Ethical Scenario:
In working on the arrangement and description of a collection, you come across a piece of information that is of a highly-sensitive nature and could change the perception of a major (still living) political figure. What should you do?
Due to the degree of fame of the person involved, handling of this situation could feel uncomfortable for all parties involved. Since “major” political figures tend to carry a significant amount of power and authority, the idea of somehow exposing them can be intimidating. Fear of repercussions could lead to burying or destroying the material. Institutions whose funding comes from the government may hesitate to do anything that jeopardizes those resources. On the other hand, some may be tempted to share the information with media and get their 15 minutes of fame.
For any cultural heritage institution, there is a fine line to walk when it comes to the rights of access of information and the right of personal privacy. The Society of American Archivists (SAA) says the purpose of archivists is to “select, preserve, and make available primary sources that document the activities of institutions, communities, and individuals. These archival sources can be used for many purposes, including providing legal and administrative evidence, protecting the rights of individuals and organizations…” This leaves archivists with a deep social responsibility to be good stewards of the cultural and historical information of its communities.
This responsibility is born from an obligation of accountability. Not just of the archivist to the collection, donors, repository, and community, but to society as a whole, particularly where the government is concerned.
Public leaders must be held accountable both to the judgment of history and future generations as well as to citizens in the ongoing governance of society. Access to the records of public officials and agencies provides a means of holding them accountable both to public citizens and to the judgment of future generations… accountability through archival documentation assists in protecting the rights and interests of…citizens. (SAA)
A large part of that stewardship is providing access to collections. Archivists must seek to support and promote access of materials in the broadest way possible, while complying with any mandatory restrictions. These restrictions may take the form of “public statute, donor contract, business/institutional privacy, or personal privacy… In all questions of access, archivists seek practical solutions that balance competing principles and interests” (SAA).
Ultimately, properly handling the situation above will require the archivist to lean heavily on firmly established guidelines. Those set forth in state and federal laws, the SAA Core Values Statement and Code of Ethics, and the parent institution’s guidelines.
(Moving forward in this case study, we will make two assumptions. One, there are not stipulations within the donor’s agreement or deed of gift that would require sealing the collection as a whole or in part. Two, authenticity of the information presented has been established.)
The Law
Perhaps the most unmoving of these considerations are state and federal laws. They are more firm in their views and can come at a more costly price if broken. Depending on the nature of the information found, there could be major legal obligations to consider.
Copyright
If the information was private or never published, then the U.S. Copyright Terms and Public Domain has definite implications. Unpublished works, in general, cannot be shared until 70 years after the author has died (for 2020, that is any authors who died before 1950) (Hirtle, 2019). If the work was anonymous or corporate authorship, that date moves to 120 years from creation (currently 1900) (Hirtle, 2019). So, depending on how the information was created, it may not be able to be immediately included with the collection regardless.
FOIA
Since the subject in question is a political figure, if the records were governmental in nature, it would be necessary to confirm they do not fall under the Freedom of Information Act. Both federal government and individual states have laws surrounding the freedom of citizens to obtain information created by the government. Careful understanding of current laws are deeply important. Were this information to fall into the scope of FOIA, the law would require it be made available.
Criminal Evidence
A bigger question of law perhaps is the legality of the information found. Does it show evidence of a crime? Were others caused injury or loss? If the answers are yes, the information should be passed along to the proper authorities.
According to the Legal Information Institute of Cornell Law School, under 18 U.S. Code § 4. Misprision of felony,
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
(June 25, 1948, ch. 645, 62 Stat. 684; Pub. L. 103–322, title XXXIII, § 330016(1)(G), Sept. 13, 1994, 108 Stat. 2147.)
Recognizing the legality of the information is important to ensure no laws are broken by the archivist or parent institution through their handling of the information.
Privacy
The right to privacy is not expressly laid out in any legislation, however it is authorized by law. Officially, the U.S. Constitution does not explicitly proclaim the right to privacy. Through the years, the Supreme Court has established privacy as a right to citizens through multiple case judgements. “The Supreme Court has said that several of the amendments create this right. One of the amendments is the Fourth Amendment... Other amendments protect our freedom to make certain decisions about our bodies and our private lives without interference” (ACLU).
Globally, activists have been seeking to ensure privacy on an international scale. According to the American Civil Liberties Union, “Article 17 of the International Covenant on Civil and Political Rights protects everyone from arbitrary or unlawful interferences with their “privacy, family, home or correspondence.” Considering that many collections are comprised of private papers, such as correspondence, this right must remain at the forefront of the archivist’s work.
In its Code of Ethics, the SAA recognizes this right and encourages archival institutions to
establish procedures and policies to protect the interests of the donors, individuals, groups, and institutions whose public and private lives and activities are recorded in their holdings. As appropriate, archivists place access restrictions on collections to ensure that privacy and confidentiality are maintained, particularly for individuals and groups who have no voice or role in collections’ creation, retention, or public use.
This core value of privacy must be upheld to the best of the archivist and institution’s abilities. Even away from legal repercussions, should an archivist make a habit of allowing private information of living individuals be made public, it would hurt the reputation of the institution and limit donors’ willingness to contribute.
SAA Core Values Statement and Code of Ethics
While the SAA’s Core Values Statement and Code of Ethics do not have hard lines and definitive answers, they do provide moral and ethical guides. It allows the archivist to test the facts they have against what is known to be good practice.
SAA Code of Ethics discusses professional judgement of archivists when it comes to the accession, care, and dissemination of material.
Archivists exercise professional judgment in appraising, acquiring, and processing materials to ensure the preservation, authenticity, diversity, and lasting cultural and historical value of their collections. Archivists should carefully document their collections-related decisions and activities to make their role in the selection, retention, or creation of the historical record transparent to their institutions, donors, and users. Archivists are encouraged to consult with colleagues, relevant professionals, and communities of interest to ensure that diverse perspectives inform their actions and decisions.
This core value encourages aboveboard behavior through all stages of the archival process. In utilizing this approach, the archivist should not have to make these difficult decisions alone. SAA encourages consulting with other parties abut the resources in question. SAA also encourages transparency in the handling of information. This means that as long as the archivist is following the standards and policies in place, they should have no repercussions for how information was handled.
Just as good judgement is encouraged, so too is professional relationships. Ethically, the SAA states, archivists, “in their professional relationships with donors, records creators, users, and colleagues, archivists are honest, fair, collegial, and equitable.” Even though no stipulations were listed in the donor contract, does not mean all information included is a public free-for-all. Any concerns should not be hidden from the parent institution or the donor. Instead, remaining transparent about information found, lays the foundation for a long and trusting relationship between entities.
Parent Institution Guidelines
Perhaps most influential in the archivist’s handling of records is the parent institutions own rules and guidelines. The reason for this is a simple one, the institution signs the archivist’s paycheck. No one wants to lose their job. Institutional guidelines vary from repository to repository. This level of guidance is drawn up by those directly involved at the repository to ensure each collection is processed and cared for in a cohesive manner. It allows staff to all work under the same process and standards, cutting down on confusion and inequalities. It also ensures collections are accepted and information included with conformity, removing opportunities for unfair inclusion/exclusion and bias.
These institutional archival guidelines are not created solely for the good of the institution. Instead, they are created by the archivists’ themselves to provide guidance for their own work. “Archivists formulate and disseminate institutional access policies along with strategies that encourage responsible use” (SAA). This means they work in partnership “with donors and originating agencies to ensure that any restrictions are appropriate, well-documented, and equitable enforced. When repositories require restrictions to protect confidential and proprietary information, such restrictions should be implemented in an impartial manner.”
Archivists undergo training and take a great deal of care to become good stewards of our collective past. They achieve this through “following best practices in developing facilities service standards, collection development policies, user service benchmarks, and other performance metrics” (SAA).
Conclusion
It would be unethical to let someone’s views, power, or standing in the community (or country) sway how records are handled and released. The fact that it is a “major political figure” should not hold any bearing on how the situation is handled. Instead, the archivist should abide by the law and follow the field’s best practices to maintain a professional view of the situation.
The SAA is very straight forward in its designation of archives as information stewards to the collective history and memory of society. Archivists bear the burden of caring for primary sources that will “enable people to examine the past and thereby gain insights into the human experience… provide surrogates for human memory, both individually and collectively and, when properly maintained, they serve as evidence against which individual and social memory can be tested. Archivists preserve such primary sources to enable us to better comprehend the past, understand the present, and prepare for the future” (SAA).
In the end, should all legal and ethical guidelines be met, I believe the archivist should include the information as much as possible. This does not include advertising said information and pointing it out to the press and/or users. That too would show poor judgement and a lack of impartiality to the subject involved. Instead, professional decorum and handling should be maintained; authenticity, accuracy and context should be provided; as much access as possible granted; and the collection’s integrity preserved.
References
American Civil Liberties Union (ACLU). (N.D.). Students: Your Right To Privacy. ACLU.org.
American Civil Liberties Union (ACLU). (N.D.). The Human Right to Privacy in the Digital Age. ACLU.org.
Hirtle, Peter B. (January/February 1999). "Recent Changes To The Copyright Law: Copyright Term Extension." Archival Outlook. Copyright Term and the Public Domain in the United States, Cornell Copyright Information Center, updated 1 January 2019. Retrieved April 10, 2020, from https://copyright.cornell.edu/publicdomain.
Peterson, G.M. & Peterson, T.H. (1985). Archives and Manuscripts: Law. SAA Basic Manual Series, Chicago. Retrieved April 11, 2020, from http://files.archivists.org/pubs/free/Archives&Mss-Law.pdf.
The Society of American Archivists. (2011). SAA Core Values Statement. Retrieved April 10, 2020, from https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics.
The Society of American Archivists. (2012). SAA Code of Ethics. Retrieved April 10, 2020, from https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics.
Stan, L. (2010). Archival Records as Evidence. Sage Publications, Inc.
The United States Copyright Office. (December 2016). Circular 92: Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. Washington, D.C. Retrieved April 10, 2020, from https://www.copyright.gov/title17/title17.pdf.
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