Owners and custodians of archives collections often find themselves on the horns of a dilemma: the collections exist for researchers to use, yet they may contain information that should remain private. How then, does an archivist resolve this conflict so that the interests of the repository, the records creators, and the researcher are legally and appropriately served?
Respecting individual privacy while also granting reasonable access can be difficult. For example, imagine an archivist processing the manuscript collection of a prominent medical researcher. The collection might well include patient records, letters of reference, grant applications, and letters from potential patients. While laws exist to curtail access to some of the material, these same items may represent valuable information for future researchers. For instance, how should the archivist handle a letter requesting medical advice sent to the researcher from a now-famous movie star?
There are numerous laws that govern the privacy of information, including Title II of the Health Insurance Portability and Accountability Act (HIPAA), which protects medical records that contain health information where individuals can be identified. Legal concerns surrounding privacy in U.S. archives also revolve around the Family Educational Records Protection Act (FERPA), the 1974 Privacy Act, and others. The Society of American Archivists developed a Code of Ethics to guide archivists’ decision-making. The Code requires archivists to acknowledge that privacy is sanctioned by law and that archivists should “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.”
However, the above example of a famous person asking for medical advice is a grey area. Does the request constitute a “medical record’? If not, does it require privacy protection for other reasons? Legal and ethical requirements can be met in a number of ways with the ultimate decision oft en left to the processing archivist. In every instance requiring a judgment call, the archivist must consider legal requirements – with the aid of legal counsel if necessary – ethical guidelines, donor agreements, and the organization’s mission to arrive at the best solution. Among the options available are: making the letter public; restricting the letter, thereby deferring access to the document for a specified period – usually once the donor or subject of the record has died; redacting those portions of the letter that reveal personal information; and, although unlikely in this scenario, deciding not to preserve the item in the archive at all.
One way that archivists make consistent decisions about privacy is to include a flow chart in their processing manual. Such a chart details how sensitive materials should be processed, whether they should be restricted, and if so, for how long. The chart can also describe the different types of materials that are typically included in the collections and whether each type should have physical access restricted, and how long any restriction should be. As with any archival policy, the flow chart and processing manual should be developed and approved through appropriate organizational channels.
Archivists know that there may be no one right answer, or there may be more than one right answer, to protecting privacy in archives. At History Associates, we serve a wide variety of clients and are mindful of the fact that each organization has its own concerns. Our archivists routinely work with clients to explore the options within the context of legal requirements, professional standards, and the typical approaches used by similar organizations to arrive at solutions that are best for them.
Originally published in our HAIpoints newsletter. View newsletter page.
