Escolar Documentos
Profissional Documentos
Cultura Documentos
Gary M. Peterson
Trudy Huskamp Peterson
63 1985, The Society of American Archivists, 600 S. Federal, Suite 504, Chicago, IL 60605.
All Rights Reserved
ISBN #0-931828-64-3
Appendices
1: SAA-ALA joint statement on access to original
research materials/98
2: Code Citations to State Open Records and Privacy
Laws/99
3: Requirements for the Loan of Original Records from
the National Archives/lOl
4: Copyright Act, sections 106, 107, 108/105
Illustrations
Figure 1. Archives laws at all levels of government/lO
.-
Figure 2. Relationship of record and nonrecord
material/l4
Figure 3. Model deed of gift for donation of historical
materials/28
Figure 4. Model deposit agreement/3 1
Figure 5. Model general restriction statement/62
Figure 6. Withdrawal sheet/66
Figure 7. Institution requests copy of copyrighted
item/85
Figure 8. User requests copy of copyrighted item and
wants to make copy himself/86
Figure 9. User requests copy of copyrighted item and
wants institution to make copy/87
procedural problems that can be solved by anyone will-
Preface ing to think carefully about them and to outline the
alternatives and assess the risks. Of course a lawyer will
be willing to talk with an archives about such problems;
Law. The very word sounds somber. Say it, and the some lawyers even specialize in something called "con-
voice drops, the vowel sounding in the back of the flict resolution." But there are several reasons to think
throat. And the mental images it prompts run to black, twice before calling a lawyer. In the first place, a con-
like a judge's robe or, at best, to the blue serge of a sultation with a lawyer will cost money, and the archives
policeman's uniform. Or the image is row upon row of will pay. Second, the archives will be attempting to
thick books, expensively bound, sitting on shelves in an transfer a decision that is logically its responsibility to
office, waiting to be willing accomplices to getting you the lawyer, perhaps undercutting its own authority to
into trouble. make such decisions independently in the future. Third,
For most of us, the law means power. Gilbert and the archives may not get the answer it wants, whereupon
Sullivan, who satirized the law whenever they could, it is hard to ignore the advice and take the course the ar-
have the Lord High Chancellor in Iolanthe sing: chives instinctively prefers. Use lawyers, but use them
The Law is the embodiment judiciously.
Of everything that's excellent. Several areas of law are not covered in this volume.
It has no kind of fault or flaw,
And I, my Lords, embody the Law. First, we have omitted any topic that seemed not direct-
Americans are notoriously litigious. De Tocqueville ly archival, such as equal employment opportunity laws
wrote of an earlier generation that "scarcely any ques- or laws covering the rights of the handicapped. This is
tion arises in the United States which does not become, not to suggest that these are not laws of importance to
sooner or later, a subject of judicial debate." This archival institutions; they surely are. We have, however,
generation is no less likely to turn to the law than were limited this volume to laws that affect the holdings of
the men and women of de Tocqueville's time. Archivists the archival institution and the use of those holdings. We
are swept along in this general social attitude. A New have tried to focus on topics unique to the archival
Zealand reviewer of the SAA's Archival Forms Manual profession or topics shared with other professions whose
noticed this tendency, saying, "Legal considerations are business it is to provide information and trustee-ship
obviously of greater importance to American archives services to the public. Readers interested in general
than to the New Zealand scene," adding that these con- problems in administrative law will find many other
cerns seemed "a little foreign" to New Zealand ar- sources providing such information. Second, state and
chivists. local laws are not covered in any comprehensive
fashion. In a nation with so many governments creating
Archives & Manuscripts: Law is an attempt to sort
laws about records it is simply impossible to review all
out the legal issues that confront archivists in the United
the pertinent legislation in one volume. Consequently,
States. There is no doubt that the matters we are
most discussions of law and legal process use federal
discussing in this volume are complex; if they were easy,
laws and practices as a basis and most examples are
there would probably not be a legal angle to them. They
drawn from federal experience.
are practical matters with important consequences,
whether for the institution or the user or the donor or the The volume is also unbalanced in another way. We are
archivist. This manual focuses on basic legal ques-tions very conscious that our friends who are users of ar-
in archives. It cannot answer all questions, con-sider all chives will notice that the volume stresses closure of rec-
possibilities, or provide all answers. Its aim is to present ords, worries about security in research rooms, describes
the legal questions that confront archivists in the litigation, and so forth. In all things, it is the problem
performance of their professional duties, to point to the areas that create the legal issues that give rise to litiga-
major types of laws governing archives, and to discuss tion and thereby give people signposts to follow.
some reasonable means of analyzing and resolving legal Naturally, a manual looks to the problems and the
issues. potential solutions to them, not to the areas where
We do not intend this volume to be frightening; we everything runs smoothly. Like the purity of the famous
most emphatically do not want it read as suggesting that soap, 99.44 percent of all records are open and 99.44
all problems have a legal component and that archivists percent of all working relationships between archivists
should routinely seek legal help. Far from it. In fact, we and users are noncontroversial. Unfortunately this
believe that the tendency of most people is to use volume must focus largely on the other half of one per-
lawyers too often for too many problems. Many so- cent.
called legal problems are really just knotty ethical or As this manual evolved we relied on many people for
8 LAW
information, advice, and encouragement. Several peo-
ple wrote or telephoned to us with legal issues they
wanted us to address, and we learned from all the very
practical problems they presented to us. We gained in-
sights from the reviewers of this volume in draft, and the
final product is better for their comments and criticism.
We particularly want to thank three people: Maygene F.
Daniels, Richard A. Jacobs, and Ann M. Campbell. Over
the years these three have challenged us to think deeply
and critically about central archival issues, and this book
reflects those hours of friendly debate.
etc.
Figure 1
Materials Preservation Act governing the presidential The discussion in this volume falls naturally into two
papers of Richard Nixon, to name the most famous re- parts. The first five chapters focus on the legal aspects of
cent court case involving r e c o r d ~but,~ hundreds of common archival functions: the accession, donation, and
less-heralded cases have also focused on records receipt of materials; the concepts and administra-tion of
I
questions. Furthermore, it is within the jurisdiction of access policy; and the legal implications of reference
I
the courts to decide what records to admit as evidence, a service. The last three chapters deal with special topics,
point of special importance when the archivist is including a discussion of copyright law, a review of the
handling non-paper records. legal standards for admissibility of documents in
The archivist must be aware of the context of laws in evidence, a discussion of the problems of replevin, some
which the archival institution operates and must take advice on working with a lawyer, and a description of
prudent steps to understand the laws that affect records. the process of litigation.
When thinking about laws, the archivist must not hope Sorting out which laws apply to records and archives
for consistency. Laws are created by different people at in a specific instance and what the law really means is a
different times in different places, and consistency and common problem. Often there is no clear answer, but
congruence are unusual. Especially when dealing with there are answers that are better than others. In the
tax laws, it is important to remember that the logical following chapters, some of the better answers will be
answer may not be the legal one. explored.
'Nixon v . Administrator of General Services, 433 U.S.425 (1977).
LAW AND THE THREE A'S 11
institution or documented gifts, and
organization. In the the tax implications of
1 Law and former case, the records
will be transferred from
dona-tions. The chapter
concludes with a brief
Records that
Remain in
the Three A's: one part of the institution discussion of the legal the
(the operating office) to issues surrounding the Originating
Acquisition, another (the archives) purchase of historical Institution
but the legal title does materials. When the archives is
Appraisal, not change. In the latter part of the institution that
Accessioning case, records are created the records, the
transferred from the authorities for
creating institution to the inspection, ap-praisal,
The first question archival institution, and accession, and transfer
archivists ask about a the transfer - a donation, are wholly within the in-
newly arrived body of just like the donation of stitution. There is a
material is, "Are these major distinction
personal papers - must
records of an institution between public in-
be documented by an
or personal papers of an stitutions and private
instrument of donation.
individual?'' From the institutions, however, for
Finally, a few archives
answer flows a well- public institutions are
established set of ac-quire new bodies of
governed by
procedures, from prin- material by purchase,
governmental statute and
ciples of arrangement to and with these transfers
regulation, while private
practices of description. there emerges yet a third
institutions are largely
For legal purposes, set of legal problems to
outside the ambit of
however, this distinction complement those
government regulation
is not enough. The law questions of internal
on matters relating to
needs to know who owns transfer and donation.
recordkeeping. In both
the materials and if and This chapter looks cases, though, the stages
when the ownership first at the legal of records definition,
changed hands, because questions involved in inspection, appraisal,
from the basic property acquisition, appraisal, enforcement, and
right of ownership come and accessioning when transfer must be
most other legal the records remain negotiated successfully if
considerations for within the originating the later processes of
archival materials. And institution. The focus of arrangement,
the time to determine the discussion is the description, access, and
ownership is when the records of public institu- reference are to operate
materials are ac-quired. tions, principally because smoothly.
With personal papers the majority of legal
it is relatively easy to problems aired publicly
answer the law's in courts or in the press Records of Public
questions. With only rare have originated there. Institutions
exceptions all personal Following that review,
papers originate outside some comparisons are The records of public
the archival institution drawn with legal institutions are governed
and thus must come to problems of records that by statute, internal
an archives as donated remain within a private regulations, and judicial
materials. Records are institution. Chapter 2 decisions (the last are
considers donations of often incorporated into
not so simple. Records in
records and personal regulations as well).
archival custody may be
papers, including the Because the United
either the records of the
problems associated with States is a federal
institution of which the
deeds of gift, deposit system, federal and state
archives is a part or the
agreements, un- governments are
records of another
independent of each cities, and the law
other, and although there creating the
are some exceptions to intergovernmental body
this, it is generally safe is likely silent on the
to assume that authority matter.
is decentralized. This
means that at each level
of government there are 'H.G.Jones;Local
statutes, regulations, and Government Records, An
Introduction-to Their
decisions pertaining to Management, Preservation,
records that are unique and Use (Nashville, Tenn.:
to that level. American Association for
State and Local History,
The relationship of 1980), p. x .
state governments to
local govern-ments of
counties and cities is
more complex.
Technical-ly states
create cities and
counties, and state law
governs them. Whether
the state records law
covers county and city
records depends upon
the language of the
particular state statute.
For practical purposes
we refer only to
national, state, and local
levels of government,
but that simplicity is
misleading. One recent
estimate is that there are
81,000 governmental
bodies in the United
States, in-cluding such
entities as water
districts, regional public
health facilities, and
metropolitan area
councils of
governments, and they
do not all fall neatly into
the usual three levels.'
Who, for example, is
responsible for the
records of a
metropolitan area transit
authority when the
authority is created by
an intergovernmental
compact of the various
independent cities within
the metropolitan area?
Probably no one of the
Yet as complex as the governmental system is, the chivists that materials of any physical type can be
problems for archivists at each level are remarkably agency records (it is not always so clear in the minds of
similar. Most public archives encounter difficulties in agency personnel, especially with respect to nontextual
defining records, obtaining access for purposes of materials). Some states, however, have found it
records inspection, securing adequate appraisal authori- necessary to define judicially the physical form of
ty, enforcing appraisal decisions, handling the transfer of records, usually in the context of a freedom of informa-
records, and reappraising and disposing of records tion act lawsuit. For example, the Minnesota Supreme
already in the holdings. While to some extent these are Court ruled in 1978 that data stored on computer tapes
problems of archives everywhere, the nature of public concerning payments to medical assistance vendors are
records brings with it public controls and public scrutiny public records, and in 1976 an Ohio court determined
to a degree generally unknown to recordkeepers in that microfilm is a public record.' While the temptation
private institutions. is great to list every physical type in the records statute,
pr0tracte.d debates on whether emerging records forms
Definition of Records
are or are not records within the statutory definition can
The definition of records is the first stage and a cen- only be avoided by using language of the broadest sort.
tral issue at each governmental level. Normally the Such language will, of course, ultimately be interpreted
elected government body (Congress, legislature, city by a court if questions of the physical form of records
council) defines records through regulation. Following arise in litigation, but if the statute has included expan-
the model of the federal records statute, many govern- sive language at least the possibility of defining any
ments have cast their records laws in such a fashion as to physical type as falling within the definition has not
answer the questions, "What materials in what form?" been foreclosed.
(all documentary materials regardless of physical form)
Institutional Coverage. A second major issue is the
"That result from what action?" (made or received and
application of the definition of records to agencies and
maintained or appropriate for maintenance) "By whom?
official bodies. With a federal system of government,
" (by the government) "For what purpose? " (in public records in the United States cannot be vertically
pursuance of its business and obligation^).^ A statement integrated (that is, the National Archives cannot tell
that the permanently valuable portion of the records will Texas State Archives or Portland City Archives what to
constitute the archives of the government is some-times do). It is, however, generally the goal of public archives
included in the definition. to be integrated horizontally at each level of govern-
Some archivists in public institutions will have the ment, with the archives holding the records of all
op-portunity to write records legislation. More often, branches of government and associated public bodies.
however, the public archivist will work with an existing The unfortunate tendency has been for legislatures to
statute that needs modification. Here the archivist will pass records acts that apply only to agencies in the ex-
need to analyze the records law, identify gaps in its ecutive branch of government and only occasionally to
coverage, determine whether case law fills the gaps, extend those acts to cover legislative and judicial
and, perhaps, work to secure appropriate amendments. records. The status of the materials accumulated by the
It is important that the language of a records statute be chief executives (president, governor, mayor) has under-
carefully crafted to avoid ambiguity. In particular, the gone change in the post-Nixon years, and the trend is to
statutory language should define clearly the physical define some portion of these records as public. But the
form of the materials; clarify the parts of government to legislative branches often have special provisions for
which this definition will apply; distinguish between of- their own records, and the records of the courts remain
ficial, nonofficial, and personal materials; establish the largely outside the purview of records statutes, probably
applicability of the definition with respect to other parts reflecting the general legislative unwillingness to tangle
of the legal code; and clearly identify who is responsible with the judiciary.
for determining what is a record within the scope of the Just as the application of the records statutes to the
definition. Each of these issues has recently been con- various branches of the government at a particular level
troversial, and a brief review of the questions raised in is a problem, so it is that the definition of records is
the controversies may clarify the reasons that such called into question by those bodies that lie at the edge
points should be covered in a records statute. of government: advisory committees, peer review
Physical Form. In the federal government it is well groups, contractors, grantees, consultants, and so on.
established in the eyes of the law and the minds of ar-
'Minnesota Medical Association v. State, 274 N.W. 2d 84, 89
(Minn. 1978); Lorain County Title Co. v. Essex, 53 Ohio App. 2d
'The federal statute is found at 44 U.S.C. 53301. 274, 275, 373 N.E. 2d 1261 (Ohio 1975).
LAW AND THE THREE A'S 13
those in-stances, the January 31, 1979, the Virginia
attorney general ruled that a
archives may be able to report distributed to a public
The records of many of suggest to the agen-cy If so, this tends to give
body becomes an official
these entities have been which materials will record if it pertains to the them color of official
defined as records for business of the public body, records, for it implies
have an enduring value even though no action is taken
freedom of information that the information is
for fur-ther research (for on the document. The "mere
act (FOIA) cases if the possession of a document is necessary to carry out
example, the
documents were in the sufficient t o make it an official duties.
computerized raw data official record," the attorney
possession of an agency, Does the government
from which a report was general wrote. Report of the
but the abstract question Va. At. Gen. (1978-1979), p. plan to continue this
produced).
of the nature of these 317. program over time, and
records absent an FOIA Is the function that the is possession of the
request has not been contractor-consultant is materials necessary in
resolved. Perhaps the per-forming a central order to carry out further
most reasonable function of the agency? work? This question is
approach here is to ask a Increasingly most often asked about
series of questions. governments employ statistical and analytical
private sector institutions studies, and it may be
Are 'the records in the to han-dle specified
physical possession of argued that even though
portions of the official the government has no
the agen-cy? Often duties of an agency. If
records of advisory immediate plan to extend
the statutory authority the study, it may do so in
bodies, including peer
establishing the agency the future and thus will
review groups, are.
man-dates a claim the materials as
Possession would tend
programmatic function records. Because this
to suggest records s t a t
which has subsequently argument is not based on
m4
been performed by present character and use
Were the funds
contractors, the but on probable future
provided to the
government may specify use, it would be best if
individual or institu-tion
that those records such statements of claim
to support private work?
This is most usually the produced by the were included in the
case with grants, and in contractor in the course contract itself. Lacking
this situation the of carrying out that such a statement, the
government has no function are government government would have
interest in the product of records. This could, for to turn to a common-
the grant, aside from instance, apply to a sense interpretation of
assurance that the work contractor who the contractual language
that the grant was to administers a city lottery, requiring the contractor
support was carried out. a consultant collecting to deliver the final
What does the written and analyzing on a product and all required
agreement between the continuing basis the backup information.'
govern-ment and the health care needs of the Record and
contractor, consultant, or state population when Nonrecord, Official
grantee say? The such analysis is a and Personal. The
agreement may define statutory function of the distinction between
what the government is state department of record and nonrecord
to receive as a product; health, and so on. materials and the
it may also say that the Were the materials in distinction between
government can obtain the possession of the official records and
from the contractor- quasi-official body either personal papers are
consultant-grantee any used by or related but separate
further materials that are communicated to issues. In the case of of-
needed to make the govern-mental personnel ficial records and
required materials to assist them in their personal papers, the
understandable or that official duties? question is one of legal
may be needed in the title. Does the public
future to replicate or 'A Virginia Freedom of own the document or
Information Act case makes does the individual? In
continue the work. In the point. In an opinion issued
the case of record and Understanding Progress as
Process (Chicago: Society of
nonrecord the question American Archivists, 1983).
is one of maintenance. If 6Maintenance in this
records are docu-ments instance does not necessarily
mean permanent retention but
that are created or instead means official
received and maintained retention by the government
or ap-propriate for for the period of time required
to fulfill its programmatic
maintenance by the responsibilities. This question
government, when is is particularly troublesome
maintenance with electronic records. Note,
too, that "nonrecord" is not the
appropriate? To put it same as a record having no
another way, per-sonal continuing value.
papers are by definition '44 U.S.C. 53301.
nonrecord, but not all
non-record materials are
personal paper^.^ (See
Figure 2.)
At present the federal
government and some
state governments
define some documents
as nonrecord by law. In
the federal statute, three
types of materials are
defined as nonrecord:
library and museum
material made or
acquired and preserved
solely for reference or
exhibition purposes,
stocks of publications
and of pro-cessed
documents, and extra
copies of documents
pre-served only for
convenience of
reference.' It is the last
category that has been
most at issue. Although
the
All documents in
government agency
I
I
I
Records Nonrecords
Materials in
physical custody
by statute but not legal
members property
I I
Figure 2
"convenience of reference" clause was probably con- While the difference between those two interpreta-
ceived as a cover for the extra carbon copies that many tions probably reflects South Dakota's narrower records
offices create and give to the drafters of documents, it statute, it is not dissimilar to a series of sometimes
has become embroiled in the issue of working papers. contradictory federal views on working papers. Again
Defining "working papers" is difficult. Although ar- looking to freedom of information act cases, when
chivists generally agree that some documents are judges have been asked to decide whether a document is
ephemera with only momentary usefulness, many work- a federal record, in general they have been extremely
ing papers are records because they clearly provide reluctant to accept arguments that documents in an
evidence of the activities of the government. Still others, agency's possession are not agency record^.^
perhaps most, fall between ephemera and records. Two Most often the issue of working papers reflects the
conflicting state interpretations show the range of debate limbo world of scraps of paper with hieroglyphic notes,
on the question. In Kentucky, the attorney general issued half completed and rejected drafts, and telephone
an opinion in 1976 that working papers prepared by numbers. In 1981 a National Archives task force con-
members of the state auditor's staff in pur-suit of their sidered the question of working papers. It recommend-
statutory duties are official records. In South Dakota, the ed that archivists attempting to decide whether working
attorney general decided that a coun-ty assessor's papers are record or nonrecord ask five questions, with a
working papers and preparatory data sheets are not.8 "yes" to any one of them suggesting that the docu-ments
have record status:
-
'Ky. Op. Att'y Gen. 76-204 (1976); 1979-1980 S.D. A.G.R., Of- 9See discussion of the definition of "record" under the Freedom of
ficial Opinion No. 79-6. Information Act in Chapter 4, p. 68.
LAW AND THE THREE A'S 15
records and to deal with "Report on 'working
papers.' " National Archives,
marginal types such as unpublished.
(1) Do the papers form stocks of publications "Kissinger v. Reporters Several attempts have
a unique part of an through the issuance of a Committee for Freedom of been made by the federal
adequate record of an the Press, 445
general disposal U.S. 136 (1980); the Bridgeport gov-ernment to define
agency's organization, authorization in a case was reported in New York personal papers. One, a
Times,
functions, policies, records schedule. Such November 20, 1981, A: 14. property management
decisions, procedures, "Bulletin" issued by the
an approach would also
operations, or other National Ar-chives in the
be more consistent with
activities? waning days o f the Ford
the emerging pattern of
(2) Were the papers administration, opened
the courts as they
controlled, maintained, by stating the statutory
proceed to define records
pre-served, processed, definition of federal
under the freedom of in-
filed, or otherwise records, then warned
formation acts (see
handled following usual government officials that
Chapter 4, page 68).
agency methods and "cor-respondence
The distinction
procedures? designated as 'personal,'
between official records
(3) Were the papers and personal papers of 'confidential,' or 'private,'
produced by an public employees has etc., but relevant to the
individual in of-ficial been aired repeatedly conduct of public
capacity? over the last twenty business, is nonetheless
(4) Do the papers years at all levels of an official record." Only
relate to official government. Presidents material "pertaining
functions of the agency? considered their papers solely to an individual's
(5) Were the papers personal property until private af-fairs" was to
communicated or used the passage of the be considered personal
or intend-ed for Presidential Records Act property that the official
communication or use in 1978. Many could take with him
by agency personnel presidential appointees when he left
other than the employee also removed records at
who generated them?I0 government.I2 A second
the close of their days in attempt to define the line
Deciding that working office; the con-troversy
papers are nonrecord between personal and
over the record status of official materials is
does not mean that they the Henry Kissinger
are personal papers; it found in the regulations
telephone transcripts is
simply means that their im-plementing the
only the most famous
disposition will fall Presidential Recordings
recent case (for a fuller
outside the scope of and Materials
discussion of the
records laws. (One Kissinger case, see Preservation Act of 1974
possible disposition, of (also known as the Nixon
page 17). Questions have
course, is to allow the also been raised about Papers Act).13 A third is
creator of the documents the documents from the definition provided
to take them home.) congressional by Con-gress in the
The larger question, committees that find Presidential Records Act
however, is whether their way into the papers of 1978, which states:
there is anything to be of the committee
gained by defining some chairmen, the missing The term "personal
government documents office files in the mayor's records" means all
as nonrecord. Such a documentary
office in Bridge-port, materials, or any
definition creates a third Connecticut (they were reasonably segregable
category of document subsequently returned), portion thereof, of a
(other than records and and so on. '' purely private or
per-sonal papers) and in nonpublic character
the process creates a which do not relate to
grey area within records or have an effect
loRichard A. Jacobs to upon the carrying out
law. Perhaps the best Gary Brooks, Maygene of the constitutional,
approach is to define all Daniels, Jean statutory, or other
agency documents as Fraley, Steve Tilley, official or ceremonial
February 27, 1981,
duties of the Guidelines for Official
Records and Personal Papers."
President. Such term "Presidential Recordings
includes - and
(A) diaries, Materials
Preservation
journals, or other Act, 44
personal notes U.S.C. 82111 note. (This
serving as the section was previously codified
functional as 44 U.S.C.
equivalent of a $2107 note.) The most recent
set of proposed implementing
diary or journal regula-tions, including
which are not citations to pertinent court
prepared or utilized decisions, is found in
for, or circulated or Federal Register, v. 50, March
com-municated in 29, 1985, p. 12575.
the course of, I4PresidentialRecords Act of
transacting 1978, 44 U.S.C. 52201 et.
Government seq. For a
critical view of changes in the
business; presidential papers law, see
(B) materials Alexandra
relating to private K. and David Wigdor, "The
political associations, Future of Presidential
and having no Papers," in
relation to or direct Harold Relyea, ed., The
Presidency and Information
effect upon the carry- Policy (New
ing out of York: Center for the Study of
constitutional, the Presidency, 1981), pp.
statutory, or other 92-101.
official or ceremonial
duties of the
President; and
(C) materials
relating exclusively
to the President's
own election to the
office of the
Presidency; and
materials directly
relating to the
election of a
particular individual
or individuals to
Federal, State, or
local of-
fice, which have no
relation to or direct
effect upon the
carrying out of
constitutional,
statutory, or other
of-ficial or
ceremonial duties
of the President.14
A particular problem
in both the Nixon papers
regulations and the
debates over the
Presidential ~ e c o r
dActs was what
documents reflecting the
political
12FederalRegister, v. 41,
November 19, 1976, p. 5
1149. The most recent
issuance by the National
Archives is a 1985 pamphlet
titled "For the Record:
16 LAW
Budget. From this nar- "Determinations under the
Presidential Records Act have
row focus, the circuit yet to be tested, for the act
activities of the president court of appeals turned applies for the first time to the (6) Maintenance.
would be considered to a general Reagan presidency and the Was the document kept
disposition of those materials
official and what consideration of the at the close of the administra- in the author's possession
personal. Although this criteria involved in tion. or was it placed in an
issue is not completely deter-mining whether official agency file?
resolved, there is general items are properly (7) Disposition. Was
agreement that there are official record material the document's author
some "public political" or personal property. free to dispose of it at his
functions, such as Summarizing the court's personal discretion?
meeting with party findings, the Justice What was the ac-tual
leaders on strategy for Department lists the disposal practice?
legislation, and some following criteria to be (8) Control. Has the
"private political" ones, used in making agency agency attempted
such as making to exercise "in-
record determina-tions:
monetary contribu-tions. stitutional control" over
(1) Creation. Was the
The distinctions are not the document through
document created by an
easy to draw. Further- ap-plicable maintenance
agency employee on
more, whether or not or disposition
agency time, with
documents reflecting a agency materials, at regulations? Did it do so
particular activity of the agency expense? (If not, by requiring the
president as leader of the then it very likely is not document to be created
party are public or an "agency record," on in the first place?
protected by privacy (as that basis alone.) (9) Segregation. Is
the courts at some time (2) Content . Does t there any practical way
will probably have to h e d.ocument contain to segregate out any
decide), it is not at all "substantive" personal information in
clear that this distinction information? (If not, the document from
then it very likely is official business
would apply to
not an "agency record," information?
governors, mayors, city
on that basis alone.) (10) Revision. Was
councilmen, aldermen,
Does it contain personal the document revised or
and so on. But a
updated after the fact for
resolution of the issue at as well as official
record-keeping
the national level will business informa-tion?
purposes?
form a precedent that (3) Purpose. Was the These criteria are
will have to be taken into document created solely
adaptable to distinctions
account by courts, for an individual
employee's personal between
officials, and archivists
convenience? Alter- records and papers at
at all other governmental
natively, to what extent other levels of
levels.15
was it created to government; in fact, with
A fourth and the
facilitate agen-cy some modifications they
clearest distinction
business? may be applicable to
between official records
(4) Distribution. Was private sector
and personal papers at
the document distributed institutional records as
the federal level is found
to anyone else for any we11.16
in a court ruling in a
recent freedom of reason, such as for a A final type of
information act case. business pur-pose? How nonrecord material is
wide was the that which is in the
The case arose when
circulation? physical custody but not
requesters sought copies
of appointment ( 5 ) Use. To what the legal control of the
calendars and telephone extent did the agency, that is, legal
document's author ac- custody is retained by a
message slips from high-
tually use it to conduct person or organization
level officials in the
agency business? Did outside the agency. For
Justice Department and
others use it? example, a judicial
the Office of
Management and agency may have records
of a private party on never done so. He
loan; an agency may concluded, and other
have legislative courts have followed,
documents on loan; one that there is no definition
agency may have of the records in the
documents that have federal
been loaned to them by
another agency. Legal I6U.S. Department of
problems involving these Justice, FOIA Update, v. 5, no.
materials have surfaced 4, Fall 1984, pp. 3-4.
in freedom of
information act cases at
the federal level, and
they are discussed in
Chapter 4, page 68.
Application of
Definition to Other
Laws. A fourth major
area that must be
considered in the
definition of records is
how broadly the
definition is to be
applied with respect to
other parts of the legal
code. In par-ticular, will
the definition of records
for administrative and
archival purposes also be
used as the definition of
records for freedom of
information and privacy
acts? To avoid confusion
and to assure consistency
in record-keeping
practices, it is desirable
that one definition of
records exists. In the
federal government, the
Freedom of Information
Act did not specifically
refer to the definition of
records in the Federal
Records Act, and in an
important freedom of
information act case the
judge decided that the
definition of federal
records in the Federal
Records Act did not
apply in FOIA cases.
Con-gress, the judge
pointed out, "had ample
opportunities to make
the [Federal Records
Act] definition of
'records' applicable" in
FOIA cases but had
LAW AND THE THREE A'S 17
Following the Kissinger belief that the documents may
have been wrongfully removed
decision, the Office of under the Act. Despite
government for FOIA Legal Counsel of the Kissinger's refusal to comply independent authority to
cases and each court will Department of Justice with the Archivist's re-quest, no determine the records
make determinations as suit has been instituted against status of particular
issued a legal opinion on Kissinger to retrieve the records
cases come before it.I7 under 44 U.S.C. $3106.'' materials.20This leaves
the determination of
The pattern in the states the archivist of the United
records status. In it the
appears to be mixed, but States in an advisory role,
counsel argued that only
it is probably fair to say and in practice it could
the head of the agency
that the more restrictive mean dozens of different
originating the document
the general records law is, interpretations of what is
can determine what is a a record. The difficulty
that is, the more narrowly record of the agency and
the records that are public with leaving the
that GSA-National determina-tion to the
are defined, the more Archives had no
likely it is that agency head is that if he
incongruities will arise determines that cer-tain
between the records act "Goland and Skidmore v. materials are not records,
definition and definitions Central Intelligence Agency, et the archivist may have no
al., 607 F. 2d 339 (D.C. Cir. authority to inspect,
for public access 1978). See alsoTrudy Huskamp
purposes. Peterson, "After Five Years: An examine, and appraise
Assessment of the Amended them, no matter how
Authority to Define U.S. Freedom of Infor-mation significant the archivist
Records. A final Act," American Archivist 43
(Spring 1980): 161-168.
may believe the materials
consideration in defining
"At the time Kissinger left the to be. The result is a
public records is a clear Department of State he removed diminution of the ar-
statement of who is the the transcripts and deposited chivist's ability to protect
official who has the them with the Library of
Congress, restric-ting access to records of historical
authority to determine them. The committee wanted the value.
what is a record within the court to compel the return of the The federal law did not
scope of the definition. transcripts to the State
Department so they could be specify who was to define
Here again the federal
evaluated for release under the records, leaving it open to
problems are instructive. provisions of the Freedom of
In the case of Kissinger v. judicial interpretation.
Informa-tion Act. The
Reporters Committee for committee argued that the Lack-ing such an
Freedom of the Press, the
transcripts w b e records under interpretation, the legal
the terms of the Federal Records advisers provided one.
committee sought access Act and the Records Disposal
to transcripts of Act and should therefore be Archivists at all levels of
Kissinger's telephone returned to the executive branch government should seek
of government. legislative clarification of
conversations during the 19Kissingerv . Reporters
periods when he served as Committee for Freedom of the the central role of
national security adviser Press, 445 archivists in determining
U.S. 136 (1980). It is important records status.
and as secretary of to understand what the court did
state.I8The Supreme not do. First, it did not decide Inspection
Court ruled against the whether the telephone notes
were agency records. Second, it Assuming that the
committee, saying that the did not decide whether the
records management telephone notes were wrongfully determination has been
statutes under which the removed from the Department made that the materials in
of State. Third, the court question are records, the
plaintiffs sued did not specifically said that it was not
create a private right of deciding whether the plaintiffs next stage of the archival
action for return of records could have prevailed if instead process is inspection,
of linking the return of the whether for the pur-pose
for FOIA purposes. In documents to an FOIA case they
other words, the case was had instead lodged a complaint of preparing a records
decided on the question of
against the executive branch for schedule or appraising a
breach of duty to enforce the specific body of records
the right (known as Federal Records Act. This
"standing") of the means that the question of for immediate transfer. If
private actions to compel the possible the right of the
committee to bring the return of alienated records is still
suit, not on the facts of the open. The court noted, "The archives to inspect should
case.19 Archivist did re-quest return of be codified, in regulation
the telephone notes from if not in statute (if the
Kissinger on the basis of his
govern-mental records ''Office of Legal Counsel,
Department of Justice, to
statute has, in effect, a National Ar-chives, January 13,
"necessary and proper" 1981.
clause that allows the
archives to do all those
things that are necessary
to implement the statute, a
regulation may be all that
is required). In a number
of instances, public
archivists have confronted
an agency bar to
examining records. The
most usual case arises
when an archives wants to
inspect the records of an
agency that is normally
prohibited from opening
its files, for example, a
police agency, a health
care institu-tion, or a
welfare office. (The
problem is further com-
plicated if the records
management function of
govern-ment is in an
agency separate from that
of the archives; in such
cases it is possible to have
a three-way negotia-tion
over access for
inspection.)
At the federal level, the
problem of access for pur-
poses of inspection had
been well known for years,
par-ticularly with regard to
the Internal Revenue
Service's claim that
archivists could not
examine tax returns and tax
return information because
of certain provisions in the
Tax Reform Act of 1976.
The issue was most
forcefully presented,
however, during the
inspection of the records of
the Federal Bureau of
Investigation in 1981. That
appraisal was being made
under the direc-tion of the
court in the lawsuit
American Friends Service
Committee v. Webster, and during the appraisal ar- covering archival access (for example, "archival access
chivists were not permitted to review information from is permitted, all laws barring public access notwith-
Internal Revenue Service tax returns, informants, grand standing") would clarify archival authority.
juries, and electronic s~rveillance.~'On appeal of the
lower court decision, the plaintiffs raised the issue of ar- Appraisal
chival access for purposes of inspection, challenging the With the right to inspect clarified, other legal prob-
adequacy of the appraisal determinations made on the lems may arise, focusing on the actual process of ap-
basis of partial access. The circuit court ruled that ac- praisal. Because appraisal is subjective, the legal issues
cess by the National Archives for purposes of inspection surrounding it are often procedural. The FBI case men-
is contingent upon the approval of the "head of the tioned above is surely the most famous appraisal case
agency concerned" or of the president of the United ever to be challenged in court, and thus far its issues
States. This decision clearly limited the ability of the have been largely whether the archivists had inspected
National Archives to inspect records.22 A subsequent the materials, had made a timely and comprehensive
event appeared to confirm the weakness of the Ar- review of the records, and had adequately examined
chives' position, for in early 1984 the United States In- field office as well as central office files.
formation Agency refused a formal request from the ar- Archival appraisal judgments will always be arguable,
chivist of the United States to review transcripts of and there are relatively few precautions archivists can
telephone conversations secretly recorded by the agen-c take to deflect a challenge to a particular substantive
y)~ decision. Where archivists can take prudent steps,
It is reasonable that the archivists inspecting the sen- however, is in the procedure employed in the appraisal
sitive records of an agency be subject to the same con- process. Archives should have a clear set of written pro-
straints to which the employees of that agency are sub- cedures and standards for general appraisal work. If a
ject; for example, the archivists should have the ap- question is raised in the course of litigation about an ap-
propriate level of security clearances, may be required to praisal decision, the archivist should be able t o
sign any confidentiality pledges required of agency demonstrate that the appraisal in question followed the
employees, and so forth. But the governmental policy standard method and pattern and therefore was not ar-
must reflect the principle that archivists must be allowed bitrary and capricious. If the appraisal deviates from the
to inspect all records of the government for purposes of standard, the archivists must have an explicable reason
appraisal and for monitoring the implementation of the for doing so and should have a justification writ-ten at
appraisal decision (if the records management function the time of the appraisal explaining the devia-tions.
is part of the archives, this declaration should also in-
clude inspection for the purposes of monitoring records Documenting the appraisal decision in writing is stan-
creation and maintenan~e) .And~~ because legislators dard archival practice, and for legal purposes the key is
continually create new laws prohibiting access to some clarity. A clear and accurate description of the records,
type of information or body of records, it is useful to including physical type, office of origin, dates, volume,
have statutory language confirming that inspection for topics or functions reflected in the records, and reten-
the purpose of carrying out archival activities is not to be tion period is fundamental. The description should be
considered public access. A phrase in the legislation detailed enough to ensure that it applies to the records in
question and not others, leaving no confusion in the
reader's mind as to what was proposed for retention and
"The Department of Justice, acting as a mediator between the what for destruction.
demands of the National Archives for access and the demands of the
Internal Revenue Service and the Federal Bureau of Investigation to
But description is only part of the documentation
protect information, sided with the IRS and FBI and barred NARS. needed if an appraisal is challenged. Documenting the
"American Friends Service Committee v. Webster, 720 F. 2d 29 determination-why it was made and how it was arrived
(D.DC 1983). Curiously, the plaintiffs contested the access at-is equally important. Standard lists of questions or
prohibi-tions on tax, grand jury, and electronic surveillance
information but not on informant names; consequently, the checklists setting out major appraisal criteria are one
appeals court ruled only on those three. way to ensure that all pertinent issues are regularly and
Z3"USIARefused Wick Tapes to Archivist," International routinely considered.
Herald Tribune February 29, 1984, p. 2; Robert M. Warner,
National Ar-chives, to Thomas E. Harvey, USIA, March 1 , 1984. Another procedural matter, but one that can have
Z4Thelaw creating the National Archives contained strong language on significant substantive consequences, is, quite simply,
inspection, giving the archivist "full power to inspect personally or by who has the final word. The records statute should state
deputy the records of any agency of the United States Government
whatsoever and wheresoever located, and the full cooperation of any and explicitly that the appraisal is the judgment of the ar-
all persons in charge of such records in such inspection." Unfor-tunately, chives and that its word is final. Many public archives
this language was dropped in a revision of the law in 1976. are buried in the bureaucracies of larger departments in
LAW AND THE THREE A'S 19
the executive branch of government, and although in most tell archivists, "Go back and follow correct procedures,"
instances higher levels within the government show no and a judge may employ outside archivists as an arm of
interest in becoming involved in appraisal questions, absent the court (known as "special masters") to do a second
a specific statement the possibility exists.z5And, of course, appraisal. It does seem unlikely, however, that judges in
if partisan politics becomes invo,lved, ques-tions will be the already overburdened court system will often want to
raised about the independence of archival judgment, take responsibility for deciding whether to toss or retain
particularly in matters of records destruc-tion. Rarely does particular bodies of material, thereby substituting
records retention cause controversy, although the court- judicial judgment for professional archival judgment.
ordered retention of the FBI records on Martin Luther And if such judicial decision-making does occur, it is
King, Jr., is one example of it.26 more likely to be at the federal than the state level,
A further issue is whether the public has standing to where no cases are known to have been brought.
sue the government if the decisions embodied in a
schedule or in an appraisal of a direct offer appear to be Enforcement
questi~nable.~'The federal courts at both the district and
Enforcing an appraisal determination raises the next
the appeals levels held in the FBI case that the public did
set of potential legal problems. There are rarely dif-
have the right to bring suit over appraisal decisions. That
ficulties when the appraisal is made on material directly
case, however, concerned mainly records where the
prior to the transfer of the selected material to the ar-
plaintiffs claimed to have a direct per-sonal interest (for
chives (assuming that the appraisal is made relatively
example, the Meerpol brothers and the records of their
quickly after the creating office offers the records).
parents, Julius and Ethel Rosenberg; historians and Scheduling and the enforcement of schedules is another
journalists who wanted par-ticular records for their matter. A records statute may specify that all per-
writing) and may not be con-trolling if a member of the manently valuable records are to be turned over to t h
public wants to challenge a decision in which there is no archives at a specified time unless the archives and the
direct personal connection. agency make an agreement to amend the deadline.
Schedules are then created within this time framework.
Because, as mentioned above, the questions on which
Other statutes provide no time guidelines at all. In either
the courts have ruled have concerned procedural issues,
case, scheduling raises several issues: What do the
it is not clear how often courts will want to intervene in
schedules cover? Is there a limit to their validity? How
substantive appraisal questions. Judges may certainly
binding are they? If one party defaults, what is the
recourse?
"The best-known example of interference from a higher political Coverage. Because schedules are implementing docu-
level is the "Nixon-Sampson Agreement" in which, without the
knowledge of the archivist of the United States, his boss, Arthur ments (that is, they are not statutory or regulatory but
Sampson, administrator of general services, agreed with ex-president instead are made pursuant to statute or regulation) they
Nixon on the control and destruction of certain Nixon presidential must clearly define the nature and extent of their
materials. The resulting uproar led to congressional passage of the
Presidential Recordings and Materials Preservation Act of 1974, coverage. The most common problem is that of the par-
which nullified the agreement. Notice, however, that the materials in tial schedule, covering only a part of the records of the
question were not records but presidential papers. Nixon-Sampson agency: while all parties may understand it at the time of
Agreement, September 6, 1974, in Weekly Compilation of Presiden-
tialDocuments, v. 10, September 16, 1974, pp. 1104-5. creation, at some time in the future someone will surely
26Leev. Kelly, Civil Action No. 76-1185, decided January 31, 1977, ask what is the status of the records not on the schedule.
Southern Chrktian Leadership Conference v. Kelly, Civil Action No. (This is a special problem if there is a standard general
76-1186, decided January 31, 1977, both D.DC. Editorial, "Gar-bage
Disposal," (re retention of King materials), Washington Post, schedule of records common to all agencies and it is a
February 2 , 1977, A: 14. Since the decision, questions have practice not to list those general schedule items on the
periodical-ly been raised about the retention, most recently during the individual agency schedules.) It is important that at the
debates over a federal holiday in honor of King, when Senator Jesse
Helms unsuccessfully sought access to the King files. beginning of the schedule it states unequivocally what it
"The new law governing the National Archives and Records Ad- covers and warns the agency that unless records not on
ministration, PL 98-497, provides that, prior to the archivist's
authorizing disposal of records, a notice of the proposed disposal shall be the schedule can be determined to be covered by the
printed in the Federal Register with a period for public comment. lsThe general schedule, if any, they must be considered
court wrote, "The legislative history of the records acts sup-ports a
finding that Congress intended, expected, and positively desired private
unscheduled and cannot be destroyed without the per-
researchers and private parties whose rights may have been affected by mission of the archives.
government actions to have access to the documen-tary history of the Duration. A second issue, related to the question of
.
federal government. . . Various private parties and the public cannot coverage, is the duration of a schedule. It is usual to find
review records that an agency has destroyed in viola-tion of disposal laws.
This appears to us to be a sufficient interest. that over time the character of the records arriving at the
. . ." Webster, above. archives under a scheduled item changes: one day
20 LAW
the archivist realizes that these are supposed to be either party is an appeal to a body with authority over
records on the manufacture of cordage and they seem to both agency and archives; that may be a judicial agency
be about apple inspections. Normally the schedule will within the government, the body of elective officials at
state in its opening paragraphs that these disposal the head of the government, or the chief executive. In
authorities are valid only insofar as the character of the these quasi-judicial determinations, the status and
records remains constant and that if the nature of the reputation of both agency and archives - rather than pure
records changes the schedule provision is to be con- records considerations - are likely to be key fac-tors.'O
sidered void and the agency should return to the ar-
chives for a new appraisal determination. Unfortunate- The role of the public in enforcing schedules by peti-
ly, agency personnel are usually in no position to make tion to the courts is untested; generally it may be
that judgment of the long-term shift in record types. assumed that if the decision in the FBI case on the right
Often it is the lowest level personnel who are assigned t of citizens to sue is controlling, the public could sue to
o the job of "cleaning out the files" for the annual files enforce a schedule. It is more likely, however, that the
campaign. And subtle shifts over time do occur; in the public would use publicity tactics rather than lawsuits to
example above the archivist should be asking both, obtain transfer and disclosure; the recent publicity over
"What happened to the cordage stuff?" and "Where was the declassification and transfer of State Department
this apple documentation before?'' The implication that records of the early 1950s is an example of this ap-
schedule decisions are eternal exacerbates the prob- proach.
1em.29
The possibility exists that a legal challenge to a
Transfer
schedule could be brought, alleging that records are be- The last stage of the appraisal and accessioning pro-
ing destroyed pursuant to an outdated, inaccurate, and cess is the physical transfer of the records. When records
hence invalid schedule item. (A challenge over retention remain within the institution that created them, the
under an outdated item is theoretically possible but transfer of the records does not transfer legal title but
seems unlikely.) Legally the government as a whole has only transfers custody. The dominion of the records -
a responsibility to protect records within the scope of the that is, the institutional hegemony with final, ab-solute
records statute. By placing caveats at the beginning of control of ownership - does not change. Custody - the
the schedule that explain the limits to the validity of the immediate charge and control, implying responsibility
schedule, the archivist is merely clarifying respon- for the protection and preservation of the thing in
sibility within the government (that is, shifting it from custody - does. Dominion, as a property right, is the
the archives to the agency of origin). Recognizing the superior right. 3'
prevalence of change in records series over time, While it might appear that there is no need to docu-
however, perhaps the more prudent approach would be ment transfer for legal purposes when title (dominion)
to develop schedules with stated expiration dates. Such remains constant, there are two important reasons to do
schedules could carry a warning that after the expiration so. First, a transfer document will clarify the respon-
date the agency could not destroy records until the ar- sibility for guarding against physical intrusion and
chives reauthorizes the application of the schedule. damage to the records. Second, the transfer document
Compliance. Schedules may be revised with the con- will establish the rights and responsibilities of the new
sent of both agency and archives, but what if the agency custodian for controlling intellectual access to the
refuses t o turn over records scheduled to come to the ar- materials. These reasons are easily seen if the transfer of
chives? What if the archives refuses to accept scheduled records to an archives is compared with transfer of
records, pleading that it has no room to store them? Is records to a records center. In the latter there is a transfer
there a legal mechanism that can be used by agency or of responsibility for the physical safety of the materials
archives to obtain compliance? but no transfer of the control over intellectual disposition
In general it is very difficult t o enforce schedules. The of the materials (that is, who can use them). Transfer of
problem is that both agency and archives are part of the materials to an archives, on the other hand, includes
same governmental entity and, as such, normally cannot transferring both the controls over the physical items and
sue each other for compliance. The only recourse for the intellectual content of them. This means
190ne of the more 'OIf the archives refuses to
uncomfortable parts of the FBI take in scheduled records at
case for the government was the agreed time, it must ensure
explaining why a "laconic" that the agency continues to
schedule (as one judge fulfill all preservation and
characterized it) from 1946 reference responsibilities. This
had never been reviewed again is a very sticky problem, but
by the Na-tional Archives for not a purely legal one.
nearly thirty years, given the "Black's Law Dictionary
changes in govern-ment and 460, 573 (4th ed.,
the FBI during that period of
time. 1951).
LAW AND THE THREE A'S 21
archives must determine period of years or as a
whether it ever had the contingency of an
that the archivist is case file on a par-ticular event; and the official the companies
responsible both for individual. responsible for making regulated"). The
preventing un-warranted A second area that the determina-tion to former is easier to ad-
physical access to the lift the restriction. The minister, but the latter
must be detailed in
documents and for type of material can be may enable the
transfer documents is the
making the archives to make more
physical form of the defined explicitly ("all
determination either to information available
items transferred. This is welfare case files less
release or withhold the to the public, albeit at
especially true if the than seventy-five years
documents' information. the cost of archival
archives is receiving a old") or it may be
Documenting the time to review the
microform copy as the stated subjectively files.
transfer, then, requires ("those portions of the
archival copy and the The authority for
agreement between the records of the
agency is retaining the restricting public
transferring office and Commissioner of
paper records for its own records must be found
the archives on several Insurance that reflect
use, to be destroyed in statutes, whether
key points. First, a the internal business
whenever the agency has explicit (such as the
document of transfer decisions of
no need for the records. provision restricting
must clearly identify
Legally the transfer the records of the U.S.
what material is
document merely reports decennial census for
transferred; this can
that the archives seventy-two years from
become critical if the
accepted the indicated the year of the census-
transfer includes both
format; in the case of a taking) or general ("the
documents that are open
microform or other copy, archivist shall, in his
to research and
it does not guarantee that judgment, restrict those
documents that cannot
this is a true copy of the records which would
be released to the public.
original but only that this tend to invade the
If information from
is the copy that the personal privacy of the
closed documents
archives accepted. In citizens"). Often, as in
somehow shows up in
Chapter 7 the legal the census statute, the
the press, it is often
sufficiency of various duration of the
necessary to determine
physical types is restriction is found in
when and how such
discussed; here it is only the explicit statutes;
information became
necessary to know that this is not true with
available, and clear
in the event that an general restriction
transfer agreements
archives is required to statutes such as the
should show when the
produce documents in provisions of freedom
information passed into
court, it will be of information acts.
the control of the
necessary to establish
archives. Similarly, the Perhaps the most
the form of the
creating agency may critical clarification in
documents at the point
come to the archives in the restric-tions section
of transfer.
the future and ask to of a transfer document
A third feature of the
review or borrow certain is who will be
transfer document
files; if the archives does responsible for
should be a clear
not locate all the files, removing restrictions.
statement of access
the transfer Agency officials may
conditions, including a
documentation should be want to retain either
state-ment of the type of complete authority or
clear and suffi-cient
material to be restricted veto power; archivists
evidence of whether the
(if any); the authority seek to avoid having
files were transferred in
(normally a provision of custody and
the first place. This
the freedom of infor- responsibility but not
requires that the
mation act, sometimes control. Again, if the
description of the
supplemented by another public records statute
materials transferred be
statute) for the is silent on the question
complete: "Four boxes
restriction; the duration, of authority for
of case files" will not
stated either as a fixed administering
help if in the future the
restrictions and if the the records does not
creating agency and the change. But both
archives cannot agree, because of the loss of
the dispute may be access to the documents
resolved by a superior by potential users and
office or officer within because of the
the government. If that possibilities for deletion,
occurs, the decision addition, misfil-ing, and
reached should be loss of the records while
explicitly in-cluded in in agency custody, ar-
the transfer chivists are loath to loan
documentation. If them. In at least one
subsequent transfers of instance, records
the same type of returned to an agency by
material occur, each set the National Archives
of transfer documents were lost, in another
should make reference instance the agency
to the deci-sion, if only subsequently refused to
by reference to the return them, and in a
initial transfer file. Ar- third case the records
chivists should not were supplemented on a
assume that their file-by-file basis with so
successors will read all much
transfer documentation
before providing
reference service on a
single transfer, so each
set must have com-plete
information. Standard
forms help reduce the
burden of repetition, as
does automated
electronic storage of
transfer information.
Fourth and finally, the
transfer documents
should reflect any
unique agreements
between the agency and
the archives about loan
of the documents back to
the agency of origin or
its successor agency.
Again, disagreement
between agency and
archives will have to be
resolved within the
government, and in most
in-stances an archives
will seek to limit or
prohibit the return of
materials to the agency.
Legally the return of
documents does not
matter, so long as the
loan and return are
clearly documented,
because the dominion of
additional documentation that the prospect of the return Here it is important to remember that the disposition
raised questions as to whether these could be con- of government property, of which records are a part, is
sidered part of the original series at all. governed by the general-property rules of the govern-
ment and as such is often outside the control of the ar-
Reappraisal and Disposal
chives. Some rules require a bidding process, some the
A final issue in appraisal and accessioning of public use of firms with state contracts, and so forth. A request
records is reappraisal of records, leading to destruction by the archives to use some means of disposal other than
of some or all of them. The decision to reappraise is that normally used for government property will require
usually that of the archives. As with initial appraisals, the approval of the agency responsible for the disposi-
the greatest legal protection for an archives in reapprais- tion of government property or by the government
ing records is to follow established patterns and pro- lawyers or perhaps by the legislative body itself.
cedures and to document the stages of the reappraisal. If Disposal by gift to another institution or by sale brings
the reappraisal leads to the destruction of records other problems. Assuming that the archives has authority
previously accessioned, the archives must document to give or sell records, the archives will need to develop
both the reasons for the destruction and the act of clear procedures for these activities. Again, the
destruction itself. possibility occurs that in the future some of these
The reason for controlling the actual destruction is documents will surface on the manuscript market, and
quite simple: if items that appear to be official records someone will approach the archives believing that the
from the archives subsequently surface on the manu- documents were purloined, necessitating an investiga-
script market, the archives will have to spend time deter- tion. One way to solve the problem would be to mark the
mining whether these items were stolen, were never items as "deaccessioned" before sending them out of
transferred by the agency and were somehow removed custody; that, however, involves an expenditure of labor
without approval, or were reappraised records that were that is probably unjustifiable. Once again, the best
not destroyed. Not long ago the National Archives found protection is a clear description of the items re-moved. If
itself in just this position: bound volumes of of-ficial the items are destined for deposit in another institution,
records began turning up in antique dealers' shops, and an agreement should be drawn up between the archives
questions were raised about the provenance of the items. and the recipient stating what the disposi-tion of the
I After some detective work it became clear that these materials will be if the receiving institution should, at
I were items that had been reappraised, found to be some time in the future, no longer want the records. The
lacking in sufficient value to warrant further reten-tion, most important question in such a case is whether the
I and transferred to a private concern for destruc-tion. records will revert to the public archives or whether the
Someone in the firm apparently retained some of the receiving institution has the right to dispose of them in
items and sold them. The resulting investigation led to any way it sees fit. Legally, as long as the transfer
the press becoming interested in the items, some dealers document is unambiguous, any means of subse-quent
claiming that the items were of significant historical disposal may be used; procedurally, the archives should
value, and a general review of the adequacy of the consider what future controls it wants to assert.
appraisal. But who really owned the documents in the
hands of the dealers? The legal answer is probably the Records of Private Institutions
government, for it turned the records over to the private
company only for purposes of destruction, not for resale, Most of the foregoing issues applicable to the archives
and when resale occurred it voided the con-tractual within public institutions apply to archives within
X
arrangement and the property rights reverted to the g ~ v private institutions as well. Legally, the type of private
e r n m e n t .The~~ question that follows, then, is institution does not make much difference when dis-
cussing records. All private institutions hold legal title to
whether the government should undertake a replevin ac-
their records and, with title, the other associated property
tion to retrieve these materials from the hands of private
rights. Corporations are fictive individuals for legal
dealers, even though these are records that the govern-
purposes; churches, which may or may not be in-
ment says have no lasting value. Conversely, should the
corporated, are recognized bodies in the eyes of the law;
government destroy records that would have some value
charitable and eleemosynary institutions are often in-
to a private citizen, as the dealers clearly believed?
corporated, and so on.
An important difference between public and private
321fthe institution has no stated method of disposition and merely puts
archives is that the public scrutiny that is part of the life of
the records in the trash, a person taking items out of the trash may be able the public institution is often missing in private in-
to claim them legally, citing abandonment by the institu-tion. stitutions, at least with regard to their recordkeeping
LAW AND THE THREE A'S 23
not be helped or im- inspection rights for gov-
peded by statutes, but the ernment officials, but it
practices. Controversies poses, grant fulfillment,
archives will have to does not represent a
between the archives and audits, and various
succeed by persuasion determina-tion about the
a records-creating unit in permanent disposition of govern-ment reports,
and internal politicking. institutions may be
a private institution or Appraisal deter- the records. Once the
between the archives and time period or particular required to maintain
minations may be records for specified
an individual employee criticized by persons event (such as an audit)
(such as a col-lege dean has passed, the periods, but again the
external to the permanent disposition of
who wants to claim the institution, but unless institution is free to
records of his office as dispose of the records in the records is normally
some direct harm is reserved to the in-
personal papers) will be sustained by that any manner it chooses.
resolved internally, Similarly, for tax pur- stitution itself.
individual by the A special legal
usually without any destruction of the
public intervention. And problem may arise with
institution's records (a university records. The
in a private in-stitution private hospital
the authority and private college or
destroying medical university has a clear
prestige of the archives records of a living
may relate more closely legal status; the public
individual, perhaps) college or university
to the person and intervention by the
personality of the raises some questions.
public is unlikely to have As mentioned above, it
archivist and his or her a legal basis on which to
superiors in the is likely that the state
proceed. Similarly, the records law was
corporate and enforcement of
institutional structure designed to control the
schedules and the reap- records of agen-cies in
than to the body of praisal and disposal of
policy and written the executive branch of
records will nearly the state government and
procedure that has grown always pro-ceed outside
up. Only if the institu- may not fit very well if
the reach of public legal applied to state
tion is involved in claims. With regard to
litigation that includes a universities. If the state
influencing the records law clearly
total or par-tial ban on disposition of private
institutional records excludes the state
records, the most potent colleges and universities,
destruction will outside weapon the general
forces intervene. For then for most purposes
public has is publicity, the state school can act
example, the lawsuit that not the law.
led to the breakup of as a private institution
Law does have a (for the Buckley Amend-
AT&T, included a broad, direct effect on private
court-ordered ban on ment exception, see
archives, however. For Chapter 3). The
records destruction. certain types of business
In other words, in a Colorado Supreme
activities - for example, Court, for example, has
private institution there the construction of low-
is no statute defining ruled that the University
cost housing under a of Colorado is not
records, and the
institution itself must state contract - the state covered by the state's
decide the scope that it law may require that the Open Records Act. If the
wants to claim as its records relating to the state records law covers
fulfillment of the state university records,
own. The institution can
contract be maintained as the attorneys general
decide what it wants to
by the contractor for a in Tennessee and North
claim as institu-tional specific period of years.
records and what it will Carolina have ruled, the
Normally such university must
allow officers and requirements will be
employees to remove as administer records
specified in the contract. accordingly. But if the
personal papers. In a The contract may require
private in-stitution, law is unclear, either the
retention of cer-tain state archives and the
archival inspection will records and may include
university can reach a sense. An understanding
written agreement on the of the basic goals of the
university's records archives and the
status or the university institution of which it is
can seek a legal opinion a part will greatly help
from the state at-torney the archivist administer
general. The latter will these procedures.
perhaps carry more
weight, but it also
involves raising the level
of debate and decision
beyond the level that
may be necessary to
resolve the issue. The
point remains, however,
that public colleges and
universities must clarify
their legal position on
records control vis-a-vis
the public records
authority.
Conclusion
As the foregoing
suggests, the acquisition,
appraisal, and
accessioning of records
is a complex process af-
fected by both laws and
internal rules and
procedures. Although
law provides the
framework within which
the activities take place,
it is often the rules that
are decisive. To avoid as
many later difficulties as
possible, the archives
should follow some
simple general guide-
lines: write it down, be
clear, and be consistent.
One final note of
caution is necessary. Few
laws or rules in the area
of appraisal, particularly
those attempt-ing to
define records, can be
applied mechanically.
They are usually more
like criteria to be applied
in the light of the facts in
an individual case, in
conjunction with a
healthy dose of common
2 Donations and Purchases
investigate prospective donors, but it does mean that
some tactful questions should be asked early in the
negotiations.
All transfers of private property to an archives should
Throughout the preceding chapter, the subject was be documented in a clear, unambiguous fashion. As ar-
records that remain within the institution that created chival materials have both a physical and an intellectual
them. The custody of the records changed from creating component (that is, a medium and a message), it is im-
unit to archives, but the legal title or dominion of the portant that the transfer document records the disposi-
records remained the same. In the institutional archives, tion of both the physical and the intellectual property. A
the archives has the right of possession or use, that is, number of instruments can be used to record the trans-
"custody," while the institution itself has the right of fer of property; the three most common are letter, will,
property, that is, "dominion." When records move from and deed.
one institution to another or when personal papers move An exchange of letters is probably the easiest of the
from the person to the institution, however, do-minion written instruments to execute, and many important ar-
changes and legal title passes. And here a new set of chival holdings have been acquired with an exchange of
legal issues arises. letters documenting the transfer of the title. The ex-
Many of the problems of institutional records evapo- change of letters is not just common courtesy; the ex-
rate when dealing with donated materials. There are no change serves also to indicate acceptance by the recip-
arguments over the definition of records, no controver- ient, one of the keys to determining title. Exchange of
sies over inspection rights, no internal battles over en- letters does not solve all the problems. The archives
forcement. Donations are arms-length transactions be- often does not have the opportunity in an exchange of
tween equal parties, each with particular goals and ob- letters to advise the donor or to obtain from the donor the
jectives. The compromises agreed upon between the elements of information that are or will be needed, such
parties are normally embodied in some form of docu- as the restrictions to be applied (if any), whether the
ment. Donations are gifts, and in legal terms a gift archives has disposal authority, and many other such
means that title to property passes from the giver to the matters. The lack of this information may require
recipient. The legal characteristics of a gift are a clear protracted subsequent correspondence, or it may lead to
offer, acceptance, and delivery. legal difficulties in the future. ("I know I didn't say you
The focus of this chapter is instruments of gift, prin- should withhold my correspondence with X, but I
cipally deeds. It briefly considers deposit agreements thought you would have known better.")
and undocumented gifts, then reviews the tax implica- Transfers of property, primarily personal papers, by
tions of donations of documentary materials. Finally will is also common. Because a will is usually prepared
there is a short discussion of the legal issues that may by a lawyer, some of the elements such as restrictions,
arise when historical materials are purchased. access, and disposition may be clearly defined, although
the conditions may be more stringent than the archives
Instruments of Gift would like. It is also probable that the donor or his
lawyer will have discussed the gift with the archives
Before entering into a gift agreement, the archival in- before the provisions of the will are drawn up, giving the
stitution should make sure that the prospective donor is archives the opportunity to suggest language to use in
competent and has clear title to the materials. Take as an the will's provision about the prospective donation.
example a case in which a very elderly woman signed a There are, of course, a few cases in which an archivist
deed. After her death the heirs demonstrated that she had opens the morning mail to find that the archives has
not been competent at the time of the signing, thus the been left the Jane Doe papers, papers which are entirely
deed was void. In another case, an heir offered to donate
'
Undocumented
Gifts
It is likely that some
materials will always be
trans-ferred to an archives
through simple oral
statement and delivery.
For example, a senior
citizen comes to the local
historical society with an
armload of local
newspapers from the
1920s and says, "I've been
cleaning out the at-tic. If
you want these you can
have them; if you don't
want them, just throw
them away." Such oral
transac-tions may be
perfectly sound, for they
usually meet the three
common legal tests for a
gift: a clear offer ("you
to the
Archives
2. Title to the Materials shall pass to the Donee upon their delivery to the Donee.
4. It is the Donor'swish that the Materials be made available for research as soon as
possible, consistent with the General Restriction Policy of the
Archives, following their deposit in the Archives. The Donee shall
have the Materials reviewed and shall restrict access to those Materials the use of
which should be restricted in accordance with the normal application of the General
Restriction Policy of the Archives.
5. Following the completion of the review provided for above, materials so restricted
shall not be made available for inspection, reading, or use by anyone, ex-cept regular
employees of the Donee in the performance of normal archival work on such
Materials, and the Donor, or persons authorized by him in writing to have access to
such materials.
Figure 3
DONATIONS AND PURCHASES 29
7. Materials which have been restricted from access as herein proiided shall be
reviewed by the Donee from time to time and any Materials which, because of the
passage of time or other circumstances, no longer require such restrictions shall be
opened to public access.
8. Subject to the restrictions imposed herein, the Donee may dispose of any of the
Materials which the Donee determines are not required by the
Archives.
9. The Donor hereby gives and assigns to the Donee all rights of copyright which
the Donor has in (a) the Materials and (b) in such of his works as may be found
among any collections of Materials received by the Donee from others.
10. In the event that the Donor may from time to time hereafter give, donate, and
convey to the Donee, for deposit in the Archives, additional
papers and other historical Materials, title to such additional papers and other
historical Materials shall pass to the Donee upon their delivery, and all of the provi-
sions of this instrument of gift shall be applicable to such additional papers and other
historical Materials. A description of the additonal papers and other historical
Materials so donated and delivered shall be prepared and attached hereto.
Signed:
Donor
Date:
The foregoing gift of the papers and other historical Materials of the Donor is ac-
cepted on behalf of the Archives, subject to the terms and con-ditions heretofore set
forth.
Signed:
Donee
Date:
Appendix A
Attached to and forming part of the instrument of gift of papers and other
historical Materials, executed by (Depositor) on (date)
and accepted by the (Archives) on (date).
Appendix B, C, etc.
The following additional papers and other historical Materials are donated to and
accepted by the Archives pursuant to the instrument of gift ex-
ecuted by (Depositor) on (date) and accepted by the
(Archives) on (date).
Figure 3, cont.
30 LAW
Alternative Paragraphs
Paragraph 4. It is the Donor'swish that the Materials be made available for research
as soon as possible following their deposit in the Ar-chives. At the same time, the
Donor recognizes that the Materials may include some information which, at present,
should not be released. Accordingly, the Donee shall have the Materials reviewed
and for the present shall restrict access to the following classes of material:
Paragraph 7. Materials which have been restricted from access in accordance with
Paragraph 4 above shall be reviewed by the Donee from time to time and open-ed to
public access when both Donor and Donee agree that conditions no longer require
such restrictions. At the death of the Donor, the authority to remove restric-tions shall
revert to the Archives. (Alternatively: The authority to remove restric-tions shall
revert to the Donor's Designee, , and at the death of the Designee the authority shall
revert to the Archives.)
Paragraph 8. Subject to the restrictions imposed herein, the Donee may dispose of
any of the Materials which the Donee determines to have no permanent value or
historical interest, provided that prior to any such disposal and during the lifetime
Figure 3, cont.
DONATIONS AND PURCHASES 31
of the Donor the Donor shall be notified thereof, and at the Donor'srequest, the
Materials proposed for disposal shall be returned to the Donor.
Paragraph 8. Subject to the restrictions imposed herein, the Donee may dispose of
any of the Materials which the Donee determines to have no permanent value or
historical interest. If in the opinion of the Archives the Materials should be pre-served
in a different physical form, such as microform or digital recording, the Ar-chives may
perform the necessary processing and the original Materials shall be disposed of as
provided herein.
Paragraph 9. During the Donor'slifetime, the Donor retains all rights of copyright in
Donor'sworks in all papers and other historical Materials donated to the Donee under
the terms of this instrument or which may be included in other collections of papers
deposited in the Archives. After the Donor'sdeath, all said rights shall pass to the
Donee.
Paragraph 9. During the Donor'slifetime, the Donor retains all rights of copyright in
Donor'sworks in all papers and other historical Materials donated to the Donee under the terms
of this instrument or which may be included in other collections of
papers deposited in the Archives. After the Donor's death,all said
rights shall pass to , if (he, she) survives the Donor, for (his, her)
lifetime or until (date),or until the rights expire, whichever event
occurs first. Upon that event all such rights shall pass to the Donee.
'igure3, cont.
of
Deposited in the
Archives
Figure 4
32 LAW
2. Title to the Materials shall remain in the possession of the Undersigned with
the clear intent that said title will be conveyed to the Archives at
the Undersigned'sfuture convenience.
3. The Materials shall be maintained in the Archives. At any
time after delivery and subject to the provisions of paragraph 5, the Undersigned
shall be permitted freely to examine any of the Materials during the regular work-ing
hours of the Archives where they are preserved.
4. It is the Undersigned'swish that the Materials be made available for research as soon
as possible, and to the fullest extent possible, following their deposit in the Archives. The
Director of the Archives or his delegates (hereinafter referred to as the Director) shall
have the Materials reviewed and shall restrict access to those Materials, the use of which
should be restricted in accordance with the normal application of the General Restriction
Policy of the
Archives.
5. Following the completion of the review provided for above, Materials so restricted
shall not be available for inspection, reading, or use by anyone, except regular
employees of the Archives in the performance of normal archival work on such
Materials, and the Undersigned, or persons authorized by him in writing to have
access to such Materials.
6. Materials which have been restricted from access as herein provided shall be
reviewed by the Director from time to time and any papers which, because of the
passage of time or other circumstances, no longer require such restrictions shall be
opened to public access.
7. Subject to the restriction imposed herein, the Archivist may dispose of any of the
Materials which the Director determines to have no permanent value or
historical interest, or to be surplus to the needs of the Archives, provided that prior to
any such disposal the Undersigned shall be notified thereof, and at the,
Undersigned'srequest, the Materials proposed for disposal shall be returned to the
Undersigned.
8. The Undersigned retains to himself all copyrights which the Undersigned has in (a) the
Materials and (b) in such of his works as may be among any collections of papers or
historical Materials received by the Archives from others. Upon the Undersigned's death,
said copyrights shall pass to the
Archives.
10. In the event that the Undersigned may from time to time hereafter deposit in
the Archives additional papers and other historical Materials, all of the foregoing
provisions of this agreement shall be applicable to such addi-tional papers and other
historical Materials. A description of the additional papers and other historical
Materials so delivered shall be prepared and attached hereto.
I
Figure 4, cont.
DONATIONS AND PURCHASES 33
-
11. In the event that this agreement remains in effect at the time of the Under-
signed'sdeath, the title to the Materials shall pass to the Ar-
chives, to be administered under the same conditions on access herein set forth.
Signed:
Depositor
Date:
T,he foregoing deposit of papers and other historical Materials is accepted on behalf
of the Archives, subject to the terms and conditions heretofore set forth.
Signed:
Archives
Date:
Appendix A
Attached to and'forming part of the instrument of gift of papers and other
historical Materials, executed by (Depositor) on (date)
and accepted by the (Archives) on (date).
Appendix B, C, etc.
The following additional papers and other historical Materials are donated to and
accepted by the Archives pursuant to the instrument of gift ex-
ecuted by (Depositor) on (date) and accepted by the
(Archives) on (date).
Alternative Paragraphs
Paragraph 4. It is the Undersigned'swish that the Materials be made available for
research as soon as possible following their deposit in the Ar-
chives. At the same time, the Undersigned recognizes that the Materials may in-
clude some information which, at present, should not be released. Accordingly, the
Director of the Archives shall have the Materials reviewed and
for the present shall restrict access to the following classes of Materials:
Figure 4, cont.
34 LAW
e. Papers and other historical Materials that are specifically authorized
under criteria established by statute or executive order to be kept secret
in the interest of national defense or foreign policy, and are in fact
properly classified pursuant to such statute or executive order.
Paragraph 7. Materials which have been restricted from access in accordance with
Paragraph 4 above shall be restricted until (specific date).
or
Paragraph 7. Materials which have been restricted from access in accordance with
Paragraph 4 above shall be reviewed by the Undersigned from time to time and
opened to public access when both Undersigned and the Ar-
chives agree that conditions no longer require such restrictions. At the death of the
Undersigned, the authority to remove restrictions shall revert to the Archives. (Alternatively:
The authority to remove restrictions shall
revert to the Undersigned's Designee, , and at the death of the
Designee the authority shall revert to the Archives.)
Paragraph 8. Subject to the restrictions imposed herein, the Ar-
or
Paragraph 8. Subject to the restrictions imposed herein, the Ar-
legally a tort, or civil wrong. The basic reference book with a lawyer or clergyman) are also normally assumed
on torts defines four different forms of invasion of to have a privacy element. Third, the right to privacy is a
privacy: (1) intrusion upon the individual's seclusion or right of living individuals, and there is normally no
solitude, or into his private affairs; (2) public disclosure privacy right for the dead (see page 53 for a fuller
of embarassing private facts about the individual; (3) discussion). Finally, once information about an in-
publicity that places the individual in a false light in the dividual is in the public domain, it usually remains open
public eye; and (4) appropriation, for another person's to subsequent users.
advantage, of the individual's name or likenes4 Until the federal Freedom of Information Act was
The invasion of privacy is similar to but not the same passed, actual legal tests of privacy in unpublished writ-
as libel of an individual. In libel (see page 44) the truth ten items were few. A review of the privacy principles
is a defense; that is, if the statement made about the in- that have emerged from federal FOIA cases begins on
dividual is true, it cannot be libelous. In a case of inva- page 53. While the law that has emerged from these
sion of privacy, however, the statement may be true but cases is undeniably federal in nature, every archivist
the primary damage is the mental distress from having needs to know and understand it. The federal FOIA in-
the information exposed to public view. Generally terpretations on privacy are the most substantial body of
speaking, the motives of the person purveying the infor- court-tested privacy concepts extant. As such, their
mation are unimportant in determining whether there is precedential value would likely be considered by any
a right of action for invasion of the right of privacy, court if an archives is charged with violating a citizen's
because the presence of malice is not required in a privacy rights.
privacy case.
In any specific instance these broad principles about Business Information
privacy must be judged in the light of the governing A second major concept used in restricting access to
statutes. There is no federal statute of privacy that ap- documents is the confidentiality of business informa-
plies to all records everywhere: the federal Privacy Act tion. Two types of material are covered: the informa-tion
applies only to the records of the federal government. an institution holds about itself and information it holds
Privacy acts have also been passed by a number of state about the business of others. The heart of the restriction
governments (see the list in Appendix 2), although they of business information is the need to protect the
are by no means as common as state freedom of infor- competitive position of the institution or organiza-tion or
mation acts. In the absence of a specific act, privacy individual to whom the documents refer. The in-
issues will be judged by common law principles and by formation may range from the formula for making a
the holdings of courts in previously litigated cases. product to a list of contributors to a charity to the
Litigation alleging that some person or institution in- amount of stock a person holds in a particular com-pany.
vaded another's privacy is quite common. Privacy is an The information may be financial and technical, but it
issue in lawsuits over contraception and abortion rights; may also be information about.future plans for the
privacy is litigated when citizens believe the government organization, exact membership lists for volunteer
has spied on them unjustly; privacy is an issue in various groups, and the cancelled checks of a person. It is under
cases involving use of photographs of persons taken the general rubric of business information that institu-
without their permission. Consequently, the issue is tions and organizations usually assert their privacy
usually couched in terms of what is an invasion of right$. (While privacy is usually discussed in terms of an
privacy, not what is privacy per se. individual, a private corporation also has a right to be let
Privacy tests involving written materials, especially alone, so far as the assertion of privacy for the cor-
unpublished ones (there are a number of cases in which poration is consistent with the law.)
news media have been sued for invasion of privacy), are Governments, as public institutions, cannot use the
a special category of privacy questions. While there is business information concept to bar citizen access to its
some disagreement over the application of privacy prin- records of income, expenditure, and administration. But
ciples to documents, there are a few points on which governments handle enormous amounts of infor-mation
most archivists and lawyers can agree. First, medical and submitted to them by businesses and organiza-tions, from
psychiatric files relating to an individual are usually tax data to bids on government contracts to labor relations
withheld from public access by privacy considerations. reports. The federal Freedom of Infor-mation Act
Second, certain materials containing information devel- recognized this substantial body of informa-tion in federal
oped or imparted during a client relationship (such as records and provided a specific exemp-tion to cover it.
Because the test that is used to withhold business
information under the federal statute is, "What could a
'Prosser on Torls, quoted in 62 Am Jur 2d, "Privacy," sec. 1. business reasonably seek to protect from
ACCESS CONCEPTS 41
excess of a particular institution or
dollar figure. organization.
disclosure?'' the Again, cases litigated mation requires careful
decisions in lawsuits under the federal By its very nature, an review and decision-
brought under the Freedom of Information investigation probes making. Two kinds of
federal Freedom of Act provides some areas where an privacy are involved:
Information Act provide guidance for archivists individual might that of the in-dividual
an ex-cellent review of trying to decide reasonably assert a who is the subject of
protectible types of right of privacy. For the investigation and
whether or not to open
business informa-tion. that reason, releasing that of the persons who
certain types of
In addition, because investigative infor- provided information to
personnel information.
businesses and the in-vestigators. In
Most likely, however,
organizations have been addition to the privacy
the federal standards
active in litigation issues, there is the need
are more liberal (that is,
focusing on this exemp- to protect the
more infor-mation
tion, the emerging institutional processes
would be released) than
judicial interpretation of and, occa-sionally, the
those of the private sec-
business in-formation persons who carried out
tor. The federal FOIA
attempts to balance the the investigation on
restriction of personnel
privacy needs of behalf of the institution.
businesses with public informa-tion is part of
the general protection The federal courts
needs for information. A have repeatedly
discus-sion of the FOIA of privacy (see page
54). struggled with the
business information problem of investigative
exemption begins on Investigative information. To be sure,
page 49. Information there is a great
The fourth restriction difference between an
Personnel
concept found in most investigation of a tenure
Information track candidate and an
A third frequent archives is the protection
of information generated investigation of drug
restriction is on personnel smuggling on the US.-
informa-tion. While this during in-vestigations.
Mexican border. But at
restriction has elements in Many institutions have
bottom many of the
common with both quasi-law enforce-ment
principles are the same,
privacy and business units (for example,
and any archivist dealing
information, it is often campus cops, corporate
with records of
han-dled separately to securi-ty forces). In
investigations would be
provide special notice to addition many more kinds
well advised to follow
users and reassurance to of investiga-tions exist:
the decisions courts
the employees themselves the fitness of candidates
make on federal FOIA
that the data is restricted. for ordination into the
ex-emption (b)(7) on
Normally some clergy; investigations of
investigative
information about charges of plagiarism in
information. In par-
employ-ment is available academic publications; ticular, archivists need to
to the public: who works various checks and pay attention to the
in the institu-tion, what reviews before hiring new decisions in cases on the
jobs are held by which employees. All of these subparts (C) and (D) of
individuals, the dates of may contain information exemption (b) (7), for
employment of an that if disclosed would these deal with personal
individual, and so forth. violate the privacy of the privacy in investigative
Salary figures are usually individuals involved; information. A
protected, except in moreover, some of them discussion of the current
governmental may reveal procedures interpretation of
employment, where salary (such as the exact way in exemption (b)(7) begins
schedules are public and, which campus police on page 55.
in some cases, state law rounds are scheduled) that
may require publication of would hamper further Statutory and Other
per-sonal salaries in effective operation of the Directed Restrictions
Finally, many archives rules may ap-ply. The
have restrictions based on most closely regulated
statute or on binding access is found in public
institutional decisions. archives of governments.
Govern-mental closure
statutes are familiar to The remainder of this
most archivists, such as chapter considers these
state adoption statutes, the restric-tions in terms of
federal statute regulating the creating and receiving
release of student records
institutions.
in colleges and
universities, and so on. In
addition, boards of
directors, boards of
regents, and other
governing bodies may for-
mally declare certain
records restricted. A
corporate board may
establish a dual set of
minutes, with one open to
the public and a fuller set
restricted; a charitable
organization's board may
declare its membership
list closed for ten years;
and so on. Whatever the
origin of the binding
restriction, archivists live
with it and must restrict
records accordingly.
interests in confidentiality: individual privacy, and techniques and procedures, or (F) endanger the life or
business and trade confidentiality. In addition, the physical safety of law enforcement personnel;
federal statute has a "pass-through" provision, which (8) contained in or related to examination, operating,
or condition reports prepared by, on behalf of, or for the
cross-references other federal withholding statutes and use of an agency responsible for the regulation or
says that these, too, can be used to restrict records under supervision of financial institutions; or
the Freedom of Information Act. Although the acts in (9) geological and geophysical information and data,
some states (like Wisconsin) specify no exemptions and including maps, concerning wells.
in other states (like Michigan) as many as twenty are Although agencies can and frequently do cite more than
allowed, a recent analysis of state freedom of informa- one exemption for withholding a single document, such
tion laws concluded that they generally include the five as both (b)(6) and (b)(7)(C), each exemption is evaluated
categories of protectible interests named above plus the on its own merits. The salient features of the current
pass-through provision found in the federal law. It is theory and application of each exemption follow.
important to note that the state pass-through clauses may
exclude from disclosure records whose release is Exemption (b)(l), National Security
prohibited by either state or federal law, making it vital The first exemption, (b)(l), covers national security
that state archivists be familiar with federal records pro- and foreign policy information that has been properly
visions. 2 1 classified under the standards and procedures of an ex-
The federal exemptions are found in subsection (b) of ecutive order on classification. These executive orders
the act and are often referred t o by subsection and date from 1940 and have been revised, rewritten, re-
number, such as "(b)(l)," "(b)(6)," and so on. They read focused, and reissued periodically since then, including
as follows: three times in a recent eleven-year period: 1972, 1978,
(b) This section does not apply to matters that are - (l) and 1982.22Not mere tinkering, each of these revisions
(A) specifically authorized under criteria estab- has signaled a substantial shift in the direction of gov-
lished by an Executive order to be kept secret in the in- ernmental security policy.
terest of national defense or foreign policy and (B) are
in fact properly classified pursuant to such Executive The relationship between the executive order and the
order; Freedom of Information Act is close but complex. In
(2) related solely to the internal personnel rules and 1973 the Supreme Court decided that if the agency
practices of an agency; classification of documents was procedurally proper,
(3) specifically exempted from disclosure by statute judicial review was barred.23 The Congress reacted to
(other than section 552b of this title), provided that such
statute (A) requires that the matters be withheld from this decision by incorporating into the 1974 FOIA
the public in such a manner as to leave no discretion on amendments a statement that courts have the right to
the issue, or (B) establishes particular criteria for with- order the production of agency records for examination
holding or refers to particular types of matters to be in camera (that is, in the judge's chambers, not in open
withheld; court). This amendment was designed to ensure that
(4) trade secrets and commercial or financial informa- classification would be both procedurally and substan-
tion obtained from a person and privileged or confiden-
tial; tively correct. Not surprisingly, a large number of FOIA
(5) inter-agency or intra-agency memorandums or let- lawsuits since that time have tested the review pro-
ters which would not be available by law to a party cedure. While courts often rely on affidavits submitted
other than an agency in litigation with the agency; by an agency assuring the court of the correctness of the
(6) personnel and medical files and similar files the classification, some courts have also demanded - and
disclosure of which would constitute a clearly unwar-
ranted invasion of personal privacy; obtained - production of documents.
(7) investigatory records compiled for law enforce-ment A fundamental principle of the executive order is that
purposes, but only to the extent that the produc-tion of such the agency that classified the information, or the suc-
records would (A) interfere with enforce-ment proceedings, cessor to that agency (the Department of Energy for the
(B) deprive a person of a right to a fair trial or an impartial
adjudication, (C) constitute an unwarranted invasion of
personal privacy, (D) disclose the identity of a confidential
source and, in the case of a record compiled by a criminal zzExecutiveOrder 11652, 37 F.R. 5209, March 8, 1972; Executive
law enforcement authori-ty in the course of a criminal Order 12065,43 F.R. 28962, June 28, 1978; Executive Order 12356,47
investigation, or by an agency conducting a lawful national F.R. 14874, April 2, 1982. For a useful comparison of the 1982 order
security intelligence investigation, confidential information with its predecessors, see Richard C. Ehlke and Harold C. Relyea,
furnished only "The Reagan Administration Order on Security Classification: A
by the confidential source, (E) disclose investigative Critical Assessment," Federal Bar News and Journal 30 (February
1983): 91-97.
"EPA v. Mink, 410 U.S. 73 (1973). The most important procedure
was the affixing of the marks on the documents indicating one of the
21Bravermanand Heppler, "A Practical Review." three levels of classification, i.e., Confidential, Secret, or Top Secret.
ACCESS CONCEPTS 47
prohibits the automatic "Phillippi v. Central
Intelligence Agency, 546 F.2d
declassification of 1009 (DC Cir. 1976); Gardels v.
records classified by the information because of the public. In some cases
Central Intelligence Agency,
U.S. Atomic Energy "unofficial publication or 689 F.2d 1100 (DC Cir. 1982); even nongovernmental
Commis-sion, for inadvertent or unauthorized E.O. 12356, 83.4(f)(l); Miller v. institu-tions have received
example), must disclosure." This is contrary
Casey, 730 F.2d 773 (DC Cir. documents that have later
1984).
declassify it. If the been withheld with court
t o the normal archival
classified information approval. Unauthorized
position that if information
has been accessioned disclosures (usually called
has already been disclosed
into the National Ar- "leaks") have been
at sometime in the past, it is
chives, the archivist of considered by the courts,
open. In practice, the cir-
the United States has the and the documents leaked
authori-ty to declassify it cumstances surrounding the
have been withheld.
under guidelines issued prior disclosure of the cur-
Consequently, applying the
by the agency of origin. rently classified
prior disclosure test
In addition, the archivist information have often
requires a "careful analysis
can declassify classified determined whether the
of the circumstances
information in information is officially surrounding the prior
presidential papers and released subse-quently. In disclosure, including its
in cer-tain other general, if the first extent, recipient, justifica-
materials.24 disclosure either was to tion, and auth~rization .
The first question that fulfill a legitimate "~~
must be answered in a governmental purpose or A third question t o be
declassification review is was unauthorized, the asked when releasing
whether the agency will agency can later withhold classified information is
con-firm or deny that the the same information. The whether it passes the
records requested are in its government can circulate "mosaic test." This test
posses-sion. The argument documents among agencies comes from the executive
is that in some cases of the executive branch order's definition that in-
admitting that the requested and, if condi-tions are formation is classifiable if
records exist would controlled, t o legislative "either by itself or in the
seriously damage the and judicial branches as con-text of other
protectible interests the well, without its being information" its release
FOIA exemptions are considered prior disclosure "reasonably could be
meant to safeguard. to expected to cause damage
Denials under (b)(l) on the to the national security."
basis of refusing to confirm The idea is that pieces of
or deny have been upheld information that
by the courts, and are often "The 1978 order required individually are harmless
called "Glomar denials" agencies reviewing records for may, when assembled,
possible declassification to
because the Central "balance the public's interest in reveal classifiable
Intelligence Agency access to Govern-ment information. If a piece of
successfully used this information with the need to information contributes to a
protect certain national security
argument in a case where in-formation from disclosure." A revealing pattern, it must be
the requester wanted number of court cases withheld. Courts have
records relating to the ship incorporated reviews of the acknowledged the "mosaic-
balancing done by the agencies;
Glomar Explorer.2 5 however, the 1982 order
like nature of intelligence
Glomar denials are also eliminated the balancing test. In gathering" and have upheld
used in other types of the case of Afshar v. Depart- the concept in restricting
ment of State, 702 F.2d 1125 information. 27
requests, especially those (DC Cir. 1983), the Court of
involving privacy interests Appeals said records were Because an executive
(see page 54). properly classified even if they order has the force of law
were classified under the old only within the executive
A second question is order requiring balancing and
whether there has been the agency had not applied the branch of the federal
prior disclosure of the balancing test; because the case government, in theory
was tried under the new order, classified information that
documents. The current the court declared, the balancing
executive order on question was "moot." finds its way out-side the
classification, no. 12356, executive branch or its
negotiated controls (such lsPerhaps one of the most
as with a contractor) loses emotional of these
congressional releases came on
its protection. In certain in- the night of June 29-30, 1971,
stances members of when Senator Mike Gravel first
Congress have made tried to read portions of the
public classi-fied "Pentagon Papers" on the floor
information, but these of the Senate but, raising no
quorum, read them out in a
instances of disclosure are committee room.
rare.28The executive order
generally requires that
infor-mation disseminated
outside the executive
branch be given equal
protection to that afforded
within the branch. This
also applies to classified
information con-tained in
personal papers donated to
a private repository, where
the receiving archives is
responsible for protecting
the classified information
until it is declassified.
certain records at the George C. Marshall Research materials for potential declassification and release, ir-
Library.29It is possible that other nonfederal archives respective of where they may be located.11
holding papers of former government officials could find Handling classified records and applying declassifica-
themselves visited by security officers seeking to review tion guidelines are highly technical procedures. Only an
papers in the archives. archivist working in this area on a daily basis can be
To reclassify previously open information, the agency reasonably certain to be applying current standards,
must state in writing both that the information requires guidelines, and tests. Anyone else who encounters such
protection in the interest of national security and that the records should seek help before deciding to make the
information "may reasonably be r e c o ~ e r e d . " ~In~ classified records available.
an open archives, where dozens of researchers may have
seen the material, the latter provision will be particular-ly Exemption (b)(2), Agency Personnel Rules and
hard for the government to sustain. If it is sustained, Practices
however, and the material in the nonfederal repository is Exemption (b)(2) is one of the exemptions that is
classified following the agency review, then to remove designed to protect the orderly workings of government
the classification the archives will have to follow the by allowing the withholding of information "related
declassification procedure described in the executive solely to the internal personnel rules and practices of an
order. agency." (Although the word order is confusing, the
With the pass-through provisions of state freedom of current interpretation is that "personnel" modifies both
information laws, states would be required to protect any "rules" and "practices." Routine administrative
classified information that may be found in state records. "practices" not related to personnel are covered also,
If such material is found, it should be segregated from such as law enforcement practices.) Oddly, this provi-
other records and stored "under condi-tions that will sion does not cover information about individual
provide adequate protection and prevent access by employees of the government; that is found in (b)(6). In-
unauthorized person^."^' Then the state should seek stead it covers rules, regulations, manuals of procedure,
advice for further handling and declassifica-tion from and the like.
either the agency of origin, the Federal Infor-mation A recent case suggests that (b)(2) may become par-
Security Oversight Office, or the declassification unit of ticularly significant in computer records. In December
the National Archives. Under the current order there is 1983 a district court ruled that a Department of Com-
no automatic declassification, so positive action is merce computer program, used to calculate whether a
needed to remove the classifi~ation . ~~ foreign steel producer had violated antidumping laws,
If classified material is in nonfederal custody, a re- can be withheld under (b)(2). Since the issue was the
searcher probably cannot request declassification of it program not the data, it suggests that an accession of
under the federal Freedom of Information Act. The act software-dependent computer records would have to be
applies to records of agencies of the executive branch of examined for the releaseability of both the substantive
the federal government and has no force in nonfederal information and the procedural format, that is, the pro-
institutions. Instead, a researcher seeking access to gram.I4
classified material in nonfederal hands would have to
Exemption (b)(3), Statutory Withholding
write to the agency that classified the information and
request declassification under the mandatory review The (b)(3) exemption is the cross-reference or pass-
provisions of the executive order on classification. The through provision requiring the withholding of any in-
order requires an agency, upon request, to review formation specifically exempted by a statute other than
the Freedom of Information Act. It is the most burden-
some of the provisions to administer, for it assumes total
19Seestories on the Marshall Library in the July 1983 SAA News-
letter, pp. 1-2. On February 15, 1984, the American Historical
knowledge of relevant statutes that may be found
Association, the Organization of American Historians, the American anywhere in the law codes. A recent survey of federal
Library Association. and others. filed a lawsuit challenging the NSA's statutes by a private group found agencies using 135
authority t o order the library to prohibit access to prevGusiy available
unclassified documents. The suit does not include a challenge on
laws with specific restrictions (for example, the restric-
classified documents. "NSA Authority to Prevent Access to tion of raw census information for seventy-two years)."
Unclassified Material at Private Library Challenged in Court," Ac-
cess Reports 10 (February 29, 1984): 7. 13E.0. 12356, 53.4.
IOE.O.12356, 51.6(c). I4Windek, Marx, Davies & Ives v. Department of Commerce, C.A.
"E.O. 12356, 54.10). The executive order is not a law and so might No. 83-0820, D.DC December 9, 1983. For the reinterpretation of Ex-
not technically fall under a state's pass-through provision, but states emption 2, see "The Unique Protection of Exemption 2," FOIA Up-
would be unwise to ignore the presence of classified material in their date 5 (Winter 1984): 10.
holdings. "The (b)(3) Project: Citations by Federal Agencies (1975-1982)
'lE.0. 12356, 81.4. (Washington: American Society of Access Professionals,
1984).
ACCESS CONCEPTS 49
matters to be withheld."
Courts have found few 36Bravermanand Heppler,
States have an even statutes that meet the "A Practical Review." now have formally
greater problem. In first test (thecensus act )'The congressional designated privacy laws,
addition to worrying statement that the Privacy Act but many of them have
mentioned above is one). may not serve as an exemption
about the federal laws A few statutes meet both (b)(3) statute under the FOIA specific laws restricting
that might apply through tests, but most of the is found in the Central In- access to certain
the state's own pass- questions have involved telligence Agency Act, PL 98- categories of privacy
477, 98 Stat. 2209, 2(c), information (for
through provision, there the second. The lawsuits which amends subsection (q)
are state statutes that over (b)(3) have tended of the Privacy Act of 1974, 5 example, adop-tion
close off access to to focus on the clarity U.S.C. 8552a(q). records). Because a state
adoption records, to state and severity of the freedom of information
income tax return criteria estab-lished in law rarely specifies
information, to in- the law that the agency which state statutes
formation submitted in override it (that is, the
seeks to use as an ex-
compliance with FOIA passes through to
emption (b)(3) statute.
them), each state must
environmental control Two matters of special
examine its statutes to
laws, to identities of controversy ,are whether decide what the
state welfare recipients, the Federal Privacy Act relationship is be-tween
and a host of others." is a (b)(3) statute and freedom of information
There is simply no whether the rules of and privacy legislation.
substitute for a thorough federal criminal and civil Another (b)(3) issue
review by archivists of procedure are statutes has been whether the
the statutes pertain-ing to and are thereby covered Federal Rules of Civil
the government of which by (b)(3). Congress Procedure and the
they are the records recently passed a law Federal Rules of
custodian. declaring that the Criminal Procedure are
Privacy Act is not a (b) (b)(3) statutes. Courts
The major legal issue (3) statute. This means have ruled both ways.
in exemption (b)(3) cases that a person can use Generally (b)(3) applies
has been what statutes both the Privacy Act, only to statutes, not to
qualify. The original with its standards for excecutive orders or
language of the Freedom releasing informa-tion, regulations. The Federal
of Information Act to gain information
amendments in 1974 Rules, which govern
about himself, and also proceedings in federal
mere-ly said that the Freedom of
exemption (b)(3) courts, are not statutes:
Information Act, with its they are rules, issued by
protected information separate stan-dards, to
"specifically exempted the Supreme Court, but
gain other information. Congress has the power
by statute." In 1976, in Because the Congress
an at-tempt to narrow the to review, amend, or
has said the two statutes reject them. After some
broad interpretation- must be used separately,
given this phrase by the controversy, it is now
an in-dividual may be settled that Rule 6(e) of
courts, the Congress able to obtain
amended the exemp-tion the Federal Rules of
information about Criminal Procedure,
(b)(3) language to himself under the
establish two tests for which prohibits (except
Freedom of Information in rare in-stances) the
statutes. To be a (b)(3) Act that would not be
statute under the current disclosure of "matters
available to him under occurring before" a
law, a law must either the disclosure stan-dards
require "that the matters grand jury, is a (b)(3)
of the Privacy Act." statute. This means that
be withheld from the The relationship
public in such a manner grand jury information is
between privacy and withheld under
as to leave no discretion freedom of in-formation
on the issue" or establish exemption (b)(3) of the
acts in the states is Freedom of Information
"particular criteria for murky. Only ten states
withholding or [refer] to Act.3s
particular types of
Similar rules of civil are restricted. Rule 6(e) itself
lists three exceotions: grand
and criminal procedure iuw information can be made
are in force in all states avail-able to (1) a government
for the proceedings in attorneyin the performance of
his duties, (2) upon a
the state court system. In demonstration that grounds
each case a exist to dismiss an indictment
because of irregularities in the
determination must be grand jury proceedings, and
made as to what extent (3) for a matter preliminary to
these rules do indeed a judicial proceeding. In
addition a series of court
serve as a bar to decisions have established that
disclosure and whether if the documents in question
they are statutes in terms do not elucidate the inner
workings of the grand jury,
of the state FOIA's pass- they may be re-leased. See
through provision. Murphy v. FBI, 490 F.Supp.
Probably only court tests 1138 (D.DC 1980).
will resolve the question.
Materials contain-ing
grand jury and other
information barred from
release under judicial
procedures will be found
prin-cipally in the
records of departments
of justice, in-vestigatory
agencies, and courts.
Archivists should be
extremely wary in
releasing grand jury
information.
Exemption (b)(4),
Business Information
Exemption (b)(4) is
the business information
exemp-tion, covering
"trade secrets and
commercial or finan-cial
information obtained
from a person and
privileged or
confidential." Most states
either have a similar
provi-sion in the freedom
of information act or
have separate statutes
protecting such
information that are
covered by the FOIA
pass-through provision.
This is one of the most
controversial areas of
access, with a host of
litiga-
-
-
3sFounding Church of
Scientology v. Bell, 603 F.2d
945 (DC Cir. 1979). Not all
federal grand jury materials
50. LAW
(4). A trade secret, under Public Citizen Health Research
Group v. FDA, 704 F.2d 1280
the Restatement of Torts, (DC Cir. 1983), the appeals
tion, a number of is "any formula, patent, court narrowed the trade mine inspection reports,
congressional hearings, device, or compilation of secret definition by requiring a and so f ~ r t h . In~' the
and a sensa-tional trade secret to have a "direct absence of a positive
information which is relationship" to the produc-
release to call attention used in one's business, tive process. Because this ruling that certain
to the sensitivity of the and which gives him ad- varies from all other court business information is
records. decisions, it re-mains to be seen not to be considered
vantage over competitors whether the narrower
The release was who do not know it or definition will prevail. "commercial or
exactly the sort of event use it.',40 financial," it is probably
that figures in the Commercial and safest to assume that all
nightmares of every financial information, on of it is.
archivist who handles the other hand, is a much Making that
materials in which there vaguer concept. One way assumption does not
is potentially sensitive to approach the problem mean that the in-
informa-tion. In response is to assume that all formation must be
to an FOIA request, the technical information withheld, of course.
Environmen-tal from a person or a Because this ex-emption
Protection Agency business firm is has three parts joined by
inadvertently disclose commercial or finan-cial "and," to withhold
the secret formula for the information. That covers documents under the
Monsanto Company's an enormous spectrum of exemption they must
herbicide named records, since business meet all three tests. That
"Roundup," which at the information comes to the means that the
time of the disclosure gov-ernment through information must be (1)
was the best-selling regulatory, procurement, com-mercial and
statistical, analytical, and financial, (2) obtained
herbicide in the world.
almost any other kind of from a person, and
The release created an
government ac-tivity. (3) confidential and
uproar and escalated the
The existing court cases privileged. Once the
strong urgings by
that attempt to define this determination is made
industry that Congress
concept have tended to that the information is
revise the FOIA's commercial or financial,
business information resolve the disputes on a
case-by-case basis rather the next step is to
exemption. 3 9 determine if it was
Unlike the (b)(l) than by establishing
general guidelines. The obtained from a person.
exemption, where the In the eyes of the law a
material in question must same patchwork appears
in state court decisions, corporation is a person -
be marked, or the (b)(3) a fictive one, but a
exemption, where the with New York, for
example, holding that person nonetheless.
material to be withheld Foreign gov-ernments
must be so clearly computer programs and
mathematical models have also been held to be
identified as to "leave no persons for purposes of
discretion on the issue" used by an insurance
company in pricing are this exemption, but the
or must meet particular federal government itself
criteria, the business exempt, Iowa ex-cising
is not. There is some
information exemption production data about
question of whether
does not define just what individual mines in state
information that a federal
constitutes a trade secret agency obtains by testing
or commercial or 39"EPA Lets Trade Secret
Loose in Slip-up, to Firm's
a product submitted to it
financial information. It Dismay," Washington Post, by a private business is
is ironic that the September 18, 1982, p. A l ; commercial information
notorious EPA disclosure "EPA Gets Bad Press on of that business (for
Attitude Toward and
was of a trade secret, for Handling of FOIA example, results from
that is the information Requests," Access Reports 8 tests of the flammability
usually thought to be the (September 29, 1982): 6-7. of children's pajamas
'ORestatement of Torts,
best defined and easiest $757, comment b (1939). conducted by the
to recognize under @) In the case of Consumer Product
Safety Commission). A is some question as to
whether information from a
very early case, even nonprofit entity can be
predating the @)(4) considered "commercial or
exemption, held that financial information" under
agency-produced test (b)(4). See Washington
Research Project, Inc. v .
information was not HEW, 504 F.2d 238 (DC Cir.
"obtained from a 1974) (cannot); but see also
person."42 Whether the American Airlines, Inc. v.
National Mediation Board,
ruling would be the same 588 F.2d 863 (2d Cir. 1978)
under the current @)(4) (Washington Research held to
language is questionable. be too narrow).
42ComstockInternational
Most of the exemption v. Export-Import Bank, 464
@)(4) litigation has F. Supp. 804 (D.DC 1979);
centered on the words Stone v. Export-Import Bank,
552 F.2d 132 (5th Cir. 1977);
"privileged or Consumers Union v .
confidential." The key Veterans' Administration, 301
F. Supp. 796 (S.D.NY 1969).
federal case is National
Parks and Conservation
Association v. Morton,
and its ruling has been
drawn upon by several
states as well. In it the
court proposed two tests
to determine whether
business information is
confidential. Test 1 was
whether the disclosure of
the in-formation would
"impair the
Government's ability to
obtain necessary
information in the
future"; test 2 was
whether disclosure
would "cause substantial
harm to the competitive
position of the person
from whom the
information was
obtained." In other
words, the exemp-tion
protects both a
governmental interest
(obtaining in-formation)
and a private one
(maintaining competitive
advantage). The court
further said that neither a
sub-mitter's claims of
confidentiality nor an
agency's prom-ise that
the information would
not be released were
"Belth v. Insurance
Department, 95 Misc. 2d 18-
20,406 N.Y. S.2d 649, 650
(Sup. Ct. 1977); Iowa Op.
Atty. Gen. 7481 (1973). There
ACCESS CONCEPTS 51
release of which might "National Parks and
injure the company; Conservation Ass'n v.
controlling; these two Morton, 498 F.2d 765 business firm (such as
resumes of key company (DC Cir. 1974).
facts were simply per-sonnel and data on "Timkin Co. v. United the introduction of a new
factors to be considered how the personnel are States Customs Service, 491 product or the
in making a F. Supp. 557 (D.DC 1980), acquisition of a new
utilized; and information Aff'd, No. 80-1794 (DC Cir.
determination but were on customers, sources of 1980); Continental Stock company) may lose its
not themselves Transfer & Trust Co. v. SEC, con-fidential character
supply, or business plans 566 F.2d 373 (2d Cir. 1977).
determinati~e.'~ that are valuable to the "9 to 5 Organization for after the plans become
To withhold company and not known Women Office Workers v. known or have become
information under the Board of Governors for the
to competitors. Some Federal Reserve System, 721
obsolete. A stdement of
first National Parks test, courts have applied the F.2d 1 (I st Cir. 1983). the holdings of a
the information must "mosaic test" (as company in a foreign
have been provided in discussed relative to (b) country that has
support of a function of (l) above) to business subsequently na-
the agency, have been information, but they tionalized the industry
provided voluntarily, and have generally held that (for example, tobacco
would not have been if the information is company investment in
provided by the publicly available from Cuba) may be
submitter if the other sources (the prior releaseable. A bid on a
information was known disclosure test) the government contract that
to be subject to release. government can-not includes technical
On the other hand, if the claim "competitive specifica-tions if
business has been re- harm" would result from subsequent product
quired to provide the development has made
information by statute, In addition to these the product
regula-tion, some other two tests, a recent court noncompetitive (early
mandate, or as a case has held that the computer bids, for
condition for a benefit, it government can use exam-ple) are probably
tends to undermine the exemption (b)(4) if the releaseable, as are other
argument that disclosure release of the types of bids if the
would impair the information would harm passage of time has been
government's ability to an "identifiable private such that a competitor
ob-tain such information or governmental cannot easily extrapolate
in the future. interest." This broadens from the data to
To apply the second the application of (b)(4) determine a current
National Parks test, the beyond the usual two status (the intervention
govern-ment must be interests out-lined in of a major political or
able to identify the National Parks.45 social change, a war, or
specific types of com- similar watershed event
Of all the exemptions,
petitive harm which is usually a good
(b)(4) concerns
would be risked by clue.)46 The type of
information which ages
release and be able to information that does not
the most rapidly. The
explain why release of easily lose a confidential
passage of time tends to
the information in ques- character is informa-tion
erode the applicability
tion is likely to have relating to natural
of the exemption, and
those results. Based on resources such as land,
this relieves archivists of
various court decisions, coal, timber, oil, gas, and
much of the burden of
several categories of the like.
handling commercial
information are likely to Exemption (b)(4) is
and financial
be protectible, including also notable because it
information exclusions.
technical designs or data has been the focus of
For example, a
of value to the company "reverse" FOIA cases.
document containing the
or to its competitors; in- These are cases in which
future plans of a
ternal cost information a person or corporation
for current or recent that has submitted infor-
periods; in-formation on mation to the
financial conditions, the government seeks to
block the govern-ment's 81-1840 (D.DC December 28,
1981), federal government
release of the contracts were ruled to be
information under the public. However, in
Freedom of Information Sperry Univac Division v.
Baldrige, Civil No. 82-0045-
Act. The first Supreme A (E.D. VA June 16, 1982),
Court review of the contract information was
"reverse" FOIA issue ruled to meet the com-
came in the case of petitive harm test. This
emphasizes the case-by-case
Chrysler Corp. v. Brown. nature of the (b)(4)
There the Court decided decisions. Some 35 states
that the Freedom of with FOI laws also state in
law that contracts are
Information Act itself public. Even in these cases,
did not create a right for bids for contracts may not
a person to sue to be.
"Chrysler v. Brown.
prevent release but the
Federal Administrative
Procedures Act did.47
Subsequently
numerous "reverse"
cases have been decided.
More importantly,
Congress has repeatedly
considered and
sometimes passed
legislation either to
prohibit the release of
particular types of
business infor-mation
without the consent of
the submitter or to create
a government-wide
waiting period before
business in-formation
could be released in
order to allow submitters
to take legal actions to
prevent release. Another
pro-posed solution to the
problem of releasing
business in-formation is
to allow a business to
request confidentiali-ty
at the time the
information is submitted
and there-after to require
the government to abide
by the com-pany's
wishes.
The problem with
most of these laws,
proposals, and policies
is that they have not
taken into account the
"In Racal-Milgo
Government Systems, Inc. v.
Small Business Ad-
ministration, Civil Action No.
52 Although a broad
LAW reading of its
language ("inter-
agency or intra-
rapidity with which agency
business information memorandums or
goes out of date; in
letters which would
general, there has been
not be available by
no termination date on
law to a party other
notification
requirements. Some of than an agency in
these laws and litigation with the
regulations require agency") would
notification of the suggest that almost
business before any any records could be
release of information closed under this
about it, even if the exemption, in
records have been open practice it has been
for decades: it is used more narrowly.
conceivable that One major use has
nineteenth-century been to protect
information could fall information that is
under these provisions., specified in the rules
The administrative of civil or criminal
burden of such pro- procedure as not
cedures. in an archives discoverable in the
would be enormous.4a course of litigation.
Although most states This includes
protect business information releating
information from to attorney-client
disclosure in some way, privilege (that is, the
there has not been work-ing relationship
much "reverse" between an agency
litigation in the states. and its lawyers) and
Notably, however, New attorney work-
York in 1981 amended product (that is, the
its freedom of documents a lawyer
information law to prepares during or in
require notification to reasonable
submitters before anticipation of litiga-
release of information tion). A second
on which the submitter major use has been
has requested p r o t e ~ to defend
t i o n .Federal~~ "deliberative process
practices in this area, as privilege," which in a
in so many of the FOIA major 1979 case the
issues, will have a Supreme Court held
significant in-fluence existed "to insure that
on state policies. a decision maker will
receive the
Exemption (b)(5), unimpeded advice of
Governmental his associates." An
Deliberative Privileges emerging third use is
Exemption (b)(5) is the to protect govern-
major exemption ment research,
designed to protect development, or
governmental commercial informa-
deliberative privileges. tion if the release of
such information to agencies still actively to withhold administrative
would put the using the records, and by records of the National
government at a the time the documents are Ar-chives itself.
competitive release of information transferred to the archives Both Texas and the
disadvantage (such as during the process of much of the necessity for District of Columbia have
awarding a ~ontract) . ~' protecting the decisional adopted the same
A series of cases has pro-cess is past.52It is true, language as the federal
examined specific however, that one case statute, and a dozen other
documents claimed as involving holdings of the states have language that
exempt under (b)(5), and a National Archives and the is close to that of (b)(5).
number of general (b)(5) exemp-tion was State cases are few and
principles have evolved. extremely difficult to tend to mirror the federal
First, time of prepara-tion resolve, although the agency ones. Again, federal case
of the document is with an interest in the law is influential.
critical: it must be a document finally agreed to
predeci-sional document the relea~e . ~'The Archives
to be protected by (b)(5). has also used the exemption
If, however, the
predecisional document is
either adopted as a final
decision or is incorporated
into a final decision, it
loses its protection unless
protected by one of the
other ex-emptions.
Second, matters of fact are
excluded; the ex-emption
is to protect advice,
comments, suggestions,
and so forth. Finally, (b)
(5) also does not protect
documents that report,
explain, or justify a final
deci-
ion.^'
Because (b)(5), like (b)
(l), falls within the
category of a protectible
interest relating to
confidentiality for the
government itself, the
question of prior
disclosure is again an
issue. Generally the
courts have followed the
same guidelines for (b)(5)
as in (b)(l) (see discussion
above).
Perhaps the best thing
to say about exemption
(b)(5) from an archivist's
point of view is that it
probably will not often be
used for accessioned
records. The very nature
of the exemption suggests
that it is most impor-tant
'OFederal Open Market
'OTo pick only three Committee v. Merrill, 443 U.S.
examples, the Export Trading 340 (1979). "Coastal States Gas
Company Act of 1982 (PL 97- Corp. v. Department of Energy,
290, 15 U.S.C. $84016, 4019) 617 F.2d 851 (DC Cir. 1980);
prohibits the disclosure of NLRB v. Sears, Roebuck & Co.,
commercial or financial 421 U.S. 132 (1975). Drafts are
information submitted to the a category likely to be exempt
Commerce Department by under the deliberative pro-
individuals or companies cess provision; for full
seeking immunity from discussion see "Short
criminal prosecution under Guide." J2TheSupreme
antitrust laws; in 1983 the Court has ruled that the
Postal Rate Commission termination of the litigation
established procedures for does not likewise terminate
providing submitters of con- the protection of attorney
fidential business data an work-product information.
opportunity to object to FTCv. Grolier, Inc., 103 S. Ct.
disclosure under FOIA, both 2209 (1983). Remember,
by asserting confidentiality however, that this is a
when the data is delivered and permissive, not mandatory,
getting a second chance before exemption.
it is released; a 1982 law (15 "In this case, a requester
U.S.C. $2055; 16 CFR 1101)
had asked for a memorandum
requires the Consumer Product
Safety Commis-sion to ensure written by the deputy solicitor
the accuracy of complaints general to the solicitor general.
about consumer products The letter agreeing to the
before the information is release of the memorandum
released. contains a legal analysis of the
"2 McKinney's 1981 ap-plicability of (b)(5). Frank
Session Laws of H. Easterbrook to Milton 0.
Gustafson, October 17, 1978,
N. Y., ch. 890.
copy in possession of the
authors.
ACCESS CONCEPTS 53
had a serious, inheritable Williams v. Departmen/ of
Justice, 556 F. Supp. 63 (D.DC
disease that the children
Exemption (b)(6), 1982) (agency's good-faith Book" interpreting the
of the deceased have a processing sufficient); but see
Personal Privacy Diamond v . FBI, 532 F. Supp. 1974 FOIA amendments,
good chance of
Privacy is the subject 216 (S.D.NY 1981)(research per-sonal information is
contracting. Releasing required on whether subject of
of (b)(6), exempting the issue, not files. The
the information about the the files was deceased); Lesar
"personnel and medical v . Departmen/ of Justice, 636 Justice Department
deceased may tend to
files and similar files the F.2d 472 (DC Cir. 1980). includes in that -phrase
invade the privacy of the
disclosure of which any "information about
living children and the
would constitute a an individual which he
withholding of the
clearly unwarranted could reasonably assert
information could be
invasion of personal an option to withhold
justified on (b)(6)
privacy." The first from the public at large
grounds. For (b)(6)
question is who is a per- because of its intimacy
purposes, it is safest to
son for purposes of this or its possible adverse
assume that persons
exemption. The courts effects upon himself or
named in the documents
have been quite clear on are alive unless there is his family. "5 6
this, saying that this proof of death or the In 1982 the Supreme
exemption is to protect passage of time is such Court affirmed this
individual human beings, that it is reasonable to position. A lower court,
not corporations or assume death. 5 5 in the case of
associations. The one Having decided who is Department of State v.
exception to this is a person for exemption Washington Post Co.,
information about a (b)(6) purposes, had ruled that "similar
small business, which "personnel and medical files" meant only files
can be considered a files and similar files" containing the type of
ques-tion of privacy must be defined next. data found in personnel
"when the individual and There are no major prob- or medical files,
corporation are identical. lems in deciding what information of a "highly
"54
are personnel and personal or intimate"
A second question is nature. The Supreme
medical files, but the
whether the exemption Court disagreed. It
"similar files" phrase has
covers dead individuals. declared that "similar
raised questions. In the
Again, the evolving case first place, do these have files" was to have a
law is that there is no to be entire files on an broad scope and that the
privacy right for the in-dividual, or does the government may
dead. It is possible, exemption also cover withhold in-formation
however, that the information about an that "applies to a
disclosure of information individual that is particular individual" to
about a dead person scattered in several files? protect that person. from
would violate the In the second, what is a "the injury and
privacy rights of surviv- "similar" file? Both the embarrass-ment that can
ing heirs or other close Justice Department and result from the
associates; in those cases the courts have unnecessary disclosure
the withholding would interpreted this phrase of personal information."
be based on the privacy broadly. In the words of This ruling appears to
rights of the living the attorney general's settle the question. 5 7
individuals even though "Blue
the information was Several other points
about a deceased person. are also quite well
settled for ex-emption
An example might make
(b)(6). For one,
this clearer. Suppose, for
protecting the identity of
instance, the dead person "Sims v. CIA, 642 F.2d 562,
57211.47 (DC Cir. 1980); the individual includes
once re-ceived medical National Parks v. Morton; not just withholding his
care at a military Providence Journal Co . v . name but also any other
hospital because he was FBI, 460 F. Supp. 778 (D.RI
1978), rev'd other grounds 602 information that might
a veteran. The hospital F.2d 1010 (1st Cir. 1979). serve to identify him.
records reveal that he
For example, if the
archivist is releasing a J6AttorneyGeneral's
Memorandum on the
file on a person who is 1974Amendments to the
probably still alive and Freedom of Information Act
in the records he is (Washington: Government
Printing Of-
referred to as "the fice, 1975), pp. 9-10.
secretary of the union J7"Short Guide;"
local at J. F. Cook Department of State v.
Washington Post C o . ,
Railways Corporation," 456 U.S. 595 (1982).
to protect the person's J8Nixv. United States, 572
identity both his name F.2d 998 (4th Cir. 1978).
and descriptor would
have to be deleted. The
exemption protects
information identifying
a person, not just the
name or Social Security
number of the
individual.
A second area where
there is common-sense
agree-ment is that a
person requesting
information about
himself will receive
more information than a
third party would; in
fact, there is some doubt
that exemption (b)(6)
can be used to deny an
individual any
information about
himself at
A third matter usually
agreed upon is that
public in-formation that
names an individual (a
newspaper arti-cle, a
press release, a book)
does not need
protecting. This is a
logical approach that
has been questioned on
occasion, such as
whether the privacy of a
person who was
involved in a publicized
case of embezzlement is
in-vaded if documents
reporting the same facts
are released thirty years
later (in general the
answer is no). But the
basic idea is that once
information is in the
public do-
LAW
interest in disclosure consistently. In the example of
the mental hospital's files, if
with the public interest the Glomar denial is used
main, it is not possible to in non-disclosure, that when there is a file but a
The types of information
return it to a privacy is, balancing the simple "we have no file" is regularly protected are
sphere.59 These, invasion of privacy (the
issued when there isn't, the marital status, birth
however, are nearly all Glomar is tantamount to
foreseeable harm) admission that a file exists. An
legitimacy, medical
the easy answers on against the benefit that ar-chives must make a condition, welfare status,
personal privacy. The will accrue to the
decision on whether to use the family rights and
problems surrounding "refuse to confirm or deny" for reputation, and religious
general public from the a series of records and then do
exemption @)(6) are release of the so irrespective of whether the af-filiation. The
many. They involve the information. This means
files do or do not exist. balancing test described
"Glomar test," the that archivists must above serves as a brake
balancing of competing judge the seriousness of on absolute privacy (as,
interests, the rights of of course, does the mere
the invasion of personal
public figures, and the fact that information
privacy that will result
perennial problem of lists about the individual is in
from the release, such as
of names, the hands of the
the likelihood of injury,
particularly mailing lists. government.)
damage, harassment, or
The Glomar test, The public interest in
embarrassment.
again, is the decision as disclosure is perhaps
To balance privacy
to whether or not the even harder to define.
against public interest,
agency will confirm or Courts have held that to
both con-cepts must be
deny the existence of be considered a "public
understood. The
information. If the interest" the release must
language of the Freedom
archives decides that benefit the general public
of Information Act
either confirm-ing or or substantial numbers of
assumes that privacy is a
denying would itself the public, not just
generally recognized
invade the privacy of the benefit an individual or a
term and provides no
per-son who is the commercial interest. For
specific definition. From
subject of the inquiry ex-ample, researchers
a series of court
(for example, "Do you have sometimes found
decisions, however, it
have a case file on John courts holding that the
Q. in the records of the appears that the working
release of information for
state mental hospital?") definition is roughly the
research is in the public
the Glomar test may be individual's ability to
interest, and nonprofit
in-voked. Although this control dissemination of
organizations serving
test may occasionally be personal, intimate details
groups whose needs will
used by an archives, it is of his life and the lives
be benefited by release of
much more commonly of members of his
the information have also
used by agencies when family.
prevailed. Courts have,
current records are however, also found that
requested. In general, J9Note the contrast between a number of claimed
historical interest this argument and the "public interests" do not
positions on "waiver" in
overrides the "confirm or exemptions (b)(l) and (b)(3). overweigh privacy
deny" issue in archival In the case of (b)(l) and (b)(3), claims. Courts have ruled
records.60 both examples of a protectible that "general public
interest in confidentiality for
Having confirmed the the government, information curiosity" is insufficient,
existence of the records, that reaches the public domain as are general claims of
the next decision is through leaks or through public service, such as a
necessary agency selective
which portions of the file disclosure can later be vague statement about
can be re-leased. This withheld under FOIA. In the serving as a public
stage is known as the protectible interest relating to watchdog6'
private in-terests in
"balancing test" or the confidentiality (business and If the requester is
"balancing of competing personal), a prior disclosure is found to be speaking for
interests." Many court considered to destroy
irretrievably the private nature
a public interest, the next
decisions have of the informa-tion. step is to determine what
recognized the need to 'OIt is essential that the is the public interest in
balance the public Glomar test be applied
disclosure. Courts have ''Courts generally protect
personal details of an
found several areas in individual's federal service,
which public interest can such as home addresses,
be assumed to be high. performance studies and award
reco~nmendations,complaints
One, and the most widely made against supervisors,
acknowledged, is if the medical and related details in
requested information employee claims, marital
status, college grades, etc. For
would inform the public discussion. see "Short Guide."
about proven violations
of the public trust (that is,
government
wrongdoing). Second, in
a line of cases unique to
the D.C. Circuit, the
professional and business
conduct of an individual's
business dealings with
the federal government,
such as the names of
suspected violators of the
EPA "Superfund" law, are
considered to be of public
interest. A third is a
vague set of issues in
which the public is
believed to have special
interests and rights, such
as the operations of
courts and the conduct of
union elections.62Finally,
the public is assumed to
have a right to basic
information about public
employees, both military
and civilian, such as their
names, present and past
position titles, grades,
salaries, and duty sta-t i o
n~.~~
"Getman v. NLRB, 450 F.2d
670 (DC Cir. 1971); Disabled
Officers Ass'n v. Rumsfeld, 428
F. Supp. 454 (D.DC 1977); Fund
for Constitu-tional Government
v. National Archives and
Records Service, 656 F.2d 856
(DC Cir. 1981); Aviation Data
Service v. FAA, 687 F.2d 1319
(10th Cir. 1982); Harbolt v.
Department of State, 616 F.2d
772 (5th Cir. 1980); Miller v.
Bell, 661 F.2d 623 (7th Cir.
1981).
62ColumbiaPacking Co.,
Inc., v. Department of
Agriculture, 563 F.2d 495 (1st
Cir. 1977); Tax Reform
Research G ~ o u pv. IRS, 419
F.Supp. 415 (D.DC 1976);
Cohen v. EPA, 3 GDS 83,223
(D.DC 1983); Ferri v. Bell, 645
F.2d 1213 (3d Cir. 1981);
Getman v. NLRB.
ACCESS CONCEPTS 55
degree of public commercial exploitation
knowledge about the and in
Balancing the person about whom the presence of a
competing interests has information is requested, demonstrated public
been particular-ly difficult 6Tund for Constitutional interest in disclosure, the
that will simplify the task Government v. NARS.
in two areas: information by reducing the number of 6J"Priva~yProtection
balancing test may be
about public figures and items of information on Practices Examined," FOIA applied and an agency
lists of names. The which a decision must be Update 3 (September 1982): 1. may choose to disclose
privacy rights of in- made. Those items of the list. At present, this
dividuals are eroded to the information that are not use of the balancing test
extent that they are known to the public must is a key exception to the
"public figures." A be afforded the balancing general proposition that
number of lawsuits, test. the purpose for which a
including two against the When asked about the requester seeks the
National Archives for "hard areas" in applying information under the
disclosure of information a privacy test t o Freedom of Information
from the records of the agency records, the Act is irrelevant to the
Watergate Special Defense Department's determination to release
Prosecution Force, have FOIA coordinator named or withhold.66
established some rather several prob-lems and State laws have similar
conflicting case law on then concluded, "And difficulties with privacy
the rights of public lists, don't forget the provi-sions, and state
figures. It appears settled Government records are courts have generally
that public figures have a replete with lists of required a balanc-ing test.
narrower orbit within names. These can range A few state laws also
which they can assert from lists of people who provide specific guidance
privacy rights than the re- on information that is
average citizen. If the ceived methadone to lists nondisclosable, such as
public figure is a of borrowers of books adoption records. Because
governmental official, from public libraries. The many of the state laws
information about him issue of making lists of closely parallel the federal
that reflects his part in the names and addresses statute, federal case law is
operations of government available, particularly if again pertinent. On the
generally cannot be they are to be used for issue of lists, particularly
protected by the privacy commercial mailing lists, for circulation records in
exemption, although it has been so controversial libraries, states have been
might be protected by that some proposed very active. Maryland,
another exemption revisions of the federal Virginia, Iowa, and
category. But it is equally Freedom of Information California, for example,
true that public figures do Act have included express have a statutory
not forfeit all rights to language pro-tecting lists exemption for circulation
privacy. One court, in fact, that could be used for records, while New York,
suggested that the "degree solicitation purposes. Nevada, and Texas have
of intrusion is indeed Absent such a provision, opinions by the state at-
potentially augmented by however, FOIA torneys general that
the fact that the in- administrators and the circulation records may
dividual is a well known courts have come to a not be re-lea~ed .
figure."64 Perhaps the number of barely com- ~'Archivists in those
most common-sense patible positions on the states may find that the
approach is to realize that disclosure of lists. language of the statutes is
if dealing with records An early FOIA case such that is also covers
relating to a public figure, held that an address list the user records
much of the informa-tion could be withheld if the maintained by the
may have already been information was sought archives.
disclosed, either by the solely for com-mercial As is apparent from this
per-son or by press reports purposes. Several other brief discussion, there are
about the individual. If the cases have concluded that no absolutes in the
ar-chivist can ascertain the in the absence of categories of information
that must be considered 67"Basic
Confidentiality/Access to
private. Context is all- Information Conflict Continues
important; a person's to Plague the Nation's
name in the public Libraries," Access Reports
(November 3, 1980): 7.
telephone directory is one
thing, the same name in a
list of drug-treatment
patients is quite another.
Prior disclosure can make
the most intimate in-
formation - birth
legitimacy, for example -
public in-formation.
Perhaps the single
most important quality of
infor-mation relating to
an individual is that the
claim of privacy is very
slowly eroded by time.
Unlike business
information, which often
ages quickly, information
about an individual has a
privacy aura throughout
his or her lifetime.
Similarly, the damage
that can be done by the
release of such
information cannot
normally be compensated
in dollars. Monsanto can
develop a new herbicide,
but it is not possible to
build a new reputation so
easily. Archivists must
always be cautious when
handling personal
information about living
individuals.
Exemption (b)(7),
Investigatory
Information
The federal Freedom of
Information Act and a
ma-jority of state FOIAs
have an exemption for
"in-vestigatory records"
that are compiled for
"law en-forcement
purposes." The federal
statute then goes on
to list six types of harm that may be caused by release, privacy test, and many of the decisions on exemption (b)
denominated A through F, and records that would cause (6) can serve as precedents here. In particular, the
any one of these types of harm may be withheld under Glomar and balancing tests are applicable, as are the
(b)(7). general principles that historical interest in the material
Before turning to the six tests, records must be de- may outweigh privacy interests in some cases (a par-
fined as investigatory in nature and compiled for "law ticular kind of balance) and that public information about
enforcement purposes." "Investigatory records" are the investigation or the notoriety of the individual
records "which reflect or result from specifically focused involved tend to weaken the exemption claim. Finally,
inquiries by an agency." These do not include records too, here as in (b)(6), time erodes the privacy claim very
relating to routine administration or oversight of federal slowly.
programs. The "law" covered by this exemp-tion The distinction between the language of (b)(6) "clear-
ly unwarranted invasion of personal privacy" and (b)(7)
includes federal civil and criminal statutes, statutes
(C) "unwarranted invasion of personal privacy" has
authorizing regulatory proceedings, and state and foreign
received a lot of attention. Briefly, the difference is
laws as well. "Law enforcement purposes," a series of assumed to be deliberate on the part of the Congress and
federal courts have concluded, can include either civil or to reflect the general opprobrium that surrounds the
criminal investigations, and civil investiga-tions can finding of a person's name in an investigative file. This
encompass administrative, regulatory, person-nel stigma in itself is held to be such that the burden of proof
background security, and similar investigations. On the needed to justify withholding is lower - hence the
other hand, general agency audits and reviews of itself omission of the word "clearly." The scales, in other
are held not to be within the meaning of this ex-emption. words, are weighted more heavily toward the privacy in-
terest in (b)(7)(C) than in (b)(6).'O
The first harm test, (A), is if the release of the records The privacy test in investigative case files has been
would "interfere with enforcement proceedings." This is used to withhold the identities of several different
very significant to the investigative agencies - and, categories of persons. One use is to protect the identities
consequently, has been extensively litigated - because it of persons who are not the subjects of the investigation
can be used to protect pretrial and on-going investiga- nor are confidential sources but are merely mentioned in
tions, identities of cooperative prosecution witnesses, the case file. This is an example of the theory that the
and strategy information, such as plans in prison crisis mere presence of an individual's name in a law enforce-
situations. It can also be used in certain circumstances to ment case file carries a stigma. The courts have general-
protect records of closed or dormant investigations if ly upheld such withhoIding, although in the case of La-
information in those files may be used in related future mont v. Department of Justice the court ordered
enforcement cases. Although it is technically possible disclosure of the identities both (1) of acquaintances of
that such records could be found in an archives (long- the subject of the investigation who were mentioned
term plans for protecting the chief executive are a possi- neither as FBI sources nor in a derogatory context and
bi1ity;for example) it is unlikely that there will be many (2) of persons who participated prominently in events
and this exemption is used rarely in an archives.69 that are part of the public record^.^'
Similarly, the second harm cited, (B), covers records A second major use of (b)(7)(C), often linked to the use
that will also be found infrequently in archival holdings.
of (b)(7)(D), is to protect fhe identities of persons who give
These are records that if released would "deprive a per-
son of a right to a fair trial or an impartial adjudication." information to law enforcement agencies in civil
The Department of Justice believes this exemp'tion is investigations not related to national security (criminal
directed 'toward protecting prejudicial publicity, which investigations and national security civil 'in- ' vestigations
makes its use in an archives even more . remote. No are covered by the (b)(7)(D) exemption). In these cases, if the
significant cases have tested the application individual named in the record is pro-viding information that
relates strictly to a formal rela-tionship with the subject of the
of (b)(7)(B). investigation (for exam-ple, landlord, employer, college registrar),
Exemption (b)(7)(C) allows the withholding of records the informa-tion can generally be made available, but if the in-
the disc10,sure of which could "constitute an un-warranted dividual goes on to express opinions, or if the relation-ship
invasion of personal privacy." This again is a between the individuals is informal, such informa-
"Baez v. Department of
Justice; Kelly v. FBI.
"Radowich v. U.S. Attorney;
Duffin v. Carlson, 636 F.2d 709
58 LAW
ments from the Joseph McCarthy era and, in the other, Exemptions (b)(8) and (b)(9), Financial Institutions and
documents that were twenty-seven years old.79In ar- Geological Information
chival terms, these time spans are the blink of an ar- The last two federal- FOIA exemptions are little
chivist's eye. Still, because of the longstanding relation- known and little used and neither has been reviewed by
ships apparently protected by the clause, it is quite con- the Supreme Court. The first of these, (b)(8), protects
ceivable that (b)(7)(D) information can be found in ar- information "contained in or related to examination,
chival holdings. Archivists should proceed warily in operating, or condition reports prepared by, on behalf of,
making judgments to release documents that contain in- or for the use of an agency responsible for the regulation
formation that appears to fall within the (b)(7)(D) pro- or supervision of financial institutions." The few courts
vision. that have interpreted this have viewed it as a broad
Test (E) in (b)(7) protects information that would exemption affording virtually absolute protection for data
"disclose investigative techniques and procedures." The that falls within it. One circuit court of appeals concluded
sensitive investigatory techniques included in this defini- that (b)(8) had two purposes, to "protect the security of
tion are those not generally known outside the govern- financial institutions by withholding from the public
ment and do not include such routine procedures as reports that contain frank evaluations of a bank's
fingerprinting, standard ballistics tests, and so forth. In liability" and "to promote cooperation and
some cases, it can be used to protect the very fact that a communication between employees and examiners."
particular technique was used in a particular instance. In Another court found that the exemption also was
a number of rulings, however, the courts have ordered designed to safeguard the relationship between the banks
the agency to describe the general nature of the and their supervising agencies. Within these sweeping
technique while withholding the details.80 Fortunately interpretations, a broad band of records can be withheld.
for archivists, by the time files arrive at an archives these One court even ruled that records could be withheld in
techniques will probably be sufficiently out of date that toto without sanitization (see Chapter 4), and another
this consideration can be waived. ruled that records relating to defunct banks could be
The final test in (b)(7) is whether the release of the withheld. Although the significance of this provision
records would "(F) endanger the life or physical safety of may become more apparent as the records relating to
law enforcement personnel." The most obvious cases bank failures accumulate, the case law is hardly
here are those where undercover agents are identified, sufficient at present to point the way for applica-tion in
but other persons can be considered for protection under the daily work of an archives, except to suggest that the
the exemption, including foreign, state, and local police, courts find the protection afforded by (b)(8) to be very
prosecutors, judges, parole and probation of-ficers, and broad.82
prison guards, among others. The Justice Department Exemption (b)(9) protects "geological and geophysi-
believes that, as in (b)(7)(D), no balancing test is cal information and data, including maps, concerning
required here. Again, the passage of time may lessen the wells." The provision has never been tested in court. Two
burden of applying this restriction, but with the cases relating to (b)(9) exist, but both were "reverse"
seriousness of the potential consequences, archivists FOIA cases contesting the propriety of discretionary
cannot be secure about releasing this information until disclosure not the applicability of the ex-emption itself."
natural, and not unnatural, mortality has taken its t011.~' Other Considerations
Most states have an exemption for law enforcement Although only nine exemptions are found in the
records, and the language of these exemptions may be federal statute, state freedom of information acts con-
broader than that of the federal statute. State law en- tain many other specialized exemptions. Perhaps the
forcement exemptions have often been litigated, and most common of the provisions found in state laws but
state case law may be available to guide the state or local not in the federal act are those covering tax return data
archivist. The state attorney general's office could cer- (it is a (b)(3) pass-through statute in the federal FOIA)
tainly provide up-to-the-minute information on the ap- and land value information. A number of states also
plication of these provisions. prohibit disclosure of licensing, employment, or
academic examinations, and a few protect information
-
on government procurement and bidding processes. The
79Diamondv . FBI, 707 F.2d 75 (2d Cir. 1983); Abrams v. FBI, 51
1 F. Supp. 758 (N.D. IL 1981). 8 2 A t k i n ~v.~FDIC,n 1 GDS 80,034 (D.DC 1980); Consumers
'OHayden v . CIA, No. 76-285 (D.DC 1980); Srassi v. Department Union of U.S., Inc. v. Heimann, 589 F.2d 531 (DC Cir. 1978);
of the Treasury, No. 78-533 (D-DC 1979); Malizia v. Department of Gregory v . FDIC, 631 F.2d 896 (DC Cir. 1980).
Justice, 519 F . Supp. 338 (S.D.NY 1981). B3"ShortGuide."
B"'ShortGuide."
ACCESS CONCEPTS 59
extent of any lawful Knowing the general
limitation im-posed on the lines of application of
remaining specialized material"; the explanatory the FOIA provisions, the question
state provisions are either text says that this remains as to the act's
unique to a state or shared exemption is incorporated relation-ship to
with only one other state, "to overcome the reluc- 84Bravermanand Heppler, exemptions and
thus limiting the "A Practical Review." disclosure requirements in
tance of many private a'Uniform Information
possibility of gaining governmental privacy
individuals to donate Practices Code, 1980 Handbook
insight into the mean-ing of the Na-tional Conference of and- sunshine acts. Again
personal papers or other
of a provision by looking Commissioners on Uniform the specific answers will
materials to the state for State Laws 149.
at applications and deci- depend upon the
preservation."
sions in other particular provi-sions of
jurisdictions. 8 4 The model law has
generated considerable the federal, state, and
One event that may local statutes. Some
opposition from groups
increase the uniformity of general observations can
that feel its real impact
state freedom of be made, however.
will be to reduce ac-cess
information and privacy At the federal level, the
to government records. A
laws is the July 1980 relationship between the
major problem is that the
adoption of the Uniform freedom of information,
model law defines a
Information Practices privacy, and sunshine acts
"personal record" very
Code by the National is complex. These three
broadly as "any item or
Conference of statutes were drafted at
collection of information
Commissioners on different times yithout
in a government record
Uniform State Laws. This specific reconciliation of
which refers, in fact, to a
code provides a model the various pro-visions, a
particular individual,
state law governing access situation that is generally
whether or not the
to public records, and it information is maintained true in states as well. This
contains twelve in in-dividually disharmony has resulted
exemptions from identifiable form." If in some contradictory
mandatory disclosure of information meets this court decisions, such as a
records. The government's vague test, the agency recent Federal Privacy Act
protectible interests are cannot disclose the case in which a judge
found in exemptions for information to any person ruled that the release of
materials relating to law other than the individual the name of an individual
en-forcement, deliberative to whom it refers unless who is the subject of an
proceedings, prelitigation disclosure is not a clearly investigation is not in
ac-tivities, licensing unwarranted in-vasion of itself an unwarranted
examinations, government personal privacy. Even invasion of privacy, a rul-
procure-ment, acquisition more seriously, whereas ing in direct contradiction
of property, and the the federal Freedom of t o the majority of
security of record- Information Act con-tains holdings on FOIA
keeping. Protectible a presumption that exemption (b)(7)
personal interests are government records are (C).86Fortunately, the
covered by exemptions for open, the model law turns Con-gress has now
proprietary information, that on its head for clarified the relationship
business and trade secrets, "personal records" and between the Federal
and records that identify requires a person Privacy Act and FOIA
an individual. In addition, requesting a record that privacy exemption, as
there is a pass-through contains the name of an mentioned above. Also
provision referring to individual to show why fortunately for the
federal and state laws and disclosure would be in the National Ar-chives, it has
to rules of evidence. public intere~t . an exemption from the
Perhaps the most unusual "~Archivists will want to most onerous burdens of
exemption permits the watch carefully if states the Privacy Act, obtained
withholding of "library, begin considering the in part by per-suading the
archival, or museum adoption of this model Congress that through its
material contributed by law. regular access policy the
private persons to the privacy of individuals
named in the records is and to insert them into the file;
more preferable, but more
protected. The National cumbersome, is to maintain a
Archives must, however, parallel file with these submis-
publish an annual notice sions and insert into the
original file only a cross-
of the systems of records reference, clearly marked as
in its holdings that generated by the Archives and
contain privacy not by the agency of origin,
leading the researcher to the
information and have parallel file.
for-mal rules for
managing those records.
One of the provisions
of the Federal Privacy
Act allows an individual
to request any agency to
"make any correction of
any portion" of a record
pertaining to him that he
"believes is not accurate,
relevant, timely, or
complete." Corrections
can range from adding
infor-mation to the file
to expunging
information from it. The
National Archives has
vigorously resisted
expunging records in its
custody, but at times it
has allowed in-dividuals
to submit a written
statement about the con-
tents of an archival
record maintained in the
National Archives, with
the understanding that
the submission would be
retained by the Archives
and made available to
any requester using the
files to which it
pertains."' More serious,
however, are the
expungements and other
cor-rections carried out
in agencies, some of
which the Ar-
'6Gough, ~ e n n e jand
Lebert v. FBI, F83-008 CIV
(D.C. AK December 1983).
"5 U.S.C. 8552a. There are
two possible ways to handle
such sub-missions: one is to
identify them clearly as
submissions after the records
were retired to the National
Archives (such as marking the
submissions with a stamp or
maintaining them within a
specially-marked envelope)
60 LAW
Arc hives
able to users on equal terms of access. This is in accordance with the standard
professional policy on access adopted jointly by the Society of American Ar-chivists
and the American Library Association. Equal access does not mean that all
materials are open to research use. It is the responsibility of the Archives to
balance the researcher'sneed for access with the needs for confidentiality of persons
and institutions whose activities are reflected
in the material. Consequently, the use of some materials in the
Archives, especially those of recent date, is subject to restrictions.
Two types of restrictions exist. Restrictions on access that apply to more than one
group of materials are termed "general restrictions." They are applicable to particular
kinds of information or designated classes of materials, wherever they may be found
among the holdings. The other kind of restrictions are known as "specific
restrictions." These are restrictions specified by the transferring agency or donor and
apply to a specific body of material, sometimes for a specific length of time.
Information about specific restrictions will be found in the accessioning dossier that
covers the body of materials to which the specific restriction applies.
The following is a list of the general restrictions that are applied to the materials
held by the Archives. These general restrictions are established
pursuant to (authority, such as an action of the Board of
Directors or a statute. If a single authority does not exist, a separate authority line
may be added to each of the restrictions as part (c).) of (date).
Alternative Paragraphs
The following elements or paragraphs may be substituted or added to the model
general restriction statement, as appropriate, to meet the needs of the archives.
General Restriction 1.
v. to researchers for the purpose of statistical or quantitative medical or
psychiatric research when such researchers have provided the archives with writ-ten
assurance that the information will be used solely for statistical research or reporting
and that no individually identifiable information will be disclosed.
Withdrawal Notice
In the review of this file the item(s) identified below has been withdrawn
because access to it is restricted. Restrictions on records in the Archives are
stated in general and specific restriction statements which are available for ex-
amination. Restrictions on donated materials are stated in instruments of gift
which are also available for examination.
I File Title:
Subject:
Authority for the restriction: (General Restriction Statement No. -, - Specific
Restriction Statement ; Donor's Deed of Gift, paragraph , provision
; etc.)
Researchers should
have access to the
information about the
return of records to the
holdings. One scholar
complained to an
archives about the
policy of returning
records without
maintaining a list of
returned items; the
practice, he said,
resulted in his having to
go through the body of
material in question
every year or so as he
worked on his book just
to see what else had
been re-leased. Either
maintaining a printout
of "recently re-leased
records" or placing a set
of the cancelled
withdrawal sheets in a
reference area
accessible to users or
maintaining an
"openings book" listing
releases will solve the
problem.
68 LAW
some cases, where the records have exceptionally high The Court's decision reflects concepts from the law of
interest, an annual list may even be prepared. Again, personal property, in which possession indicates owner-
ship and control unless another person has a better
electronic recordkeeping makes the maintenance of such claim to the property. Thus, a-strong presumption exists
lists a relatively simple matter. that when a record is in an agency's possession, it is an
"agency record" for FOIA purposes. This presumption
is not affected by the fact that an entity which is not an
Administration Under the Federal Freedom of
In formation Act agency may also have a copy of the record but . . . it
may be rebutted by other factors.'
Unlike the intellectual side of access, where the inter-
pretations of the federal Freedom of Information Act A growing body of FOIA law tries to define these
now set the standard for interpreting such common ar- "other factors" that tend to rebut the presumption of
chival concepts as privacy and business confidentiality, record status. If the records in question were obtained by
the administration of access under the act is peculiar un- an agency from the federal judiciary or the Congress,
to itself. The special problems include determining especially if there is clear evidence of intent not to relin-
which records are covered by the act, reviewing to quish control of the records at the time they were trans-
excise items of information within the document, ferred to the agency, they are generally nonrecord for
preparing lists of records denied and identifying for each FOIA purposes. A related issue that finds courts deeply
record the reason for the exemption, understanding divided is the record status of a document "jointly
appeal and litigation rights, and recording the process of possessed" by an FOIA-exempt and an FOIA-covered
handling requests. All of these are specialized problems, agency. Presentence reports jointly used by courts and
requir-ing substantially more detailed handling of parole commissions have been particular problems, and
requests for records than archivists employ if records not decisions have gone both ways.' In addition, materials
covered by the act are requested. Likewise, although which are physically located within the agency but
some state freedom of information acts are as stringent which are determined to be personal property are not
as the federal act, most are not, and archivists in each records for FOIA purpose^.^
state must determine what requirements exist for the It must be understood that just because a document
pro-cedural handling of FOIA requests. falls outside the reach of the Freedom of Information Act
it is not necessarily a nonrecord; judicial and con-
Coverage gressional documents, for example, are clearly records.
As discussed in previous chapters, courts have broad- It merely means that the provisions of the act cannot be
ly construed the coverage of the federal Freedom of In- used to gain access to that document.
formation Act. The act applies to records of agencies of
the executive branch of government, with some special
peculiarities for presidential records. Records of the
legislative and judicial branches lie entirely outside the
Torsham v. Harris, 445 U.S. 169 (1980); "A Short Guide to the
reach of the act. In that sense the coverage is very nar- Freedom of Information Act," Freedom of Information Case List:
row. It is broad, however, in its inclusivity for informa- Sepfember 1984 Edition (Washington: Government Printing
tion in executive branch records. In particular, courts Office, 1984) p. 40; McGehee v. Central Intelligence Agency, 697
F.2d 1008 (DC Cir. 1980) (records in the possession of the CIA but
have held that documents that originated outside an originated by the Department of State are "agency records" and
agency but are in the possession of an agency generally the CIA must review for release).
can be reached by the Freedom of Information Act. (This 'Goland v. CIA, 607 F.2d 339 (DC Cir. 1978) (congressional records
are not agency records); Carson v. Department of Justice, 63 1 F.2d
is an application of the "received" part of the "made and 1008 (DC Cir. 1980) (presentence reports by the probation ser-vice of
received" definition of records that ar-chivists normally the courts and transferred to the Parole Commission are reach-able
use.) under FOIA as agency records); Crooker v. United States Parole
Commission, 730 F.2d I (1st Cir. 1984) (jointly possessed presentence
On the troublesome question of records made with reports are not agency records subject to FOIA).
agency funds but not in the possession of an agency, the bPorter County Chap., Etc. v. United States Atomic Energy Com-
mission, 380 F. Supp. 630 (N.D. IN 1974); Wove v. Department of
Supreme Court has ruled on records of grantees but not Health and Human Services, 539 F. Supp. 276 (D.DC 1982), aff'd, 71 1
on the records of contractors. In the case of Forsham v. F.2d 1077 (DC Cir. 1983) (Reagan transition team report of the
Harris, the Court decided that grantee records that had Department of Health and Human Services, obtained by and in the
personal possession of a senatorial staff member who subsequently
not been obtained by an agency were not agency became an HHS employee, not part of the departmental files, and not
records: "an agency must first either create or obtain a used by the department is not an agency record); The Bureau of Na-
record as a prerequisite to it becoming an 'agency record' tional Affairs, Inc. v. Department of Justice, Civil Action No. 82-121 1,
U . S . Dist. Ct., D.C., November 29, 1982 (appointment calendar
within the meaning of the FOIA." Commenting on the existing only for the convenience of the author, not created at the
Forsham decision, the Justice Department con-cluded: request of the agency and not part of the official recordkeeping
program, is not an agency record).
ADMINISTRATION OF ACCESS 69
If the records are covered by the Freedom of Infor- the amount of time to spend on researcher requests and
mation Act, the act may still not cover the request. First the archives has met that test, that probably constitutes a
of all, the request must "reasonably describe" the reasonable effort.
records; for example, a request for "all records relating After the record is located, it must be reviewed, ap-
to the Second World War" does not meet that test. Sec- plying the tests of the exemptions. The federal Freedom
ond, the request may ask that records be compiled. of Information Act requires that an initial determina-tion
Courts have agreed that records must be furnished under be made within ten days of the receipt of the re-quest,
the act but do not need to be created; if a com-pilation and only three grounds are given in the law for a
does not exist, the archives does not have to create one.' justifiable extension: collecting records from physically
disparate offices, processing "voluminous" records in-
An FOIA request can be made by "any person." This cluded in the request, and consulting with another agen-
includes both U.S. and foreign individuals, partner- cy or another part of the same agency that has a
ships, corporations, associations, and foreign, state, or "substantial subject-matter interest" in the records. A
local governments. The requester does not have to state requester who does not receive an answer within ten
a reason for seeking access. days can go directly to court and sue for release of the
Approximately half of the state FOIA laws follow the records. In such situations the court will ask the govern-
federal model in matters of coverage. In New York, for ment to explain the delay and, according to the law, "if
example, the law defines agency and specifically ex- the Government can show exceptional circumstances ex-
cludes the judiciary and the state legislature, although it ist and that the agency is exercising due diligence in
implicitly covers the records of the office of the gover- responding to the request, the court may retain jurisdic-
nor. A recent New York court decision held that state tion and allow the agency additional time to complete its
possession of the minutes of meetings of private com- review of the records." The court may require periodic
panies was sufficient t o find that the minutes were reports of the progress that is being made in filling the
records covered by the act. Several other states tie FOIA request, and as long as it is satisfied that the review is
coverage to public funding, which greatly increases the going forward the court is unlikely to intervene further. A
scope of the application; the Arkansas Freedom of In- ten-day extension can only be used once per request by
formation Act, for example, covers any "agency wholly
the agency, either at the initial request or appeal stage or
or partially supported by public funds or expending
divided between the two; consequently, appeals offices
public funds." As mentioned above, some states also
usually want to be notified before an extension is taken
expressly cover local governmental entities within the
by the office handling the initial request because if the
scope of their freedom of information acts. In those
governments where the FOIA scope is partial, as it is in ten days are used on the initial request the appeals office
the federal setting, alternative restriction and access has no time flexibility at all if an appeal is made.
plans may exist for the records excluded from the FOIA Following the completion of the review, "any reason-
s ably segregable portion of a record" must be released. If
ambit (see Appendix 2 for a table of state FOIA cita-
tions). the entire document can be released, it is simply a matter
of notifying the researcher of the times and places of
Review Procedures availability and the price of copying. (If the document to
Having determined that the records are covered and be released is a classified document, the classification
are reasonably described and are extant, the next step is stamp must be voided and the document marked for
to locate them. Although there is no legal definition of release in accordance with the procedures specified in
what constitutes a reasonable amount of effort expend- the current executive order on classification.) If none of
ed on a search for requested records, courts have sent the information can be re-leased, the archivist turns to
agencies, notably the FBI, back to search records again the procedures for denials. But if some information is
if the court is not satisfied that the original search was releaseable and some is not, then the archivist must
adequate. If the archives has general policy guidance on answer the question of whether there is a "segregable
portion" of this document.
- - -
The question of what is a segregable portion has been
'NLRB v. Sears, Roebuck & Co . , 421 U.S. 132, 161 (1975); Krohn raised repeatedly. Two rules of thumb have evolved, one
v. Department of Justice, 628 F.2d 195 (DC Cir. 1980); Sears v. Gotts- called the "mosaic test" (based on a court decision), the
chalk, 502 F.2d 122 (4th Cir. 1974), cert. den. 422 U.S. 1056 (1975). other called the "swiss cheese test" (based on common
8 B ~ rAt . Braverman and Wesley R. Heppler, "A Practical Review of
State Open Records Laws," George Washington Law Review 49 sense). The mosaic test, also known as the "jigsaw
(May 1981): 723-760; In the Matter of The Washington Post Com-pany puzzle" and discussed on page 47, says that if the
v. New York State Insurance Department et al., No. 73, State of disclosure of a fact, although innocent of itself,
New York, Court of Appeals, March 29, 1984.
70 LAW
could serve as a "missing link" that would allow a per- allowed for response are ten working days counted from
son to patch together a mosaic of the whole, the fact the date of receipt of the request); (2) decision, with
should be re~tricted .This~ approach requires a good statement of exemptions used (if any); (3) statement of
deal of knowledge about the topic under review; in hours of service, availability of copies, and cost of
general archivists cannot be expected to apply more than reproductions; (4) notification of appeal rights (if records
normal knowledge to the implications that might be have been denied)."
drawn from the records. The swiss cheese test is the Included either within the denial letter or as a separate
other half of the question. Here the archivist must decide enclosure should be a statement of the deletions and the
whether, if all the restricted items are deleted, there is exemptions used as justification. Courts may require a
anything left that makes sense. Is it more holes than detailed exemption list, called a "Vaughn list" because
cheese? Worse, is what is left misleading? Ar-chivists the D.C. Court of Appeals first held that such a list was
cannot protect researchers against drawing er-roneous required in the case of Vaughn v. Rosen.12 If an FOIA
conclusions, but can only ensure that "sani-tized" case goes to court, the judge can order the agency to
documents (the FOIA jargon for those docu-ments that produce the documents for inspection and comparison
have had portions excised prior to release) are with the exemptions cited in the Vaughn list, or the court
adequately marked to indicate deletions. Yet if all that can appoint a special master to do the review. Two or
would be left after sanitizing is a scattered "he stated" or more exemptions can be cited for a single deletion (for
a "holding that," it is questionable whether the release is example, both (b)(6) and (b)(7)(C) for certain privacy
worth making. Pages have been released to users with matters), and if the (b)(3) "pass-through" ex-emption is
only the page number remaining at the top of the page; cited, the particular statute to which it refers must also
paying minimum copying fees for a "2" seems be cited.
unreasonable. The federal Freedom of Information Act provides that
The actual process of excision can be handled in a fees charged for document search and reproduction can
variety of ways. With paper documents, working from a be waived or reduced by the agency if the agency
copy, items that must be removed can be cut out with an determines that this is "in the public interest because
exacto knife, can be covered with an opaque white tape, furnishing the information can be considered as
or can be marked over with a special type of marking primarily benefiting the general public."13 Requesters
pen that will obscure the writing when recopied. Then often ask for this "fee waiver," as it is known. The Na-
the excised copy can be recopied onto paper, the excised tional Archives has chosen not to charge any fees for
portions marked with a stamp or by hand to indicate to search costs, believing that, as an institution dedicated to
the user where something was excised, and the recopied, providing those services to the public, search fees are
marked document is ready for release.I0 Records in inappropriate. Consequently, only normal copying fees
machine-readable format can be excised by electronic are charged and fee waivers are routinely denied, with an
means, as described above, and microform is a problem explanation that all search fees have already been
in any system of limited access. waived.
The act may also provide an exception to the general
De~als archival principle that if the records are released to one
If some or all of the records requested by a researcher third party requester they are released to all. The Justice
are to be denied to him (and this includes those released Department suggests that "the basic limitation on dif-
with deletions) a denial letter must be written. The law ferences of treatment in releasing an exempt record to
and the courts have made it clear that the burden of one person but not another is that the difference must
proof is on the agency to justify the withholding. This
means that denial letters are critically important to the
FOIA process, and they must be crafted with care.
Each FOIA response has four basic parts: (1) state-
ment of records requested, date of the requester's letter, "Technically the act is a freedom of information act, not a freedom
and date the letter was received (because the ten days of records one, but because in most instances the information sought is
embedded in documents, physical service of the records or copies of
the records is assumed. Each agency must publish in the Federal
Register the FOIA procedures it has established and the officials who
9Halperin v. CIA, 629 F.2d 144 (DC Cir. 1980) (mosaic test are entitled to make decisions for it on FOIA requests. Although it
applied to intelligence information). certainly is true that releases can be as potentially dangerous as
'OIf the documents to be excised are in a standard format denials, it is denials that are usually most carefully controlled, with
(such as a fill-in-the-blank form) and the restricted information only a limited number of officials empowered to deny records.
appears in a standard position on the form, it is possible to make "Vaughn v. Rosen, 484 F.2d 820 (DC Cir. 197?), cert. denied,
a paper template and place it on the copying equipment and then 415 U.S. 977 (1974).
lay the documents to be excised on the template. 135 U.S.C. $552 (a)(4)(A).
REFERENCE SERVICE 71
government for the impact of this policy is
be reasonable and not requester. slight. Administrative
unfair."14 (The mailing Administrative Records of the
list issue discussed in the Controls Archives
previous chapter is an Because the federal Governmental archives,
example.) In general, Freedom of Information '"'Short Guide." both federal and state,
archivists should be wary Act re-quires an agency must also remember that
of advancing these to make an annual the administrative records
arguments for differential report to the Con-gress of the ar-chives as an
treatment of requesters on its administration of agency also fallwithin the
without first seeking the act, careful controls provisions of the Freedom
advice of legal counsel. are maintained over the of Information acts.
disposition of the Unless the archives is an
Appeals independent agency, its
requests in hand. These
If records are denied controls, usually in the administration of the act
t o a requester, that form of logs, are keyed in terms of administrative
person can file an to the information (as opposed to
appeal at any time. The Congress requires, accessioned) records will
appeal is made to a which in-cludes such be guided by the policies
higher level official in things as the amount of of the parent agen-cy.
the same agency as the time spent on the re- This may result in the
official is-suing the quest, the number of archives administering the
initial denial. The extensions taken, the act in two rather different
federal Freedom of number of times an ways, depending on
Infor-mation Act exemption was used, whether the request is for
provides no time limit and so forth. FOIA administrative or
on the right to ap-peal, cover sheets in accessioned records.
although it sets a distinctive colors are
twenty-day time limit attached to incoming re- Conclusion
for an agency response quests as further Administering access
to the appeal. If, upon insurance that they will policy is based on two
appeal, the denial is not be buried in piles of prin-ciples: the public
continued, the requester routine requests. should know of the
has the right to bring The National existence of restrictions,
suit in federal district Archives has chosen to and the public should
court, either the D.C. treat as FOIA requests know of the existence of
court, the court for the only those letters that records that are restricted.
district in which the actually specify that the Most archivists do not
records are located, the request is being made like to withhold records;
district in which the under the aegis of the for the most part, the days
requester lives, or the act. The alternative is to of the secretive archivist
district in which the treat every routine who hoarded his trove a la
requester has his reference request as a Silas Marner are over.
principal place of FOIA request, which Instead archivists want
business. In making its would totally skew the users, want records open,
decision the court can statistics that Congress want records cited in
review the records in is trying to collect to publications. Ar-chivists
question in camera. If monitor the im- do not want to bother with
the court rules in favor plementation of the act. the picky procedures of
of the requester (the Because a requester can review and restriction.
FOIA language is that invoke the act a t any And yet in most
the requester must time and because the repositories some
"substantially prevail"), application of the restrictions are necessary.
the court can award restrictions is the same
both at-torney fees and whether or not the If an archives finds
costs to be paid by the request is filed under its restrictions of
the act, the actual records chal-lenged, its
best protection is to public is not admitted,
have been following a problems can arise in
well-defined, written defining who are
policy on the researchers eligible to use
administration of ac- the holdings.
cess. The archives must
be able to demonstrate
that its handling of the
materials was not
arbitrary and
capricious, that it has
been a responsible
custodian of the
materials entrusted to it.
Clarity and consistency
re-main the archivist's
best friends.
5 Reference
Service
Archival reference
service encompasses
five activities:
providing information
about the institution
and its records,
providing information
from the records, fur-
nishing the records,
furnishing copies of the
records, and loaning the
records. Each of these
activities may generate
legal problems,
although the most
serious and frequent
arise in the course of
providing the actual
documents.
Information about
the
Institution .. and
Its
Records
Providing information
about the institution is
usually quite simple:
where it is, what it holds,
what services it provides,
who can use it, and so
forth. But if the general
The archival ethic, expressed in the SAA-ALA joint tion covered by a freedom of information act, this
statement on access (see Appendix 1) is that archives restriction is probably impossible to maintain unless
will give equal access to records to all researchers. (The donated materials are exempted from the act. If the ar-
meaning here is equal access for all third party research- chives is in a privately funded school, the legal case is
ers - obviously, the creator of the item and the recip-ient less clear. (The restriction would be a breach of the ar-
of the item, parties one and two, have already seen it and chivist's ethic of equal access, however.) Assuming that
there is normally no point in barring their access to it.) the donor did not stipulate any general access policy, the
The thrust of the statement is that once an item is opened material is the university's property and access to it can
to one user it is open to them all. This does not mean, be limited. If the time period is sufficiently brief, it is
however, that an institution cannot set some criteria for unlikely that a legal action to compel opening would be
use. What the statement does suggest is that an heard by the courts in time to make any difference. A
institution should clearly define its users and then treat more serious issue might arise if a scholar outside the
them equally. university was completing a manuscript for delivery to a
Often institutions will refuse to allow minors to use publisher within the year and the donated materials were
original documents or will allow minors to use them on- directly pertinent to his topic. In such a case "right to
ly if accompanied by an adult. Explained in terms of work" might become an issue, but in that instance, too,
preservation, this policy is reasonable and may even be the archives would be better served by using a strategy
used in institutions whose policies are governed by the of conflict resolution rather than forcing the re-searcher
Freedom of Information Act if it is made clear that a to resort to legal measures. Whatever the final policy
minor will be allowed to work from duplicate copies decision is on restricted access for other than faculty
such as microfilm, microfiche, or electrostatic members, the policy must be clearly spelled out in
reproductions. ' informational handouts provided to all researchers.
A more difficult situation may arise when the institu- Another widespread problem is that of the authorized
tion limits access to "serious researchers," "scholars," or biographer. Almost every institution that accepts dona-
"qualified researchers." Here the problem is one of tions of personal papers will at sometime or other ac-
defining who is a "serious" scholar. A genealogist who quire a body of material which is restricted in whole or in
can find the information only in the holdings of that in- part, only to find that the donor has given a biographer
stitution? A college student writing a term paper? A permission t o use it all, even after it is in the custody of
congressional aide seeking information for a speech? the archives. If in the deed the donor re-served the right
Although in a private institution it is the right of the in- to authorize access, the archives has no legal choice but
stitution to limit access in any way it chooses, ad hoc to allow the biographer use of the materials (if the items
capricious determinations can lead to charges of are in "courtesy storage" pending, donation the donor
favoritism and unfair treatment.' Whether a lawsuit over retains complete control). If, however, the deed is silent,
exclusion by these terms (e.g., a determination that the the control of access can be assumed to be a right
applicant is not a "qualified researcher") could ac-tually transferred to the archives at the time ownership passes.
be sustained is untested, but an institution seeking to Once again, though, a direct confrontation is probably
apply such an access limitation should have a clear unwise. The archives might, for example, work with the
definition of the persons who fall within and without the donor or his heirs to open additional, materials to all
strictures and should make that definition publicly researchers, with the biographer given first reading after
available. The institution must also make every effort to opening.
ensure that the staff members who screen research ap- A similar problem arises when, researchers from agen-
plicants apply the policy consistently. cies come to the archives to use records that are restricted
Some college and university archives have been from general distribution. This is particularly important
pressured to limit access to new accessions, particularly when the records are classified for national security
of donated materials, to faculty members for a short reasons, but it also happens with other cate-gories of
period of time. If the archives is in an academic institu- restricted records. In addition, former officials sometimes
are granted access to the records of agencies in which they
~ o r k e dAll.~ of these situations can create
'Freedom of information acts normally require that the public
be given access to informalron but do not require that the public be
given the original document. Copies are generally provided to
fulfill FOIA requests. 'Access for former presidents and vice-presidents is legislated
'A private institution technically could discriminate against and codified as 44 U.S.C. 2205(3) and 2207; access to classified
categories of researchers based on race, gender, religion, and s o records for historical researchers and former presidential
fqrth; however, the institution would probably lose its tax-exempt appointees is found in E.O. 12356, 54.3; access for agency
status, federal and state grants, contracts, and accounts. historians is supplemented by an interagency agreement.
REFERENCE SERVICE 73
is the point at which the followed, it probably has
researcher must be no legal liability if the
misunderstandings alerted to the existence search fails to un-cover research of some parts of
among other researchers. of restrictions, if there references to every the holding^.^ The most
The infor-mation the are any, and to the relevant document. famous controversy over
repository provides to all practices the institution an institutional
Providing information
users should clear-ly employs in withdrawing publication project
about the records also in-
state that access to material. Generally the occurred in 1969-70,
cludes informing the
certain records is limited questions here are a oddly enough in a case
researcher of any
to those persons with matter of ethics, not law, where records were not
institutional publication
pertinent clearances or and the normal closed during
projects under way on
other permis-sions. procedure is that the ar- publication. In this cause
the materials in ques-
chivist will provide the cblkbre, a researcher
tion, especially if the named Francis
Occasionally prospective researcher publication involves the
questions have arisen with all pertinent, Loewenheim charged
closure to that he had not been
about hours of service. A relevant information.
Some archivists have given full ac-cess to
private repository can
worried about their records at the Franklin
normally set whatever
liability if a researcher is D. Roosevelt Library
hours it chooses or even
because the library was
open only by not led to all materials
using these materials for
appointment. Public that are relevant to his
a publication on Franklin
archives may have hours topic. Could they be
D. Roosevelt and foreign
of service established in sued if an important set
af-fairs. The complaint,
legislation, but more of documents is not
which was aired in the
likely the archives is shown? This is a hard New York Times,was
allowed to set its own question to answer in the
investigated by a special
schedule. Could a public abstract. Probably a
joint committee of the
body be sued to main- court would evaluate
American Historical
tain longer hours if it is whether the researcher
Association and the
only open, say, alternate had access to finding Organiza-tion of
Tuesdays? Or to have aids that were adequate American Historians.
some evening and to point him to the The committee
Saturday hours to materials in question; if concluded that "there
accommodate users who he saw the finding aids was no deliberate and
work a normal but did not ask for the systematic withhold-ing
workweek? Or to open materials, it is not the of documents from
all parts of the archives legal responsibility of Loewenheim." Although
for Saturday hours if one the archives to bring the the library was preparing
part has them? It is latter to him. The a publication, the
possible that such a suit problem then turns to the committee found that
could be brought, but the adequacy of the finding researchers continued to
success of the litigation aids. If the archives have access to the
would likely turn on why knows that the finding documents that were
the hours were aids are incomplete or being readied for
established as they were. otherwise inadequate, it publication. The
If the archives has not has a responsibility to committee did decide,
been capricious but assist the researcher in however, that the library
instead is open-ing its attemp-ting to locate should have been more
doors as frequently as its relevant materials. A diligent in informing
resources will permit, good faith effort by the researchers of the scope,
the suit would probably archivist, an effort that nature, and practices of
be dismissed. fulfills all standard the library's publication
Providing information internal procedures for pr~ject.~
about the records, reference service, is In addition to the
whether in writing, on required. If the ar-chives policy of closing
the telephone, or in can show that such materials while in final
person, is complex. This procedures were preparation for
publication, some 'Final Report of the Joint
AHA-OAH Ad Hoc
institutions not covered Committee to In-vestigate the
by a freedom of Charges against the Franklin
information act also have D. Roosevelt Library and
Related Matters
a policy of closing (Washington: American
materials until Historical Association, 1970).
arrangement and One result of the
investigation was the
description is completed, establishment of the
"closed pending permanent yoint committee
processing." Given the of the American Historical
Association, the
nature of processing Organization of American
backlogs in most ar- Historians, and the Society o
chival institutions, these f American Archivists.
backlogs can persist over
many years. The
researcher must be
informed that records are
closed under this policy,
for it may directly affect
his re-search strategy.
The question is whether
a lawsuit to gain access
to materials closed for
institutional ad-
ministrative purposes
could succeed. The
answer prob-ably lies in
a question of time. If
there is a reasonable
expectation that the
materials will be
available for research use
on a fixed date, a court
will be more favorably
inclined to the justice of
the archives' position
than if the closure
appears to be protracted
without a likely date for
opening the materials.
Furthermore, the nature
of the archival institution
itself - whether public or
private - and the nature
of the materials would
also be factors that the
court could consider.
While it is con-ceivable
that a public archives
could be required to open
adopted the practice of loans in the guise of sales, where use copies. If that fails, or if the amount of material re-
a researcher can buy a microfilm copy of documents and quested is too large to make copying feasible, the ar-
can keep it as long as necessary, but periodically (say chives should at minimum carefully document what
every six months) the researcher must check back with items are loaned and obtain a signed receipt from the
the archives and when he has finished using the film it borrower. The receipt should include the acceptance by
must be returned to the institution. If the records the borrower of the conditions of the loan, including
provided under such a loan provision are covered by a maintenance of the original order, prohibition of an-
freedom of information act, it would probably meet the notations or insertions into the files, specified storage
letter of but not the spirit of the act. For other records, conditions, the right of the archives to check up on the
such an agreement is certainly legal, and if the research- documents at any time during the loan, the procedure for
er agrees to it, it is enforceable. Enforcement is, handling researchers who come to the archives for
however, the problem. If the researcher does not return access to the loaned materials, and the fixed date for
the film, what are the damages to the institution? What return. Again, the ability of the archives to enforce these
price can be placed on research visits? Would the in- conditions is entirely a matter of internal per-
stitution be willing to pay court costs to bring a breach of suasiveness. Legally the documents remain within the
contract suit? Would an institution bar the researcher institution that is the legal owner, and as long as the loan
from further use of records? What if the researcher lives is documented the future legal interests in the documents
in another state or even in another country? are preserved.
Public archives often certify copies of documents in Loans to outside institutions for exhibit purposes are
their holdings, either for legal purposes or for the per- very different. Here the archives has the legal right and
sonal use of the researcher. This is very different from responsibility to protect the institution's property, and
authenticating the original document, for certifying a almost any conditions can be established, if the lender
copy merely assures subsequent viewers that it is an and borrower can agree. These loan agreements should
authentic copy of a document in the possession of Ar- be as complete as possible, for they form the basis of the
chives X. These certifications make no claim about the lawsuit if something should happen to the item while in
original, only about the copy. Assuming that the staff transit or on exhibit. The documentation should be suf-
members preparing the copies are entirely trustworthy, ficient to show the chain of custody of the item, i.e., who
there is little risk in providing such certifications. Courts is legally responsible for it at each stage of its ex-istence.
have repeatedly accepted certifications, thereby allow- The borrower should be required to obtain an insurance
ing the copies to go into evidence instead of the original policy for the value of the document, and it goes without
documents. At worst, the archivist performing the cer- saying that a document should not be loaned without
tification may be required to testify that this is a copy of retaining an excellent copy in the ar-chives. A sample
a document in the possession of the archives. loan agreement from the National Ar-chives is found in
Appendix 3; others are found in the forms manual
Loans published by SAA.
The final type of reference service is furnishing A variation on the loan problem is the transfer of
original documents on loan. Loans are most commonly original archival materials to another organization for
requested either within the government or institution for conservation or duplication. Once again the exchange of
research purposes or outside the institution for exhibi- physical property should be documented thoroughly,
tion. (Occasionally archives are asked to loan original with the recipient agreeing in writing to abide by the
documents outside the institution for research purposes, terms and conditions established by the archives.
such as through the interlibrary loan program, but ex- Because the transfer may be for purposes of transform-
cept for copies of oral history transcripts, such requests ing the physical character of the item, the transfer docu-
are usually denied because of the risks of loss in transit.) ment should either refer to the contract under which the
Requests for loans within the institution, normally back work is being done or recapitulate the specific terms of
to the office of origin or its successor, are difficult to the contract.
deny, given the internal nature of the transaction. Ar-
chives, whether private or public, have no legal standing Conclusion
to deny such requests, and the ability of the archives to The basis of reference service is the transfer of infor-
prevent wholesale loans is dependent primarily upon the mation in either original, copy, written or oral format from
status and authority of the archives within the institu- the archives to the researcher. Transfer, especially if
tion. Most archives try to persuade intrainstitutional re- physical property is involved, always involves risks, and the
questers to use the material in the archives facilities or to purpose of the law is to provide a framework
COPYRIGHT AND THE ARCHIVES 81
Times to Authors and o
d
Inventors the exclusive e
within which such risks Right' to their respective , assume that all the
can be undertaken. The Writings and holdings of an archives
real question for an Discoveries." It did not i
T are subject to the
archives is not whether take long for Congress to t copyright protection
legal respon-sibility for exer-cise this power. As l afforded by the new act.'
use of the records can be e This chapter will
early as May 31, 1790,
placed on the user, but Congress passed the first 1 highlight the significant
rather whether the costs of copyright act "for the 7 parts of the act, discuss
recovery are worth encouragement of . fair use and copying,
bringing legal action. learning, by securing the ' outline the potential
The foundation for the copies of maps, charts, 1 financial losses an
recovery of damages from and books to the authors 7 archives can suffer for
a user is documentation and proprietors of such violation of copyright,
showing that he or she copies, during the times .
U and offer some solutions
was in-formed of and therein mentioned."' The S to fair use and copying
agreed to the rules of the nearly two hundred years . problems in the form of
institution, whether with C an "archivist's loop-hole."
since the first copyright .
respect to handling Finally some specific
act have seen numerous
original materials, making copyright problems will
amendments and revisions $
and distributing copies, or be identified and
to the copyright law; the 10
exhibiting archival items. addressed.
latest, on October 19, 2
Providing reference 1976, was a total revision (
service, like the records a The Act
of the act.' )
themselves, is The revised act, which . The Copyright Act bf
fundamentally about became effective '17 U.S.C. $101; 17 U.S.C.
on $117; 1976 changed the time
documenting the ac-tions Apple Computer v.
copy-right protection
January 1, 1978, provides Franklin Computer Corp., 714
at every step of the begins (or "attaches"),
copyright protection to F.2d 1240 (3d Cir. 1982); Tandy
process. With good Corp. v. Per-sonal Micro
changed the duration of
literary, musical, and Computers, Inc., 524 F.Supp.
documen-tation, potential copyright, made
legal problems can be dramatic works; pictorial, 171 (D.C. CA 1981).
graphic, and sculptural registration optional, gave
minimized or resolved
works; pantomines and the owner of the copyright
without resort to lawyers
choreographic works; and certain exclusive rights,
and courts. That
sound recordings, motion and provided for
avoidance should be the
pictures, and other audio- limitation on the exclusive
goal of the archives.
visual works.' A further rights. Ex-amination of
revision in 1980 extended the new copyright
copyright to cover practices requires an
computer program^.^ It is understanding of previous
- - -
copyright methods. Prior
6 Copyright and
safe to
to 1978 unpublished
the Archives '1 Stat. 124, $15. Copyright materials were protected
by definition is a limited by common law copyright
monopoly granted by the under the laws of the
sovereign to the creator of a
Rewarding creativity work. individual states. At
by recognizing and ' common law a n author
U
protecting the property n had a property right in his
rights of the creator in the i manuscript and the
item created has long t
e
exclusive right to copy the
been public policy. In d manu-script until he
Article I, Section 8, of the permitted general
United States S
l
publication (this was also
Constitution, Congress is a known as literary property
given the power "to t right). This right was
e
promote the Progress of s perpetual and passed by
Science and useful Arts, inheritance to heirs so
by securing for limited C long as the work remained
unpublished. Upon creator. Similarly, private letters
to the government and found in
publication the manuscript the government's files retain
was protected only if it private copyright.
contained a notice of "7 U.S.C. $301 et. seq.
copyright and was
registered with the U.S.
Copyright Office. All of
this has changed. As of
January 1, 1978, any work
created is automatically
copyrighted when created
and all rights under
common law or state
statutory law are
preempted by the new act.
Now publication is no
longer the key to
copyright protection and
the copyright act provides
the exclusive copyright
protection.
The duration of
copyright protection has
also changed, from
twenty-eight years plus
one renewal of twenty-
eight years to the life of
the author plus fifty years.
The act established
various key dates and
terms of years for
copyright protection,
depending on whether the
work was created,
published, or copyrighted
before January 1,
1978.6Of primary
importance to archivists is
the provision that works
created before January 1,
1978, and not previously
copyrighted nor in the
public
domain are now protected by the life plus fifty years son who created the item or a person to whom the
rule, but in no event does the protection expire before copyright has been formally transferred does the donor
December 31, 2002. That means, for example, that an own the copyright. Archivists also cannot assume that a
unpublished letter by W. C. Fields is protected by phrase in the donor's deed giving the archives 6'all
copyright until the end of 2002, even though the life plus copyright in such of the materials as are unpublished"
fifty years rule would have made it available in 1996 (he covers all the materials in the donation. A donor can on-
died in 1946). ly transfer such copyright as he holds, and he clearly
Under the new act, when a work is published a notice does not hold, for example, the copyright in a letter he
of copyright must be placed on all copies but registra- received, except in the unlikely event of specific
tion with the Copyright Office is not required. There are copyright transfer from the letter-writer. '
provisions regarding corrections for the omission of the The reverse is also true, that transfer of the copyright
notice and copyright is not automatically lost if correc- does not transfer the ownership of the physical object.
tive action is taken. However, before a suit of infringe- For example, an archives may own a letter in its collec-
ment can be brought and before statutory damages or tion but not hold the copyright to it, and the copyright in
attorney's fees can be recovered, the work, whether the letter may be passed, say, from one family member
published or unpublished, must be registered.' (The to another by recordation but without any notice to or
significance of this requirement will be discussed in the withdrawal of the letter from the archives.
third section of this chapter.) Finally, copyright does not protect ideas; that is the
Finally, the act, subject to certain exceptions, gives a role reserved for the patent laws. Copyright merely pro-
number of exclusive rights to the owner of the copy- tects exact, unique expression of an idea. Nor does
right.8 These include the right to copy, publish, transfer copyright restrict access. Copyright restricts copying and
ownership, or prepare derivative works and, in the case certain types of use, such as performance of a play, but
of some works, display the work publicly. To exercise not simple viewing or hearing.
his right to transfer the copyright, the owner must docu-
ment the transfer in writing and sign the transfer docu- Fair Use and Archival Reproduction
ment. The transfer of ownership may be recorded in the
Copyright Office and is, therefore, often referred to as The copyright rules are strict and permit no copying
"recordation." No infringement action can be brought by unless the archives owns the copyright. Congress,
the new owner until the transfer instrument is record- however, enacted two important exceptions to these ex-
ed.9 clusive rights of the copyright owner. To archivists, the
Since all works are now automatically copyrighted most important of these exceptions are fair use, covered
upon creation (often described as "from the moment you by Section 107 of the copyright act, and reproduction by
lift your pencil"), the archivist must presume that, unless libraries and archives, covered by Section 108.12The ar-
the copyright has been donated or sold to the ar-chives, chival implications of fair use and reproduction by
every item in the holdings that comes from a nonfederal libraries and archives can be understood thoroughly only
source is copyrighted and reproduction could be an by first examining the concepts separately and then
infringement of the copyright. Ownership of the seeing how they relate to each other.
copyright is not the same as ownership of the physical $107 Fair Use
object. Transfer of the physical object of the work does The common law doctrine of fair use was developed
not transfer ownership of the copyright because a by the courts to shield some forms of copying from the
specific transfer of the copyright by the owner of the literal implications of the former copyright act. Over
copyright is required. In other words, merely donating a time the doctrine of fair use had been tailored to balance
letter to an archives does not transfer copyright. A the public's right of access to knowledge of general im-
specific provision must be included in the transfer portance with the author's right to protect his intellec-
instrument if copyright is to pass from donor to archives. tual creation. When writing the new copyright act, Con-
lo
The presumption cannot be made that the person gress decided to codify the existing judicial doctrine of
donating the letter (for example) to the archives owns fair use. Section 107 provides that fair use of a copy-
the copyright to that letter. Only if the donor is the per- righted work "for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for
'17 U.S.C 5411-412; Burns v. Rockwood Distributing Co., 481 classroom use), scholarship, or research, is not an in-
F.Supp. 841 (D.C. IL 1979). fringement of copyright." To determine whether a use
'17 U.S.C. 5106. 917
U.S.C. 5205(d). 117
U.S.C. 5202. "17 U.S.C. 5201(d).
"Other limitations on exclusive rights are found in 5109-118.
COPYRIGHT AN13 THE ARCHIVES 83
the creative ability of For an institution to copy
others. The inquiry is a work without in-
is a fair use, the section necessarily a flexible fringement, the institution
specifies four factors to be one, and the endless (1) must be open to the
variety of situations I3Sony Corporation of
con-sidered: (1) the America v. Universal City public or open to
that may arise
purpose and character of precludes the Studios, 52 LW researchers in a
the use, in-cluding formulation of exact 4090, 4106 (1984). specialized field, (2) must
whether such use is of a rules. But when a user not be copying for a
commercial nature or is reproduces an entire commercial purpose, and
work and uses it for its (3) must in-clude a notice
for nonprofit educational original purpose, with
purposes; (2) the nature of no added benefit to the of copyright in the copies
the copyrighted work; (3) public, the doctrine of produced.14 Furthermore,
the amount and fair use usually does the institution's copying
substantiality of the not apply. There is activities cannot be part of
then no need a concerted or systematic
portion used in relation to whatsoever to provide
the copyrighted work as a the ordinary user with
copying of works;
whole; and (4) the effect a fair use subsidy at however, isolated and
of the use upon the the author's expense.') unrelated copying of the
potential market for or Thus, making a copy of a same material on separate
value of the copyrighted document for a researcher occasions is permitted.
work. Although these is almost always Section This means, for example,
factors are clear and 107 fair use because it is a that the archives cannot
simple to state, they pro-ductive use as defined reproduce five hundred
provide no easy formula t in the law, and the copies of a copyrighted
o determine what is fair reproduction is not for its letter with the intent of
use. Each use of original purpose but for selling them by mail. It
copyrighted materials further work of added does not prohibit normal
benefit to the public. systematic microfilming
must be tested against all
for preservation and
four factors. $108 Archives and
reference purposes.
Faced with a copyright Library Copying
question a court will Having met tests 1, 2,
In order t o assist and 3, an institution can
balance the use against the libraries, archives, and
factors t o determine copy certain works (as
scholars, Congress noted below) at any time
whether the use is fair
enacted Section 108, if the pur-pose is
use; there is no set
"Limitations on ex-clusive preservation, security, or
formula. There is a
rights: reproduction by replacement of the work.
require-ment that the new
use be a productive one libraries and archives." An unpublished work can
such as criticism, Where Section 107, fair be copied for preserva-
comment, news reporting, use, applies t o everyone tion or security purposes
teaching, scholar-ship, or copying a work, Section within the institution or
research. As stated by 108 applies only to a for the deposit for
Justice Harry Blackmun library or an ar-chives research use in another
in his dissenting opinion copying a work. Section institution that is either
in Sony Corporation of 108 provides many stan- open to the public or open
America v. Universal dards t o govern copying to researchers in a
City Studios: and is a confusing attempt specialized field.15
The fair use doctrine to specify when copying Published works can be
must strike a balance by a library and archives copied for the institution
between the dual risks is per-missible. (Sections itself or for another
created by the
copyright system: on 106, 107, and 108 are research institution to
the one hand, that reproduced in Appendix replace a damaged,
depriving authors of 4.) deteriorating, lost, or
their monopoly will Even though Section stolen work if an unused
reduce their incentive 108 is difficult to replacement cannot be
to create, and on the
other, that granting interpret, ar-chivists need found at a fair price.I6
authors a complete to understand basically Copying of musical
monopoly will reduce how it permits copying. works," pictorial, graphic,
or sculptural works or copyright. If the archives is not
sure that the material is
motion pictures is copyrighted it should put in a
permitted only under notice with as much informa-
these provisions for tion as it has and a warning that
the material may be copyrighted.
preservation, security, or "17 U.S.C. 108(b).
replacement of the work. "17 U.S.C. 108(c).
Different provisions "17 U.S.C. 108(h). A
"musical work" is the sheet
apply for copying a music, not the sound
work for a user (an recording.
institution at times can
be a user, too). If a user
requests an institution to
copy a work and provide
the copies to him, before
proceeding to copy the
institution should have a
reasonable belief that
the copy will be used for
private study,
scholarship, or research.
The notice shown below
must be posted at the
place where the
institution accepts copy
orders; it must as well
be placed on any order
form for copies.
N
O
T
I
C
E
WARNING
CONCERNING
COPYRIGHT
RES
TRI
CTI
ONS
The copyright law
of the United States
(Title 17, United
States Code) governs
the making of
photocopies or other
reproductions of
copyrighted
material.
I Is work
published?
1 NO
I
4
Is purpose preservation, security,
or deposit in another institution
for researcher use?
I 1 NO - 4 See Figures
8. & 9.
I
Yes
.- \I/
Is purpose to replace a No Would copy be No Infringement;
damaged, deteriorated,
> Section 107 ) damages are
lost, or stolen work? fair use? possible.
I
1
Yes
I Yes
Is an unused replacement MAKE COPY!
available at a fair price?
1 Yes
\I/
>
Would copy be No Infringement;
i"
Figure 7
MAKECOPY!
l
to either the actual Copyrights, and if the
damages and profits or archives infringes on the
the statutory damages, copy-right, the owner of
the court may also award the copyright can only
the recovery of the costs recover his actual
of bringing the lawsuit, damages plus the profits
including reasonable at- of the archives. No
torney's fees, to the statutory damages or
prevailing party. attorney's fees would be
There are, however, allowed because the
limitations on the copyrighted item was
recovery allowed. No suit not registered at the time
for infringement can be of the infringement. In
instituted until the work is most cases, the archives
r e g i ~ t e r e d would have received no
.Furthermore,~~ upon profit for making a copy
registra-tion, no statutory and ac-tual damages
damages or attorney fees (what the copy would
can be recovered for any have been sold for)
infringement of a n would be nearly
unpublished work impossible to prove.
occuring before Thus, if a n ar-chives
registration: only actual follows the procedures
damages plus profits of outlined above in the
the infringer can be discussion of Section
recovered. This scheme of 108, it is doubtful that it
damage recovery leads us will be sued when the
to the "archivist's owner of the copyright
loophole." can recover very little if
If the archives anything.
contains mostly
unpublished materials This conclusion brings
that have never been back the advice from
registered with the Chapter 2 on deeds of
Register of gift for donated
materials: always obtain
the copyright. Then the
"17 U.S.C. 841 {(a). archives can make
copies and,
86 LAW
No Infringement;
damages are
possible.
v
Machine has Yes
printed warning? MAKE COPY!
No
v
Would copy be Yes
Section 107
> MAKECOPY!
fair use?
No
v
Infringement;
damages are
possible.
Figure 8
by putting the notice of In sum, archivists must
copyright on the copies, recognize the difference
restrict the number of be-tween access and
copies made by the copyright. If there are no
recipient. If the ar-chives access restrictions, a
owns the copyright, it researcher can always
can never be successfully have access to
sued for infringement. copyrighted material. It
For those items that were is only when the
donated but for which the researcher wants a copy
donor does not hold the that the rules on copying
copyright (all his arise. If the copy request
incoming is a Section 108 copying,
correspondence, for a copy can be made; if
exam-ple) the archives not, then the copying
must follow the rules for must be a Section 107
copying. fair use copying. Section
If an archives is 107 is the best support to
located within the allow copy-ing for
institution whose records research purposes. All of
it holds, the institutional this requires a respon-
records are copy-righted sible archivist who
by the institution and knows that is being
can be copied by the ar- copied, for whom, and
chives in accordance for what purpose.
with institutional policy.
(Natural-ly, the Special Problems in
institituion does not hold Copyright
the copyright on in- Many questions on
coming correspondence copyright can arise daily
from private sources and within an archives. These
the ar-chives must
questions usually revolve
follow the copyright
around what copyright
law's general rules for
the archives can hold by
copying those
virtue of its creative
documents.) In addition,
activity and what
if an institution holds
copyright researchers can
records of the United
States or copies of such hold in the documents in
records, these can also the custody of the
be copied at will because archives.
the law specifies that
they cannot be
copyrighted.
COPYRIGHT AND THE ARCHIVES 87
User Requests Copy of Copyrighted Item -
and Wants Institution to Make Copy
-
Is the work a
musical work, a
>
Yes Would copy be
pictorial, graphic
or sculptural
work, or a motion
picture or other Section 107 MAKE COPY!
audivisual work?
fair use?
No
v
Infringement; No
No
damages are <
possible.
V
Is requested
copy of an
entire work
or a substantial
portion of a work? Can copy be
>
Yes Yes Would copy be Yes
obtained
) elsewhere at Section 107 MAKE COPY!
A fair use?
a fair price?
No
v
No Will copy become Printed warning
property of the Yes > on institution's
) user and be used
order form?
for private study?
No
v
No
> Would copy be
Section 107
yes
fair use?
N 0
V
Infringement;
damages are
possible.
Figure 9
88 LAW
the copyright has reproduction, however,
expired). The does not involve all
Copyright of Facts organization of the public domain or all private documents.
The first question is documents on the film, if Instead the microfilm
original, can be "Miller v. Universal City normally is a mix of
whether facts can be Studios, Inc., 650 F.2d 1365
copyrighted. Although copyrighted, as can any (5th Cir. 1981); Suid v .
public domain
there is a split in authority accompanying Newsweek Magazine, 503 documents and
in cases addressing this pamphlets, notes, or Fed. Supp. 146 (D.DC 1980). documents whose
"Harper & Row Publishers,
issue, the better reasoned editorial remarks. Inc. v. Nation Enterprises, copyright is held by
view is that one cannot However, some-one 723 F.2d 195, 205 (2d Cir. private citizens, or
could take one or more 1983). private docu-ments
copyright facts discovered
in the course of of the documents and produced by the
research.24 The reason reproduce them because institution of which the
for this is obvious when the documents archives is a part and
considered in the context themselves are in the documents whose
of the copyright act. The public domain - the copyright is held by
purpose of the act is to person could not just private citizens. Can the
provide financial repro-duce the entire archives film and sell?
incentives to those adding work, for that would Can a researcher
to the body of existing violate fair use. This uniquely arrange and
knowledge by creating an means that if the copyright such mixed
original work. The act archives is requested to films? Here is where the
does not force others to prepare a microfilm of a archivist's loophole
obtain the facts and do the body of records, filmed comes into play. Even if
in the order in which the the archives does not
research independently;
archives has arranged hold copyright in the
the act instead allows a
them for general public items filmed, it is likely
subse-quent researcher to
use, the archives can that the items are not
build upon the prior work
keep a copy of the registered, making
without unnecessary
microfilm and sell all or monetary penalties for
duplication in order to
create a new original part of it to others - the the reproduction and sale
work. The caveat is that arrangement is the of the film remote. It
the new work must be archives' not the also means that so long
truly new and cannot be a requester's. A more as copyright is asserted
mere paraphrase of the difficult case would arise in the organization of the
prior if a researcher wants items and the
Thus, the thrust of the records filmed in a cer- explanatory texts but not
act is that facts are freely tain logical order. There in the items themselves,
avail-able and cannot be may be enough copyright can be
copyrighted. originality in the defended. So the answer
arrangement of the remains that an archives
Copyright and documents that the can film and sell and, as
Documentary requester can copyright long as it is not the
Publication the arrangement and the National Archives,
Even though facts archives may not sell a copyright its film. The
cannot be copyrighted, copy of the uniquely answer to the researcher
the organi-zation of facts arranged microfilm to is that he can uniquely
can. Furthermore, the others. Of course, if the arrange and copyright
organization of archives is a private one the films made of a mix
documents can be and holds the copyright of public and private
copyrighted as well. to the documents being docu-ments, so long as
Take the case of a microfilmed, it can re- he does not attempt to
microfilm publication of quire as a condition prior copyright the documents
documents in the public to microfilming that it be themselves.
do-main (such as allowed to retain a copy
documents created by and sell it to others. Oral History and
the federal govern-ment The most common Copyright
or documents on which case of microfilm
Oral history interviews can copyright the words
are a unique copyright of interviewers. Private
prob-lem, since it is only organizations can copy-
through the intervention right the words of the
of the inter-viewer that interviewer if they wish
the interviewee's words to do so. Under what
are recorded and it is only circumstances a federal
that capture of the exact employee being
sequence of words that
makes the copyright
I6Suid v . Newsweek.
possible. Oral history
"Harper & Row v . Nation.
tapes and transcripts
present a problem as to
who has the copy-right t o
an oral history interview:
the interviewee or the
interviewer? Generally,
the interviewer and the
inter-viewee each hold the
copyright to their own
words; a single oral
history tape or transcript
embodies two copy-
rights.16Of course, if
either the interviewer or
the inter-viewee is
relating facts or words
spoken by others, they
cannot copyright that
portion of their spoken
words.27 For this reason,
when the interviewee is a
public figure, most of his
words may not be
copyrighted.
The general rule on
who holds the copyright
to an oral history
interview has some
exceptions. As noted
previously, the United
States cannot copyright a
work, so in the case of an
oral history interview
prepared for the United
States, either by an
employee or contractor,
the interviewer's words
can not be copyrighted.
This may also be true for
another public
organization such as a
state archives if the state
legislation does not
permit the archives to
hold copyright or waives
copyright generally;
otherwise, state archives
SPECIAL PROBLEMS 89
evidence changed the
Archivists occasionally common law tests of
interviewed can claim existing documents authenticity. These new
copyright in his words is are faced with problems could be authenticated.
that are not uniquely rules, adopted in 1975,
unclear, although it is A key ques-tion in now govern the
the position of the archival in nature but are authenticating
prob-lems nonetheless. admissibility of
Society for History in documents was in evidence in federal
the Federal Government These problems relate to whose hands the
conflicts over the courts. *
that an off-duty documents had lain.
perceived necessity of The rules first make a
employee or one who is For the royal
having the original docu- bow to the best evidence
not in normal job status government, the
ment rather than a copy. rule and require that the
can retain copy-right. In easiest demonstration
The first part of this original of the writing,
most cases the that a governmental
chapter discusses recording, computer tape,
nonfederal interviewee document was
continuous custody and or photograph be produced
will have copyright in authentic was to show
whether a copy of a in legal pro-ceedings.'
his words and the that it had been written
document is legally What the rules first require
archives should seek the by a government
sufficient. The second they then take away by
transfer of his copyright official and thereafter
part of the chapter allowing the admission
to the archives. had been officially
addresses the issues into evidence of a
Remember that the maintained by the
surrounding the recovery duplicate so long as there
transfer must be government. This is
of an original document is no genuine question of
recorded; without the root of the English
that has strayed from the the authenticity of the
recordation the archives archival concept of
ar-chives. Both parts ask original or no unfairness in
could not bring a suit for continuous custody
the question, "Would a admitting a d ~ p l i c a t
infringement if some which argues that if a
copy be sufficient?" eThus.~ carbon copies,
other institution or document is to be of
microfilm copies, and
organization uses the archival quality it must
words of the interview.
Custody and electrostatic and
have an unbroken
Authentication photostatic copies of
chain of responsible
writings and recordings
Conclusion In England, from about custodians. ' such as charge card
Copyright problems the thirteenth century on, The United States receipts, purchase orders,
can be complicated. nobles and laymen and adopted the common checks, and passports are
Archivists must learn to even some peasants law from England and routinely adrnis~ible.~
recognize copyright documented their with it the practice of Most importantly, the
problems when they transfers of property authenticating original is never required if
arise; however, because through use of written documents for use in the original is lost or
they can involve complex charters (essentially legal proceedings. A de~troyed .Thus~ originals
issues, self-diagnosis and deeds). Curiously, common law concept can be microfilmed and
medication is not England did not that directly affected destroyed and the
recommended. Upon simultaneously develop questions of microfilm copy would be
spotting a potential the notarial system on the authenticity is the admissible as if it were the
copyright problem, seek Roman model, where "best evidence rule," destroyed original.
pro-fessional assistance each document was which basically says The practice of using
precisely dated and that the original
from a lawyer. And do it a copy instead of an
written by an authorized document is the best
promptly, especially if an original is further
scribe or notary who evidence. The reason
infringement is bolstered by the rules on
registered a copy of the for the rule is that
suspected: copyright authentication.
document in a record kept copies of documents
colds can quickly turn 'M.T. Clanchy. From
by a public authority. were originally made
into pneumonia.
Instead, as documents by hand and there was Memory to
proliferated, questions a substantial question Written
about the authenticity of of the accuracy of a
- some of the charters arose human-hand copy of Record:
and legal problems an original. The advent
-
1066-1307 (cambridge:
Problems whereby the modern rules of Harvard university Press,
1979), pp. 38, 48-53, 120- 90 hearsay, i.e., an out of
125, 232-236.
2Most states have LAW court statement made
similar rules, but for ease by someone other than
of distinction only the the witness that is
federal rules will be
discussed. Authentication is the introduced for the
'$1002, Federal process to determine truth of the state-
Rules of whether the item sought ment." (A writing is
Evidence
(hereafter Fed. to be introduced as considered a statement
R. Evid.) evidence in a legal pro- for the pur-poses of
'$1001(4) and ceeding is authentic, i.e., the hearsay rule.)14
1003, Fed. R.
Evid.
it is what the party The reason for the
'U.S. v. Rangel, 585 seeking to introduce it hearsay rule is the
F.2d 344 (8th Cir. 1978); claims it is.' Perhaps the principle of American
CTS Corp. v. Piher easiest way to jurisprudence that the
Intern. Corp., 527 F.2d 95
(6th Cir. 1975), cert. den. authenticate an item is to witness must be in
424 U.S. 978; Williams v. have a witness state that court so that the truth
U.S., 404 F.2d 1372 (5th it is what it is claimed to of his statements can
Cir. 1968), cert. den. 394
U.S. 992; Myrick v. U.S., be.8 Public records or be tested under cross-
332 F.2d 279 (5th Cir. reports that are recorded examination. With
1964), cert. den. 377 U.S. in a public office or kept hearsay, one cannot
952; U.S. v. Benedict, 647 examine the maker of
F.2d 928 (9th Cir. 1981), in the public of-fice
cert. den. 454 U.S. 1087. where they should be the state-ment.
'$1004(1), Fed. R. Evid. kept will also meet the But just as there is a
authen-tication test.9 hearsay rule, there are
Further, a certified copy also many exceptions
of a public record is to the rule; so many, in
presumed to be fact, that one may
authentic.1 question whether there
Of special importance really is a hearsay rule
to archivists is the at all. The exceptions
ancient document rule. most important to an
(Do not be thrown off by archivist are those af-
the word "an-cient"; it fecting records of
means that the document businesses, public
has been in existence for bodies, religious
more than twenty organizations,
years.)" The families, and ancient
requirements of the records (over twen-ty
ancient document rule years old).I5 The
are that the document (1) reason for these
is over twenty years old, exceptions is that
(2) appears authentic, years of experience
and (3) is found where i have shown that all of
would be expected to be these records have a
found.I2 high degree of
!
A do ument having
reliability.
The records of a
been shown to be business are
authentic is not admissible even
necessarily admissible; though they are
the document must still hearsay if it is shown
be rele-vant and not be by one with
hearsay. Normally a knowledge that the
document is intro-duced record was made
to get into evidence the routinely as part of the
contents of the prac-tice of the
document. A document business. The
is a classic example of
custodian of the way in which the records were tion papers;16in the 1960s
documents or created and maintained. the case involved Spanish
Records kept together, and Mexican documents
a knowledgeable person respecting provenance and in from the seventeenth
must testify as to the their original order, with a through nine-teenth
record-keeping practices clear and demonstrable chain centuries;" in the 1970s the
of the business. The of custody are the best case involved indict-ments
archivist may be called to candidates for admission as signed by a signer of the
testify as the custodian evidence in court. Declaration of ln-
and if called must dependence;I8 and the case
describe, to the best of his Replevin: Recovering of the 1980s most surely
knowledge, how the the Missing Document will be the one involving
business makes and keeps the auction of fifty-eight
its records. Public Every decade seems to rare Hebrew books and
records, reports, or data have a major lawsuit in which manuscripts that had been
compilations are the dispute is the possession spirited out of Nazi
admissible if they show of documents or books that Germany.I9 The actions to
the ac-tivities of the have strayed from an recover these items have
agency or are required by institution into private hands. become lumped together
law to be pre-pared. In the 1950s the case involved under the heading
the Lewis and Clark expedi-
Regularly kept religious
records of births, deaths,
marriages, divorces, and
similar personal or family
history records are
admissible as are
marriage, baptismal, and
other similar certificates.
Similarly, family history
in family Bibles,
genealogies, or other like
records are also
admissible. Finally,
properly authenticated
ancient records are also an
exception to the hearsay
rule.
All of the above -
continuous custody, the
best evidence rule,
hearsay - are important in
determining the
admissibility of a
document as evidence in
court. Obviously, if one
can show continuous,
unbroken custody of
records any challenge to
their authenticity would
be difficult to sustain. The
law, however, does not
have such a strict
requirement. Just like the
modern archivist, the law
is interested in the
regularity of the process.
The value of the records
as evidence rests in the
v
' i
d I6United States v. First
9 . Trust Company of Saint
0 Paul, 146 F.Supp. 652 (D.C.
1 1 MN 1956). aff'd 251 F.2d 686
( (8th Cir. 1958).
a "Sender v. Montoya, 73 N .
) 9 Mex. 287, P.2d 860 (1963);
, 0 Historical Society of New
2 Mexico v. Montoya, 74 N .
F ( Mex. 285, 393 P.2d 21
4 (1964); United States v.
e Sender. Civil No. 14965-2,
d )
, United States District Court,
. Western District of
Missouri.
R F I8Statev. West, 31 N.C.
. e App. 431,229 S.E.2d 826
d (1976), aff'd 293 N.C. 18,
E . 235 S.E.2d 150 (1977).
v I9New York Times, July 15,
i R 1984: E9; August 16, 1984:
d . C17; August 30, 1984: C17.
.
E
8 v
i
9 d
0 .
1
( "
b
) 9
( 0
l 1
) (
, b
F )
e (
d l
. )
(
R C
. )
,
E
v F
i e
d d
. .
9 R
.
9
0 E
1 v
( i
b d
) .
( "901(b)(A) and (C), Fed. R.
7 Evid. If an ancient document is
) found in another location it may
, have to be authenticated by
means of expert testimony
saying, "Yes, that is George
F
Washington's signature."
e
d "801(c), Fed. R. Evid.
"801(a), Fed. R. Evid.
. 13803(6),(8), ( l l ) , (12),
(13), and (16). Fed. R.
R Evid.
.
E
SPECIAL PROBLEMS 91
recovery of personal loJames E. O'Neill,
property. Most states "Replevin: A Public
of "replevin," an (and the United States)
Archivist's Perspective," document. One such case
Prologue 1 1 (Fall 1979): 200-
important legal action, have replaced these 4.
involved a letter signed
the elements of which common law remedies "66 Am . Jur. 2d, Replevin, by George W a s h i n g t
must be understood by a with some form of sec. 16. ~ nFrom.~~ the facts of
rchi~ists.~~ statutory ones. All of this case it ap-pears that
these remedies, whether one John Allan was a
The Nature of Replevin collector of rare manu-
common law or
A number of actions statutory, whether scripts and that for at
developed in the replevin, detinue, or least thirty years before
common law to recover trover, have come to be his death in 1863 he had
possession of or obtain called replevin by in his possession a letter
damages for the loss of archivists, and for the signed by George
personal property. All purposes of this Washington and
property is either real discussion will be addressed to "Honbler
property (real estate) or referred to as such even The Mayor, Recorder,
personal property though the term is not Alderman and
(personalty). Those ac- technically cor-rect. Commonalty of the ci-ty
tions relating to the In order to recover in of New York." His
recovery of personal daughter, as executrix of
a replevin action, the
property were known as his estate, had the letter
plaintiff must prove title
"replevin," "detinue,"
in himself; he must sold at auction, where it
and "trover."
recover on the strength was boughthy DeWitt
Replevin is an action to Lent in May of 1864 for
of his title and right to
recover personal $2,050. The City of New
possession of the docu-
property taken, while ment rather than on the York sued to recover the
detinue is an action to weakness of his letter, claiming
recover personal opponent's title and right ownership. Apparently in
property detained. An to possessi~n . ~'In other December of 1778 the
archives would have an words, just because the Com-mon Council of the
action in replevin if a person in possession of a City, "imbued with
document was taken document does not have emotions of gratitude for
from the archives and good title to it does not the distinguished
the archives sued for its mean that the archives services of General
return. The archives can recover the item; the Washington," voted an
would have an action in archives will have to "address to him, together
detinue if the archives show a right to title and with the freedom of the
loaned a document and possession. There have city, in a gold box."
the person to whom it been very few reported General Washington's
was loaned refused to cases involving replevin reply was read at the
return it so the archives of documents; however, meeting of the coun-cil
sued for its return. In the few that there are fall on May 2, 1785,
either case the archives into two categories: transcribed into the
would also have the right replevin of public minutes, and ordered to
to recover for any documents and replevin be published. No
damages incurred by the of private documents. evidence was produced
temporary loss of to show what had
possession. An action in Replevin of Public
happened to the letter
trover, on the other hand, Documents
between 1785 and the
is for damages for the The issues in public date the letter appeared
wrongful taking of document replevin cases in John Allan's
personal property; in revolve around whether collection. The court
other words, the archives or not the document is a awarded the letter to the
wants money and not the public docu-ment and city, finding that the style
return of the property. whether on its face it of the letter, its address,
All states have some appears to be a public and the fact that it was in
legal method for the response to a legislative
act gave notice at all that the seller had a right 92 The United States then
times that the letter was to sell, entered the case and had it
property of the city. The removed from state court to
court noted that other and there was nothing
the federal district court. The
personal property may
"Mayor and City of New about the transaction to
York v. Lent, 51 Barb. 19 United States claimed
not have such distinctive put him on notice to
(N.Y. 1868). ownership of the items
notice as this particular For an older case involving inquire further into the
because they were prepared
letter. pueblo records, see DeLaO v. title to the item. Both
Acoma, 1 by an army officer during a
A more recent case courts found that the
N.M. 226 (1857). military expedition financed
has confirmed this 13State v. West. purchaser was not a bona
by the United States. The
concept of notice on the fide purchaser because the
United States asserted that it
face of the document as documents themselves
had superior title because
a test of owner-ship. In should have put the
purchaser on notice. The General Hammond had
1974, B.C. West, Jr., probably obtained the papers
purchased at an auction courts could have reached
the same result if either when he closed a government
conducted by Charles office at which Clark had
Hamilton Galleries two buyer had paid only $1 -
been Indian agent. The
bills of in-dictment from that is, if a fair price had
government also argued that
1767 and 1768 that were not been paid.
the heirs of Clark had
signed by William Unfortunately, not all
superior title to that of the
Hooper, Attorney for the documents put the
purchaser on notice that Ham-mond heirs. The
King. (Hooper was documents did not contain
subsequently one of the the document is a public
one. This was the problem any evidence on their face
North Carolina signers that they were public records
of the Declaration of in United States v. First
Trust Company of Saint but appeared to be private
Independence.) North diaries. The court found that
Carolina sued for the This case started in the
Minnesota State District they were private papers,
return of the documents. there was no notice on the
The court found that the Court as a suit between
some of the heirs of Mrs. face of the documents that
records should be they were government
returned to the state of Sophia V. H. Foster and
the Minnesota Historical records, and the government
North Carolina because had failed to prove its title.
the documents on their Society. The facts of the
case are interesting. When The United States also lost
face gave notice that on the argument that the
they were court records Mrs. Foster died, one of
her daughters found a desk Ham-mond heirs' title was
of the colony of North
that belonged to Mrs. not clear; it certainly was not,
Carolina and because of
Foster's father, General but, as previously stated, one
this notice, a purchaser
John Henry Hammond. In cannot recover on the
could not be a bona fide
the desk were his Civil weakness of the other's title.
purchaser of the items.23
War diaries and other
As can be seen from In the case of public
papers. Without realizing
both of these cases, the records the government
fact that the documents what the other docu-ments
were, she turned them seeking replevin must
themselves put the establish that the records
purchaser on notice that over to the Minnesota
Historical Society. The were made or received as
they were public part of the official function of
documents was other documents turned
out to be notes written in the govern-ment and that the
important. The reason records, on their face, put a
the notice is important is 1803 and 1804 by William
Clark, the co-leader of the purchaser on notice that they
the "bona fide pur- are public documents.
chaser" or "innocent Lewis and Clark
purchaser for value" expedition. Some of the
rule. This rule states that heirs of General
one who has purchased Hammond were offered
personal proper-ty need $20,000 for the papers and
not return it if he paid a they sued the Historical
fair price for the item, Society in state court to
had a reasonable belief recover them.2s
LAW innocence of the p u r ~ be in public custody be so in perpetuity and
haser.~~ should always be may decide to seek a
Facing Replevin sought. copy instead of the
Replevin of Private
(3) When the original.
Documents With this background missing document is (4) Privately held
Private records in replevin, it is obvious available to the documents not available
present special that an archives, public in a research for public research
problems. Records of whether public or facility, the should be made
corporations may private, is faced with a government should available for research.
appear on their faces number of replevin in-sure that this will If this is
to be records of the problems. These issues
corporation, and self- include when to seek
identification may replevin of documents,
also be found in how to prove the docu-
records of ments are from the
universities, churches archives, and how to
and religious orders, avoid replevin actions
eleemosynary and for documents in
volunteer institutions. archival custody.
If they do have such Whether or not to
notice on their faces, seek replevin is a
then the bona fide complex issue that will
purchaser rule would require the advice of a
apply. lawyer. If the archival
But many institution is a private
institutional records, one, the choice may be
as well as most per- to seek replevin only in
sonal papers, give no order to protect the
such warning that institution's collec-tion
they are docu-ments and reputation. A public
that belong institution may have
elsewhere. Title to somewhat broader
them must be proved choices because a public
by other means, and institution should be
if the documents interested in both access
were pur-chased by a for the public and the
bona fide purchaser, integrity of the records
they may never be to protect public rights
recovered. The Clark and preserve
case has shown that government
if the docu-ments are accountability. Some of
of private origin, the criteria a public
only someone having institution could use to
a superior title, such determine whether or
as the Clark heirs not to seek replevin of
would have had if public documents in-
they had claimed the clude:
documents, can be
successful in a (I ) Every effort
replevin action. should be made to
Thus, replevin recover docu-ments,
actions for private regardless of value or
documents by significance, if the
docu-ments were
necessity revolve
clearly removed
around questions of illegally.
superior title and (2) Significant
documents that should
"U.S. v. First Trust of Saint Paul.
2J"U.S. Presses Claim to 1804 Lewis Data," New York Times, 26Fora case involving church records, see Sawyer v. Baldwin, 1 1
November 19, 1957: 25. Pick. 492, 28 Mass. Rpts. 492 (1831).
WORKING WITH A LAWYER 93
archives does not have a (Chicago: Society of American
Archivists, 1977).
strong case.
not possible, either a If the archives holdings of another
copy or the original receives documents, institution, it might call the
should be sought to either through institu-tion where the
ensure public access. purchase or donation, it document may properly
The above, with should also be concerned belong. If the document is
modifications, might about replevin actions of foreign origin, the
also be used by a private against the archives. archives should treat it with
archives as tests of There are a few even greater suspicion,
whether or not to bring a questions the archives particularly if it appears to
suit to recover a d o c ~ should ask when be part of the records of a
ment.~' accepting docu-ments, foreign government or
If the archives has the especially if paying for documents of cultural
misfortune to become them: patrimony of another
involved in a suit to recover Are these On their nation.29
possession of an item Finally, archivists
faces public docu-ments?
removed from the archives, should remember that, as
there are a number of things (2)Has the archives with all legal problems,
the archivists can do to had a long history of litigation and replevin
assist the lawyers. Among dealing with the party are a last resort. In other
them are: from whom it is words, negotiate: half a
(1) Know the receiving the documents, loaf is nearly always
collection and be able to and has the party been better than none.
demonstrate that the item reliable? Lawyers have a saying:
is most likely from the (3) Is there anything "A bad settle-ment is
archives. One ob-vious about the transaction better than a good trial."
way is to show that the that makes The legal remedy of
document bears a stamp it suspicious? replevin developed in the
giving notice of the (4) Should these centuries when the only
archives' ownership; in documents properly copies available were
the absence of a stamp, belong else-where? those made by hand
another obvious way is to If the archives has transcription. Today a
show that the document problems answering the number of techniques are
is a logical part of a questions above, it should available to produce a
series.28 start asking questions. If the fac-simile copy suitable
(2) Come up with an archives suspects that the for research and legal
argument as to why the document offered is part of uses. A good copy, like a
docu-ment itself would the bad settlement, may be
have put a purchaser on better than no docu-ment
notice that "These criteria have been at all.
the item was stolen. adapted from those.in an
excellent draft opinion by Paul 29Forexamples of problems,
(3) Through the use of A. Barron, Assistant General see "A Stolen Relic is a
researcher records, Counsel, General Ser-vices Problem for Mexicans," New
Administration, to Acting York Times, August 29, 1982:
demon-strate the Archivist of U.S., December 8, 11; "Sale of Che Diaries
opportunity that an 1965, P&C Case 66-1 12, Blocked," Washington Post,
identifiable person had to Record Group 64, Records of July 10, 1984: C4; "Curbing the
the National Ar-chives. Antiquities Trade," Science 217
take the item. "Stamping each document (Sept. 1982): 1230-31.
(4) Describe in writing with some notice of the
archives' owner-ship is the most
the security system in
use at the archives.
(5) Decide whether a
desirable protection for the
document in case of a replevin
action; if the holdings are
8 Working
copy would serve extensive, however, stamping is
prohibitively expensive. The
with the Lawyer
researchers equally as next best policy is to have a
well as the original; if clear, com-prehensive, strict
security system for the archives.
the answer is that it See the suggestions Many archivists may
would, consider settling incorporated in Timothy Walch, never have to cope with
for the copy if the Archives and Manuscripts: lawyers and the legal
Security
system; others will not
be so fortunate. Ar-
chivists who are not
among the fortunate will
usually have with lawyers
in one of three ways:
the archives is involved in
a lawsuit either as
plaintiff or defendant; (2)
lawyers use the holdings
of the archives for . or
(3)., the archivist receives
a subDoena to attend a
deposition or trial and is
directed to bring cer-tain
records. This chapter will
discuss contacts between
lawyers and archives and
will suggest ways of
making the relationship a
successful one.
What to Expect
from the Lawyer
during Litigation
In all lawsuits involving
an archives, whether
public or private, the
archives has several rights
that it should demand
from its lawyer. First, the
archives has a right t o
know a t all times the
status of the litigation.
Second, the archives
should receive a copy of
all pleadings (documents)
filed in court or sent to or
received from other
parties. Third, if the
archives has a private
counsel, it has a right to
know in advance of hiring
the lawyer what the
services will cost. In other
words, the archives should
have a written contract
stating the ser-vices to be
provided and the fee t o be
charged. In any event,
both public and private
archives should expect,
demand, and receive
information about the case
at all times. If the archives
does not, it should get
worried.
archives is doing a proper job, the archives should (1) Interrogatories: written questions submitted to the
receive numerous copies of pleadings. Pleadings are other party and answered under oath;
documents filed in the case. In order to follow the litiga- (2) Depositions: discussed above in the section on
tion and to better assist the lawyer, an archivist needs a subpoenas;
basic understanding of what pleadings are and the stages (3) Requests for admissions: written requests to the
in litigation in which pleadings are usually found. Since other party asking him to admit that a certain statement
civil procedure varies from state to state, federal is true;
procedure will be used as the basis for this discussion. (4) Production of documents: asking the other party to
Most states follow federal civil procedure after a produce for inspection and copying documents rele-vant
fashion, but there are usually some differences. In all to the lawsuit.
cases, however, a civil lawsuit has three logical stages In addition to discovery, a motion for summary judg-
and an optional fourth stage. The three stages are (1) the ment may be filed. This motion often is a way to avoid a
initial pleadings, (2) the pretrial motions and prepara- long trial. It is used to dispose of either the entire case or
tions, and (3) the trial. The optional fourth stage is, of certain issues in the case and is based upon the facts
course, the appeal. learned in discovery. The motion claims that there are no
disputes as to certain facts and, based on those un-
Initial Pleadings disputed facts, asks that judgment be entered against the
The purpose of the initial pleadings is to set the stage other party (either plaintiff or defendant can file this
and identify the players. This is done by the plaintiff motion).
paying a fee and filing a complaint in court (this is done If there are disputed facts there has to be a trial
in the clerk of court's office). The complaint is a docu- because the fact-finder must hear the testimony and
ment that identifies the plaintiff and defendant, states the determine the true facts. As part of all motions,
authority for the court to hear the case (jurisdiction), memorandums of law (sometimes called briefs) are sub-
states the facts that have resulted in the filing of the case, mitted to the court, stating the facts and arguing the law
and asks for the appropriate remedy (money damages, as it relates to the facts. If the motion for summary
some other relief, or both). Filed with the complaint is a judgment is not granted or only granted in part and there
summons (or notice), which is served upon the has not been a settlement of the case, a trial must be
defendant to give him notice that the suit has held.
commenced. Depending on the jurisdiction, the sum- The Trial and Post-trial Motions
mons may be served in person or by mail.
Upon being served, the defendant has a specified The trial is the final production; all that has gone
period of time in which to appear and file an answer, before has been the writing of the play and the rehears-
al. Now comes opening night with all its jitters. The trial
usually between twenty and thirty days. In the answer
is conducted by a judge and may be with or without a
the defendant will admit or deny some or all of the facts
jury. Although one always has a constitutional right to a
asserted in the complaint, may assert some affirmative
jury trial in a criminal case, this is not always so in a
defenses to the suit (such as a prior decision on the mat-
civil case; also, the parties may decide to waive a jury. If
ter, duress, etc.), and may assert a counterclaim against
the case is tried to the jury, the jury's function is to
the plaintiff for money damages or other relief. If there
decide the disputed facts in the case based on the in-
are multiple defendants they may also in their answers
structions of law given to them by the judge.
assert claims against each other as well as against the
The first step in a jury trial is to pick a jury. This is done
plaintiff; these claims between defendants are known as
by bringing in a number of prospective jurors and asking
cross-claims. At this point the parties are all present and
them questions (a proceeding known as voir dire) to
the stage is set.
establish that they are unbiased and can fairly decide the
Pretrial Motions and Preparations case. The questions can, depending on local prac-tice, be
In this stage of the litigation the lawyers have many asked by either the judge, the lawyers, or both the judge
different options on how to proceed. The order will vary and the lawyers. Each side is given the right to strike
according to the various strategies worked out by the (throw out) a number of prospective jurors and thereafter
respective lawyers and their clients. One of the options a panel is selected. Jury selection is one of the least
almost always pursued is that of discovery. The purpose standardized procedures in a court proceeding and varies
of discovery is to ascertain facts about the case in the not only from courthouse to courthouse but from judge to
possession of others and to learn the opponent's facts so judge within the same courthouse. The number of jurors
that the lawyers may properly prepare for trial. also varies, usually from a minimum of six to a maximum
Discovery is accomplished in a number of ways: of twelve, and the number of alternate
WORKING WITH A LAWYER 97
facts in the case, applies in-formed business
them to the law, and decision. As a manager,
jurors varies as well. renders its verdict. In a tion for a writ of the archivist wants advice
Alternates are picked to judge-tried case the certiorari with the on what will happen if a
replace any of the judge issues a written Court, explaining the certain action is taken, the
regular jurors who may opinion giving his importance of the case. archivist doesn't want to
not be able to con-tinue findings of fact and The Court then decides be told what to do. The
the trial. conclusions of law. whether or not to hear archivist wants to weigh
Whether the trial is to After the jury verdict the case (most petitions the risks. Getting the ar-
a judge or a judge and are not granted). All chives' lawyer involved in
or after the judge has
jury, the order of the appeals, whether to an the basics, such as deeds,
written his findings, a
trial is the same: intermediate-or the
final judgment is ac-cess agreements,
(1) Opening highest court, cannot
entered by the judge. It publications, and reviews
statements. The purpose reargue the facts. The
is at this point that the of pro-cedures is a good
of an opening statement facts have been fixed
parties may wish to idea. But the archives
is to explain the for all time by the
consider the possibility should have the last word,
respective parties' finder of fact (judge or
of an appeal. making clear to the
theory of the case and jury) in the original
lawyer and to itself that it
to familiarize the fact- The Appeal trial. Instead, the appeal
is only soliciting the
finder with the issues in During a set period of must be based on some
error in law committed lawyer's professional
the case. time, usually from thirty advice.
(2) Presenting the to six-ty days after the
by the court. Most
appeals are not Finally, just as the
evidence. Usually the judgment is entered, either archives can expect
successful; however, if
plaintiff goes first, party can file an appeal. If certain things from its
successful a retrial may
followed by the no appeal is filed during lawyer, the lawyer
be necessary and the
defendant. The plaintiff that time, the right to whole procedure starts demands that the archives
then can put on rebuttal appeal is waived and the over again. conceal nothing. To
evidence to rebut any of case is closed. The federal receive and to provide
the defendant's system and many state effective legal services,
witnesses. systems have an in- The Lawyer Adviser there must be no surprises
(3) Final argument. termediate appeals court Involvement of an for either ar-chives or
The lawyers can argue that one must appeal to lawyer. Do not
archives with lawyers will
how the evidence before reaching the procrastinate when legal
usually not be related to
supports their theory of highest appeals court in prob-lems seem to be
litigation. Most likely the
the case. Usually the the system. Also, as with arising. Tell the lawyer
archives will find itself
plaintiff argues first and the U.S. Supreme Court, about the sub-poena, and
working with a lawyer
last and the defendant some of the highest courts inform him that the
argues in the middle; because the archives has
do not have to hear every become aware of a legal archives did not obtain a
however, the plaintiff appeal made to them but deed of gift. Law, like
cannot save all of his issue and wants a legal
can pick the appeals they opinion. The archives archives, is a service
arguments for the last wish to hear. In the case of should be careful when profession. Lawyers can
period because at that an appeal to the U.S. requesting a legal opinion serve the archives best if
stage he can only
Supreme Court, one files a because a lawyer, if the the archives works
comment on what the
peti- archives permits, will run openly'and honestly and
defendant has argued.
(4) Instructing the the institution and tell the closely with them.
jury. The judge archives how to do things;
tells the jury the a lawyer is an expert on
law to which they must everything. The archives
apply the facts as they should instead present the
find them. If the trial is lawyer with options and
to a judge only, this ask what the legal
step is omitted, as is the ramifications are for each
next one. option. Based on the
(5) Jury deliberations. lawyer's advice the
The jury decides the archives can then make an
LAW
Appendix 1
ALA-SAA Joint Statement on Access to Original Research _
Materials in Libraries, Archives, and Manuscript Repositories
Appendix 2
Code Citations to State Open Records and Privacy Laws
Some of the open records laws listed below closely follow the federal Freedom of Information Act, others d o not. Some of these
laws are very general and have received extensive judicial interpretation; others are equally general but have had n o judicial
interpretation. Some of the laws listed merely state that a citizen can obtain a copy of a public document from a public official,
defining neither "public document" nor "public official." Some of the laws date from the last century; others are brand new.
Like the state open records laws, the state privacy laws vary greatly. The privacy laws listed are those laws that broadly pro-tect
information found in government records about an individual. Not listed are those laws that close only a specific body of records,
such as separate statutes on hospital records, adoption records, and so forth. Some states have a number of such specific laws, and
state archivists should consult both the state legal code and the archives' lawyer to find them.
Because the state laws can be very general and also because there has not been much litigation in state courts on either open
records or privacy, a state archives should consult with its lawyer before drawing any conclusions just from reading the code
sections listed here. The lawyer will examine the code, the cases, and any relevant state attorney general opinions before pro-viding
the archives with a definitive position. The archives should suggest that the lawyer look for any federal precedents as well,
especially if there has been little state litigation.
State
-
Code Open Records Privacy
ALABAMA ALA. CODE (1975) 36-12-40 None
ALASKA ALASKA STAT. 09.25.1 10-.I25 (1983) None
ARIZONA ARIZ. REV. STAT. 39-121 to 121.03 None
(1974 & Supp. 1983)
ARKANSAS ARK. STAT. ANN. 12-2801 to 2807 None
(1979 & Supp. 1983)
CALIFORNIA CAL. GOV'T CODE 6250-6265 1798-1 798.70
(1980 & Supp. 1984) (Civil Code)
COLORADO COLO. REV. STAT. 24-72-201 to 402 None
(1982 & Supp. 1983)
CONNECTICUT CONN. GEN. STAT. ANN. 1-15 to -21k 4-190 to 197
(West 1969 & Supp. 1984) & 31-128a to 128h
DELAWARE DEL. CODE ANN. 29: 10001-10112 None
(1983)
DISTRICT OF COLUMBIA D.C. CODE ANN. 1-1521 to 1529 None
(1982)
FLORIDA FLA. STAT. ANN. 119.01-.12 None
(1982 & Supp. 1984)
GEORGIA GA. CODE 50-18-70 to 74 None
(1984)
HAWAII HAWAII REV. STAT. 92-21, 92-50 to 52 92E-1 to 13
(1976)
IDAHO IDAHO CODE 9-301 to 302 (1979); None
(1976 & SUPP1983). 59-1 009 (1976)
ILLINOIS ILL. REV. STAT. 116: 43.4-.29, None
(1954 & Supp. 1984) .101-.103a, .113;
.201-.211
INDIANA IND. STAT. ANN. 5-14-3-1 to -10 4-1 -6-1 to -9
(1983 & Supp. 1984)
IOWA IOWA CODE ANN. 68A.1-.9 None
(1973 & Supp. 1984)
KANSAS KAN. STAT. ANN. 45-205 to 214 None
(1981 & Supp. 1983)
KENTUCKY KY. REV. STAT. 61.870-.884 None
(1980 & Supp. 1984)
LOUISIANA LA. STAT. ANN. 44:l-:13, :31-:44 None
(1982 & Supp. 1984)
MAINE ME. REV. STAT. ANN. 1: 401-410 None
(1979 & Supp. 1983)
100 LAW
MARYLAND MD. ANN. CODE None
Appendix 3
Requirements for the Loan of Original Records from the National Archives
2. Records s h a l l be s t o r e d o r d i s p l a y e d i n a f i r e - p r o o f b u i l d i n g and p r o t e c t
e d by f i r e alarms , smoke alarms , and a d i r e c t alarm t i e - i n wit h a f i r e department .
5. a . Incandescent l i g h t i n g i s d e s i r a b l e , b u t i f it i s u n a v a i l a b l e
f l u o r e s c e n t l i g h t i n g is a c c e p t a b l e . F i l t e r s must be used t o p r o t e c t r e c o r d s
a g a i n s t t h e u l t r a v i o l e t l i g h t r a y s produced by f l u o r e s c e n t l i g h t i n g . h l y
f i l t e r s t h a t exclud e l i g h t below awave l e n g t h o f 460 micrometers a r e
a c c e p t a b l e . Examples o f such f i l t e r s a r e yellow p l e x i g l a s s number 2208 and
yellow p o l y c a s t number 2208.
d u s t and d i r t proof .
I
directly.
10. P r o v i s i o n s must b e made t o p r e v e n t t h e p u b l i c from t o u c h i n g w a l l hung
o b j e c t s . Such p r o v i s i o n s c o u l d i n v o l v e a n a p p r o p r i a t e hanging s y s t e m , t h e u s e
o f s t a n c h i o n s , o r a c o m b i n a t i o n o f any o f t h e s e .
11 . I n d i s p l a y and p u b l i c i t y t h e Nat - ional A r c h i v e s must r e c e i v e c l e a r and
p r o m i n e n t c r e d i t . The c r e d i t l i n e s h o u l dn o r m a l l y r e a d :
The N a t i o n a l A r c h i v e s
Washington, DC
C o p i e s o f a l l p r e s s c l i p p i n g s must b e s e n t t o t h e N a t i o n a l A r c h i v e s .
may i n s p e c t t h e e x h i b i t a r e a b e f o r e t h e r e c o r d s a r e p l a c e d on d i s p l a y . I f , i n
h i s o r h e r judgment, t h e above c o n d i t i o n s have n o t been met, t h e l o a n w i l l n o t
b e made. S t a f f menibers o r p e r s o n c e l d e s i g n a t e d by t h e N a t i o n a l A r c h i v e s may
a l s o make a d d i t i o n a l unannounced i n s p e c t i o n t r i p s o n c e e v e r y t h r e e months
d u r i n g t h e p e r i o d o f t h e l o a n . T r a v e l e x p e n s e s o f NARS s t a f f w i l l be b o r n e by
I
t h e borrower .
13. O r i g i n a l r e c o r d s a r e n o r m a l l y h a n d - c a r r i e d by a NARS s t a f f member. A member
o f t h e r e q u e s t i n g i n s t i t u t i o n ' s s t a f f o r t h e i r d e s i g n e e may h a n d - c a r r y t h e
documents s u b j e c t t o a p p r o v a l by t h e N a t i o n a l A r c h i v e s . Under s p e c i a l
c i r c u m s t a n c e s a l t e r n a t i v e means o f t r a n s p o r t a t i o n may b e approved . The
e x p e n s e s o f t r a n s p o r t a t i o n t o and from 'he b o r r o w i n g i n s t i t u t i o n w i l l be b o r n e
by t h e b o r r o w e r .
14. The borrowing i n s t i t u t i o n must, a t its own e x p e n s e , c o v e r t h e documents
i n v o l v e d w i t h a n a l l - r i s k f i n e a r t s i n s u r a n c e p o l i c y from t h e time t h e
documents l e a v e t h e A r c h i v e s r l n t i l t h e time t h e y a r e r e t u r n e d . An e v a l u a t i o n
f o r i n s u r a n c e p u r p o s e s w i l l b e made by t h e N a t i o n a l A r c h i v e s and must b e k e p t
c o n f i d e n t i a l . Evidence t h a t i n s u r a n c e c o v e r a g e is i n f u l l f o r c e and e f f e c t
must b e g i v e n t o t h e N a t i o n a l A r c h i v e s b e f o r e t h e documents may l e a v e t h e
building.
TO FROM
In accordance wlth the condltlons prlnted on the reverse, the objects llsted below are borrowed for the following purpose only
PERIOD LOCATIONS O F OBJECTS
FROM TO
DESCRIPTION OF ITEMS
a
OTHER (spsclrv)
SHIPMENT TO BE VIA
OUTGO l NG RETURN
-
CREDI T L l N E ( F a srhlbltlon label and c a t a l o g w )
PROTECTION
Each object, which term includes documentary material, is loaned for the benefit of the borrowf5r. and shall be given special care at
all times to insure against loss. damage. deterioration. The borrower agrees to meet the special requirements f a installation and handling as noted qn the face of this
agreement form. Funhermore. the National Archives may require an inspection and ap w a l at
the actual installatty by a member of Its staff as a.condltlon .of the loan at the expense of the borrower. The National Arcgves
further reserves the r l
t to enter on the pemises where the object may be locat+ for the purpose of inspening i t or observing its use. Upon receipt a n y p i o r to return of the objects, the
borrower must make a wrltten record of condition. unless the borrower
gives written notice specifying any defect in a other proper objection to the object upon receipt thereof, the borrower agrees that i t shall be
conclusively pesum*. as between the borrower and the National Archives. that the borrower has fully inspected and ac-knmledg* that the object 1s
In good c o n d ~ t ~andm repair. and that the borrmer IS satisfied and has accepted such object in such good condition andrepair. The Archives is
to be notified immediately, follmed b a full wrinen report. incl.uding phbtographs. if damage or loss IS dlscwered. No objftct may be altered, cleaned.
or repaired witxout the p l o r wrltten permlsslon of the Archives
Objects borrowed must be maintained In a fireqoof buildin under 24-hour security and potected from unusual temperatures and hl;-midity. excessive li ht. and from insects.
vermln, 7 dirt. 8bjects must be handled only b experienced personnel and be secured
fran damage and the% by appropiate brackets. ralllngs, display cases, and other responsigle means. Withart p i o r written consent of the Archlves,
the borrower shall not a) asslgn. transfer, pledge, or hypothecate this agreement, the objects or any part thereof or any interest therein: (b) sublet or
lend tke objects or any part thereof. c) permit the objects or any pan thereof to be used by any-one other than the borromtr or the
borrower'semployees; or (d) p e r m i i t L object to be rernwed from the location specified upon the face of this agreement. The ob~ectshall be used
only for the purposes specified on the face of this agreement. The qoperty is and shall at a l l times remain the sole poperty of the Archives. and the
borrower shall have no right, title, or Interest thereln except as e x ~ e s s l yset f0d1 in this agreement. Finally. the borrower shall give the Archives
irmediate notice of any attachment or other judlclal process affecting any object borrowed and shall, whenever requested by the Archives, advlse the
Archlves of the exact loca-tion of the objects.
INSURANCE
Borrmer shall indemnify the Archives against all claims, actions, poceedin s. costs. dmages, and liabilities. including attorney's fees. arising out of,
connected with, or resulting fran use of a borrowing of $9 objects.
. .
PACKING AND TRANSPORTATION
Packing and transportation shall be b safe methods appov* in advance by the National Archives. Unpack,ing and repacking must be done by
experienced personnel un&r cmpetent supervlslon. Repacking must be done wlth the same or slmllar materials and
boxes, and by the same methods as the objects were received. Any additional instructions w i l l be followed.
, , .. .. . .. . -.
CREDIT
Each object shall be labeled and credited in any publication to the National Archives Washington DC or,
Unless otherwise agreed to in writing, no repductions arg permitted by the borrower'or its v ~ e w ~publlcig except photographic coples for
catalog and publicity uses related to the stated purpose of this loan.
COSTS
Unless otherwise noted, all costs of packing, transportation and insurance shall be borne by the borrower.
RETURN/EXTENSIONS/CANCELLATlON
I have read and agree to the above conditions and certify that I am authorized to agree thereto:
S I GNATUR E (Emrower a suthalred saent) TITLE . . DATE
* u. I.GR):I~~~+-S~~-SIM~~
.-. .
(Pleese sign end return both c w i e s ) GSA FORM 7251 BAU< 1 0.77 I
COPYRIGHT ACT 105
Appendix 4
Copyright Act, Title 17 of the United States Code
plionorecord unser subsection ( d ) from liab~lityfor cop P r ~ g hinfringement for any such
act, or for ally later use of suc 1 copy or phonorecord, if ~t exceeds fair use as provided by
section 107;
(3) shall be construed to limit the reproduction and distribu-tion by lendill of
a limited n u m b r of copies and excerpts by a library or arc ives of an f
audiov~slialnews program, subject to clauses ( I ) , (2), and (3) of subsection (a) ;
or
(4) in any way affects the right of fair use as provided by section
107, or any contractual obligat~onsassumed at any time I)y the library
or archives when it obtained a copy or phonoi~cord
of a work in its collections.
COPYRIGHT ACT 107