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The Ethics of Access 1

The Ethics of Access:

A Look at Various Issues Regarding Archival Records

Angelina Merritt

University of Arizona


The Ethics of Access: A Look at Various Issues Regarding Archival Records

Elena Danielson (1989) succinctly stated a truth when she starts off her essay on the

ethics of access by stating that “the ethics of access is a thorny problem” (p. 53). According to

article six of the Society of American Archivists (SAA) Code of Ethics, archivists have two

occasionally conflicting responsibilities. First, archivists are responsible for “promoting open and

equitable access…without discrimination or preferential treatment” and they also “may place

restrictions on access for the protection of privacy or confidentiality of information in the

records” (Society of American Archivists, 2005). At first glance the words “open” and

“restrictions” seem at odds with one another. In truth, this is often the case. But before

discussing why open access and restricted access are both equally a part of an archivists

responsibilities, a clear definition for ‘access’ needs to be established. A Glossary for Archivists,

Manuscript Curators, and Records Managers defines access as the “right, opportunity, or means

of finding, using, or approaching documents and/or information” (as cited in Hunter, 2003, p.

207). If archivists then are to provide “open and equitable access” (SAA, 2005) then they are

giving the right to all people to find and use records at the same level. Conversely, if archivists

are placing restrictions on records because of privacy or confidentiality issues, then the access is

not open to all and, therefore, is not equal though most archivists strive for equity. This paper

will first discuss free access traditions and then move into a discussion of various access

concepts and issues that are often dealt with by archivists based on Hunter’s concepts and

categories (2003, p. 210, p. 213). To conclude, some key points will be highlighted to show that

while open access is ideal for freedom of information, it is not always the best solution with

some types of collections.

Free Access Traditions


In our twenty-first century industrialized society, many people expect access to any

information they want or need; however, this has not always been the case. In fact, until the end

of the 18th century and the French Revolution, many European archives were controlled by the

government or churches and the average citizen did not often seek out the information they

contained. The political beliefs that developed and strengthened during the Revolution were

followed by a belief that the archives were the property of the citizens. Then, the 19th century

saw the concept of free access strengthen and spread throughout the western world, with England

establishing archival law and centralization in 1838, and the United States entering the picture

with the creation of the National Archives in 1934. (Hunter, 2003; Valge & Kibal, 2007)

At that time like now, the concept of free access did not include private archives or

National Archives. It was typical for the owner of private papers to need to grant permission for

access and National Archives would often have collections that were sealed for up to 100 years.

After World War II, the concept of the life cycle – identify, preserve, and provide access – which

spread throughout the United States promoted the creation of different restrictions on access.

Later, as the importance of individuality grew during the 1980s, privacy rights also became more

important. (Valge & Kibal, 2007) Today, the different types of restrictions that have evolved and

privacy rights often come head-to-head with the concepts of open and equal access.

Access Concepts and Issues

There are four concepts that archivists deal with when determining access: equal access,

open or ‘full’ access, the right to know versus the right to privacy, and restrictions (Hunter, 2003,

p. 210). Each of these will be dealt with separately in order to help archivists make decisions that

adequately meet the needs of researchers, collection owners/donors, and even third parties. Since

society generally expects open and equal access, archivists must balance the interests of all


parties (Danielson, 1989, p. 59). Until archivists are comfortable with what each of the following

concepts really entails, it can be difficult to make decisions regarding access that will fulfill both

the injunction to provide open and equitable access and the need to protect privacy and

confidentiality.

Equal Access

A statement from the SAA and the American Library Association says that “it is the

responsibility of a library, archives or manuscript repository to make available original research

materials in its possession on equal terms of access” (as cited in Case & Xu, 1994, p.136). This,

of course, is the ideal situation and yet it is not always what is put into practice. Even the SAA

code uses the word equitable rather than equal which, according to Danielson, allows

repositories to determine the clientele who will receive primary consideration based on type of

repository or which clients will need more help (1997, p. 111). Unfortunately, this does

occasionally result in scholastic monopolies such as with the Dead Sea Scrolls (Case & Xu, p.

132; Hodson, 1993, p.692) and preferential treatment for certain types of clientele such as

professional researchers (Moran & Taylor, 2003).

From 1947 until the 1980s, the Dead Sea Scrolls were under the close aegis of first the

Jordanian government and then Israel’s Antiquities Authority. A small group of scholars had

exclusive publishing rights to the scrolls and no one else was allowed access (Hodson, 1993, p.

692). So for over forty years, to the dismay of many, the approved scholars held a monopoly

over the scrolls while only managing to translate and interpret about quarter of their contents

(Case & Xu, 1994, p. 130). Then, in the early 1980s, a philanthropist named Elizabeth Bechtel

was granted permission to have the scrolls photographed for preservation purposes. Two sets of

negatives were created and the master set was placed in the Huntington Library vault (Hodson,


1993, p. 692). In 1991, when the Huntington Library announced that it would open access

without restriction to the negatives, the decision was based on the principle of intellectual

freedom and the library’s own policy of open access (Hodson, p. 693). After a brief period where

the Antiquities Authority threatened legal action and then backed off because of media and

public opinion, the Antiquities Authority’s scholarly monopoly ended so that all researchers

might have equal access to the scrolls.

Moran and Taylor (2003) discuss another issue surrounding equal access – professional

researchers that receive preferential treatment. There is a prevailing idea in some archives that

researchers in academia deserve more attention than other users such as family historians. Mark

Stevens in 1999 stated that archives are often pictured as being “of the ivory tower variety…

most people see us as locked away, rather than as an open door” (as cited in Moran & Taylor, p.

62). The SAA code even perpetuates this idea by providing for ‘equitable’ access rather than

equal access. Since repositories often are limited in resources, staff will use ‘equitable’ access to

determine their “primary clientele” (Danielson, 1997, p. 111) rather than trying to provide the

same service to everyone. Danielson (1997) even asserts that since requests require differing

levels of assistance, they should not be treated as equal (p. 109). However, such discrimination

between users can lead to legal issues because the public believes that everyone has an equal

right to information. This is a tricky area to navigate, so archivists must be careful to determine

exactly what users require and try to meet their needs without giving preferential treatment to

any one group of users.

In contrast to scholastic monopolies and other preferential treatment, the National

Council on Archives has stated that archives are important for everyone and archivists need to

make certain that access is not hindered regardless of the purpose or user. Additionally, the


Council of Europe asserts that “access to public archives is a right… [and] this right should apply

to all users regardless of their nationality, status or function” (as cited in Moran & Taylor, 2003,

p. 62). With this in mind, public repositories should be working diligently to assure that

scholastic monopolies continue to be dismantled and all users are given fair and impartial

assistance in their research without regard to why they are conducting their research.

Full Access

Besides equal access, it is important to consider how much access is available to the

collections held in archives. According to Hunter (2003), archivists must try to help researchers

by providing full access to all non-restricted materials. This practice is supported by the 1995

ALA Code of Ethics preamble and first article: “We have a special obligation to ensure the free

flow of information and ideas,” and “We provide the highest level of service to all library users”

(as cited in Danielson, 1997). Unfortunately, the ideals exhorted by ALA are becoming more

difficult to achieve as collections grow and repositories move to a ‘more product, less process’

policy. Archivists can direct researchers to some collections but without comprehensive finding

aids for all collections, material can be unknowingly overlooked. (Hunter, p. 211). Likewise, if

collections contain records in languages in which the archivists are not proficient, collections can

be accessed by researchers but the archivists will have difficulty in providing connections to

other collections. To illustrate, at the University of Arizona Special Collections there is a

collection of sermons that are actually in a Native American language that archivists there do not

speak and understand. The archivists are able to provide the boxes of records for researchers, but

researchers must then go step by step through the sermons themselves in order to find what they

require (if they speak and understand the language). Fortunately, one researcher has been able to

assist the Special Collections by providing more detailed descriptions of the records which


archivists can use to update their finding aid (Erika Castano, personal communication, June 18,

2009). This then opens the collection to further access by other researchers since archivists can

now direct users to specific sermons.

The Right to Know v. The Right to Privacy

Providing equal and full access to all members of society is the ideal for archives and

other repositories; at the same time, this access is not always possible because privacy of

individuals must be protected. Archivists walk a tightrope trying to balance the right to know

against the right to privacy. In 1960, William Prosser proposed four types of privacy invasion:

“intrusion upon the individual’s seclusion or solitude, or … private affairs; public disclosure of

embarrassing or private facts…; [false] publicity…; and appropriation… of the individual’s

name or likeness” (as cited in Hodson, 2004, p. 195). Additionally, the SAA Code of Ethics

exhorts archivists to be aware of, and take care to protect, the privacy of people who are

represented in their collections (Society of American Archivists, 2005). This includes the donors’

families, friends, and other third parties that are mentioned in the collections. So two issues come

to the forefront of many research requests: 1) are the records free from any items which if used

by researchers could constitute privacy invasion, and 2) does the researcher have a right to

know?

While society does favor the right to know in regards to records in public archives (i.e.

government and business records), society also strongly supports the privacy of individuals. As a

result, archivists are advised to be careful with researchers seeking access to materials that may

contain sensitive material. For example, medical histories and genetic records (Boetzkes, 2001;

Clarke, 2003), psychiatric case files, and legal records such as adoptions (Nolan & Grace, 2003)

are usually kept confidential and researchers cannot access them without special permission.


Review boards are even created to determine if access should be provided to some researchers

(Danielson, 1997). Information about or correspondence from third parties may also come under

the heading of sensitive material if opening access could lead to any of Posser’s four types of

invasion. As a result, many private paper collections have restrictions on them to protect

individuals. These restrictions often end at the time of death of the donor but some restrictions

continue for thirty or more years after death to protect the third parties (Case & Xu, 1994;

Hodson, 2004).

In addition, many families try to keep restrictions in place in order to protect themselves

from what they feel might be damaging or embarrassing, though this can only be accomplished if

the families retain control of the collections. Furthermore, while privacy rights do not extend to

the dead, they do still apply for family members. Schwarz (1992) argues however that after an

individual has died, that person cannot be harmed by opening access to their records; therefore,

other interested parties should understand that the history recorded in the collections can only

benefit society and help it to grow (p. 189). In 1997, UNESCO further supported this statement

with the publication of its Quintana Report which deals with the collective and individual rights

to information about repressive regimes and those responsible for crimes against humanity

(Cook, 2006).

Restrictions

As mentioned above, some collections have restrictions placed upon them for privacy

reasons; however this is not the only reason or type of restriction that can be found in archival

repositories. Hunter describes three types of restrictions commonly found in archives: 1)

completely closed, 2) partially closed or restricted, and 3) preservation and security restrictions

(2003, p. 213).


Completely Closed or Sealed

According to Hunter (2003), completely closed or sealed collections are usually only

done so for a period of time. This might include unprocessed collections in some repositories in

order to protect privacy or copyright until the archivists are more certain about what is contained

within a collection (p. 213). As a general rule, archivists will not accept collections that are

meant to be sealed for undetermined lengths of time. The exception to this was when the

Huntington Library originally accepted the master negatives of the Dead Sea Scrolls. At that

time, it was unclear how long they would be restricted because of the scholastic monopoly of the

originals. However, it is likely that they remained closed at the library simply because very few

were aware that the negatives were housed there since the new director opened them only a year

after becoming director (Hodson, 1993).

Partially Closed or Restricted

As stated earlier, collections often have restrictions because of privacy concerns.

Generally, these restrictions are limited to set periods of time. Other restrictions are put in place

for national and state security (Valge & Kibal, 2007, p. 194). These restrictions are put in place

not only to protect donors but also to protect the records themselves. Donors may destroy records

in order to protect themselves and others. For example, James Joyce’s grandson destroyed family

letters in an attempt to protect family privacy. Unfortunately, scholars have protested this

destruction because these letters would have provided insight into other important authors

(Hodson, 2004, p. 204). Providing restrictions can provide an encouragement for donors to

donate and not destroy sensitive records that may benefit society (Danielson, 1989; Schwarz,

1992).


In regards to privacy, restrictions will vary from collection to collection and are often

dependent on a variety of circumstances. For instance, in addition to medical and legal records,

student files are legally protected for privacy purposes. According to the Family Educational

Rights and Privacy Act (FERPA), students and the parents of students under the age of 18 may

have access to students’ educational records but written permission is required from the students

or parents in order to disclose information to anyone that is not on a specified list of officials and

authorities (Chute & Swain, 2004, p. 213; U.S. Department of Education, 2009). This means that

a school district or university archive cannot grant access to the records unless an individual or

organization has a legitimate purpose for access such as being the student’s teacher, an

accrediting organization, or the juvenile justice system.

On the other hand, celebrities give up quite a bit of their right to privacy simply because

they are public figures. Much about their lives is visible in the media and so it is common for the

public to forget that some personal information is still considered private and should be treated

as such when they are living (Hodson, 2004, p. 202). Of course, as Schwarz (1992) argued, if an

individual is dead then privacy is no longer an issue. Nevertheless, families and other individuals

in control of collections continue to apply different restrictions on the records. Sigmund Freud’s

daughter only allowed access to people she trusted (Hodson, 1993; Panofsky & Moir, 2005).

Anne Braden refused the FBI access to her and her husband’s papers at the State Historical

Society of Wisconsin under a renewable restriction that required her written permission for

access (Cox, Middleton, Rohrbaugh, & Scholzen, 2009, p. 35; Miller, 1989, p.181). This

example is important because the courts determined that the Braden papers were not protected

from subpoena under her restriction clause; therefore, while we have privacy rights from other

individuals when dealing with our personal papers, we may not have such protection from the


government. And in yet another example, the Minnesota Historical Society closed one box of the

Whipple-Scandrett Papers containing love letters between two women, Rose Elizabeth Cleveland

and Evangeline Marrs Simpson, for many years (Schwarz, 1992, p. 184). When repositories are

accepting collections to which the donors insist on restrictions being applied, archivists need to

be careful to encourage donors to limit the length of the restriction to a minimum.

State and public security also require restrictions to be placed on some types of records.

In the United States, the Freedom of Information Act (FOIA) provides access to much of the

documentation regarding the government’s activities; however, not everything is available for

public access. Personal information about government employees, national security information,

and private information – information possessed by individuals – are all protected and not

available under FOIA (Hernon, 1988, pp. 7-8). National security, of course, requires restrictions

in order for the government to effectively put into play various operations and plans of action to

keep the nation protected. Yet, it could be argued that if too many safeguards are in place, it is

difficult to ascertain whether the government is working for the good of the people. Public access

to government documents does help keep a tight rein on some of the government’s actions.

Verne Harris (2003) stated that “activists need to be wary of the penchant for those who hold

power in democracies to hold up contract as a substitute for contest. Sometimes the powerful go

so far as to suggest that contestation unravels the contract. These, I want to suggest are

subterfuges, strategies for entrenching power. It is to confuse law, and right, with justice” (as

cited\in Cox, Middleton, Rohrbaugh, & Scholzen, 2009, p.41)

Preservation and Security Restrictions

This third restriction category has nothing to do with the content of the collection

(Hunter, 2003, p. 215). Rather, the focus in on the preservation needs of the objects in an


archives repository. Some items are so fragile that they cannot be safely handled by researchers.

Paper is slowly disintegrating because of acid exposure; leather, film and magnetic tape are

rotting or dissolving because of environmental conditions (Gorman, 2006, p.94). Other items are

rare or famous enough to be of a security concern. The Dead Sea Scrolls are an example of such

a rare item. In terms of these types of restrictions, access is commonly made available to a

duplicate while the original is securely stored. Digitization is becoming more common as a

medium for access without having to over-handle original items (Gorman, 2006).

Lessons Learned

Open and free access is important in any society; it helps protect democracies and

provides information that can educate and improve the human condition. However, open and free

access is not the same as equal and full access. It is up to archivists to make sure that researchers

trying to access collections are all treated fairly and impartially. Academic researchers should not

receive preferential treatment over individuals researching family history. Whenever possible,

restrictions should be discouraged but there will always be exceptions. Restrictions are placed on

collections for a variety of reasons – scholastic monopolies, privacy of individuals, national

security, and preservation. Some of these restrictions have been misused to the benefit of

individuals and organizations such as in the monopoly of the Dead Sea Scrolls or Braden’s

refusal to allow FBI access to her papers. In other cases, restrictions are necessary to protect

individuals and countries. Certainly, FERPA is an example of a necessary restriction as is a

restriction on a collection that contains information that may be harmful or embarrassing to a

living person. Archivists must make tough decisions everyday in order to achieve a balance

between meeting the needs of researchers and protecting donors. The “thorny problem” of access

is unlikely to disappear any time soon.


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