On Off the Record, former SAA President Jackie Dooley published “Should a legal right to “archival privilege” be established?” – written by Frank Boles, another former SAA President and chair of SAA’s Government Affairs Working Group, back in 2013. In light of the recent Belfast Project controversy, wherein the subpoenaing of oral histories to use as evidence in a murder investigation roused the old “archival privilege” debate, Boles (in line with SAA’s official statement on the incident) opts not to commit to any particular stance. Rather, he affirms the professional and legal context surrounding the issue – intra-archival acrimony and the currently unrecognized right to confidentiality for scholars and archivists. Boles encourages discussion so we might someday arrive at a consensus.
Spouse, psychiatrist, lawyer, priest – under “privileged communication,” these are the protected relationships within which one may divulge anything. Comparatively, Randall Jimerson’s published SAA Presidential Address “Embracing the Power of Archives” (2006), discusses the archive as a site of power – a temple, a prison, a restaurant. I find the former two to be most relevant in the case of “archival privilege.” If archivists are to be counted among lawyers and priests as those who have the power to withhold (protect?) information, then the archive really does become a nexus for “authority,” “veneration,” and “control” of materials. But how can archives embody the contradiction of the temple and prison – open and closed, welcoming and impenetrable – when confidentiality risks superseding public well-being? Confidentiality of the (alleged) aggressor (e.g., a murderer) is not the same as confidentiality of the victim (e.g., someone who may be outed if their personal papers are circulated).
In the SAA blog post, Boles asks, “Is history always more important than justice?,” but I’ve always believed history and justice to be inextricably linked. Justice may be subjective – worthy of debate and speculative outcome – but isn’t history, too? “The public’s right to every man’s evidence” is a contested ideal itself (for journalists and witnesses, as well as archivists). History and historiography rely on testimony, and while tenuous privacy/confidentiality rights discourage revelation, what use is information if it’s inaccessible, especially when lives are at stake? Perhaps, in the case of archives at least, Justice Felix Frankfurter’s dissenting opinion in the Supreme Court Case 1943 United States v. Monia applies: “Duty, not privilege, lies at the core of this problem – the duty to testify, and not the privilege that relieves of such duty” (316).