Ethical Questions in the Archives

In this blog post, I am examining the following ethical dilemma:

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?

 

Before I begin discussing my thought process, I want to give a structure for this hypothetical situation. The legal considerations are from a United States viewpoint and involve U.S. citizens only. Other countries have privacy and copyright laws that could lead to a different outcome (see, for example, the GDPR). I’m also assuming that we’re working within “normal” constraints - this isn’t a politician with mafia ties who will put a hit out on my family if these documents are made public.

According to the Society of American Archivists (2020), “Archivists should promote and provide the widest possible accessibility of materials, while respecting legal and ethical access restrictions including public statutes, cultural protections, donor contracts, and privacy requirements” (“Access and Use”). Although the SAA expands on privacy concerns in archives,it does not give a cut-and-dry answer to this scenario. Rather, it discusses different aspects of privacy that should be kept in mind when coming to a decision, such as the fact that both “legal and cultural dimensions” exist to the question (“Privacy”). There is specific guidance as to what an archive should do with a privacy decision - decisions should be made transparently and documented.

Although there are no definitive guides for how to handle a scenario such as this, there are many case studies available in the literature. The SAA includes in their list one that regards the decision to publicly archive letters which revealed an affair between President Warren G. Harding and Carrie Fulton Phillips. Although this scenario is different in that Harding was deceased when the letters were made public, it highlights the extreme financial, professional and legal risks one can take when publicizing sensitive documents (Pyatt, 2015). LeClere (2019) discusses how archives must make different decisions based on whether or not materials are digitized, “craft[ing] boundaries and policies around online access [...] which ranged from mildly cautious to fiercely open” (p. 122).

There are legal ramifications to making private documents public. However, because the documents are related to a public official, privacy considerations are different than they would be for a private citizen. In the United States, public figures are considered to have relinquished their right to privacy - many court cases, including Supreme Court rulings, have weighed the right to free speech and free media as more important than public officials’ privacy (Yanisky-Ravid and Lahav, 2017, p. 993). From a risk management perspective, having a documented privacy policy which is applied to all archival materials can help an archives’ legal case in the situation where they are sued. In fact, treating similar collections differently on the basis of one’s political (or other) status could potentially open up the archives to more risk.
 

In the absence of a donor agreement or privacy policy that contradicts this, my action would be to continue to arrange and describe the collection. Underlying all my decisions is the idea that archivists should “err on the side of access” (Lawrimore, 2021, para. 9). The archivist should not be in a position of judging the content of materials - truly anything could be embarrassing in some circumstances. In addition, when you consider that archivists tend to work on the collection, not item, level, it’s only by chance this information was discovered.

This decision is specific to this scenario. There are other, very similar circumstances where suppressing the information would be the ethical response, particularly if the documents in question were about a private citizen. For example, Chenier (2015) gives the example of archiving oral histories that out living people: “For example, while it might be okay to be gay today, tomorrow might bring new problems and challenges, as demonstrated by Russian historians of sexuality who are currently having to transition into new areas of research” (p. 138). In addition, consent may have been freely given at the time of the document’s creation or archiving, but may change as technology develops, such as in when digitizing pre-internet archives (Chenier, 2015; LeClere, 2019).

There are other factors that could come into play, and I have several questions I would want answered before I would make a decision. These questions include the following:

• Is there a donor agreement with guidance for how these documents should be treated? For example, are these materials donated with the expectation they will be available for in-person research only and not online? Does it require an embargo, where the documents are made available to researchers only for a specified time before being made available to the general public?
• Do these documents have specific legal protections? For example, are they protected by FERPA or HIPAA? Conversely, does the archives in question have a legal requirement to make documents public and discoverable?
• What is the nature of the document? Did the donor have legal ownership of the material? Although the decision may end up being the same in each situation, the archivist may want to consider treating private, explicit letters differently than a copy of a forgotten speech.
• Does the archives have a written privacy policy? This policy would ideally contain instructions on how to manage these situations, including how to document ones’ decision-making process. It would also include a take-down policy, stating who can request that information is restricted and why, as well as identifying who responds to those requests.
• What discoverability will these items have? Are they freely searchable and findable online, or do readers need to ask permission for access?
• What is the archives’ acceptable level of risk? Historically has this archives been more or less conservative in their interpretation of privacy regulations?

In conclusion, although my decision in this scenario is that the materials should still be described, in the end, “it depends.” Although ease of access is prioritized, there are other ramifications in terms of legal risk and ethical needs. Scenarios such as this are why the SAA does not have an overarching privacy policy, but rather a set of guidelines which archivists should consider as they make ethical decisions for their collections.

References

1. Chenier, E. (2015, May). “Privacy anxieties: Ethics versus activism in archiving lesbian oral history online.” Radical History Review, (122), 129-141. doi:10.1215/01636545-2849576
2. Lawrimore, E. (2021). “Unit 6-C: Privacy Issues.”
3. LeClere, E. (2019). The ethics of building digital archives of the recent past: A thematic analysis of archivists’ decision-making in digitization work. (Publication No. 27671752). [Doctoral Dissertation, University of Wisconsin-Madison]. ProQuest Dissertations Publishing.
4. Pyatt, T. D. (2015). The Harding Affair letters: How one archivist took every measure possible to ensure their preservation. Retrieved from https://www2.archivists.org/sites/all/files/HardingAffairLetters_CEPC-CaseStudy5.pdf.
   
5. Society of American Archivists. (2020). “SAA Core Values Statement and Code of Ethics.” Retrieved from https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics.
6. Yanisky-Ravid, S., & Lahav, B. Z. (2017). Public interest vs. private lives - affording public figures privacy in the digital era: the three principle filtering model. University of Pennsylvania Journal of Constitutional Law, 19(4), 975-1014. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1633&context=jcl