will be leaked.

In the case at hand, lawyers want to see if Irish partisans “confessed” to crimes in a series of oral histories. Communication here had no therapeutic purpose, it wasn’t initiated by the partisans’ seeking counsel, legal, spiritual or otherwise, and revealing the conversations won’t start World War Three. You could argue, as John Kerry did, that opening the oral histories in discovery would, in fact, cause the Irish equivalent of World War Three, but that would make you look stupid because the Good Friday accords have held for 15 years despite harsher shocks than this.

What archival privilege amounts to in this case is archivists saying: Look, we know our confidence doesn’t ensure due process, or make people sane, or safeguard their health, or preserve national security. It’s just that we promised we wouldn’t tell anybody about all the torture and stuff. And these are our friends, and we’d really like to not disappoint them.

And seriously, privilege is forever. Swidler says so. And if either party can assert archival privilege, archivists are suddenly faced with the prospect of maintaining physical and intellectual access to information no one will ever see.

The fundamental misunderstanding is about history. Kerry’s and Boston College’s arguments are based on the idea that history is something that has passed on. Oh that, that’s ancient history. For the rest of us, the whole point of preserving primary-source documents is precisely to upset current events. History is a debt that can never be repaid. It is passed along, taught from generation to generation. It doesn’t stop running. It roots down the mountain, it overturns it overturns it overturns