Privacy and Confidentiality Perspectives: Archivists and Archival Records
edited by Menzi Behrnd-Klodt and Peter Wosh
Society of American Archivists, 2005 Paper: 978-1-931666-10-7 | eISBN: 978-1-945246-99-9 Library of Congress Classification CD986.5.P75 2005 Dewey Decimal Classification 323.4483
ABOUT THIS BOOK | AUTHOR BIOGRAPHY | REVIEWS | TOC | REQUEST ACCESSIBLE FILE
ABOUT THIS BOOK A diverse selection of thoughtful and provocative essays that explore the legal, ethical, administrative, and institutional considerations that shape archival debates concerning the administration of access to records containing personal information.
AUTHOR BIOGRAPHY Menzi L. Behrnd-Klodt is both an archivist and an attorney, holding advanced degrees in history, library and information science, and law, all from the University of Wisconsin. Currently she is corporate counsel for American Girl, Inc., a children’s book publisher and toy company that is part of Mattel, Inc., where she focuses on intellectual properties, licensing, and business agreements, and she oversees the corporate archives and records programs. Previously she managed research and library services and established the corporate archives at American Girl. She also established the corporate archives at CUNA Mutual Insurance Group, Madison, Wisconsin; was archivist at Circus World Museum, Baraboo, Wisconsin, and the Wisconsin Historical Society, and consulting archivist at Bishop Museum, Honolulu, Hawaii. Menzi consults to many other historical societies, museums, cultural organizations, and businesses on legal, archives, and records issues. Her legal practice encompassed business and insurance law. She frequently speaks at professional meetings on legal issues for archives and teaches basic archival workshops and is a past chair of SAA’s Privacy and Confidentiality Roundtable.
Peter J. Wosh is the director of the Program in Archival Management and Historical Editing at New York University, a position he has held since 1994. Prior to that, he served as director of Archives and Library Services at the American Bible Society and University Archivist at Seton Hall University, where he was also responsible for administering the Archives of the Archdiocese of Newark. Wosh holds a Ph.D. (1988) and an M.A. (1979) in American History from New York University, as well as a B.A. with Highest Distinction in History from Rutgers University (1976). He is a fellow of the Society of American Archivists and has written and spoken widely on archival and history topics. Previous books include Covenant House: Journey of a Faith-Based Charity (Philadelphia: University of Pennsylvania Press, 2005); Spreading the Word: The Bible Business in Nineteenth-Century America (Ithaca: Cornell University Press, 1994); with Joseph Mahoney, The Diocesan Journal of Michael Augustine Corrigan, Bishop of Newark, New Jersey, 1872–1880 (Newark: New Jersey Historical Society, 1987); and Guide to Northern New Jersey Catholic Parish and Institutional Records (South Orange: New Jersey Catholic Historical Records Commission, 1984).
REVIEWS "Privacy and Confidentiality Perspectives fills a crucial void in the corpus of archival literature. . . . Based upon the knowledge and experience of professionals who already have been forced to navigate their way through the maze of competing interests and the seemingly contradictory precedents, the readings describe situations to which archivists from any type of repository can relate. Archival educators especially will find this anthology a gold mine of current information that can be used to stimulate thought and discussion in classes and help to prepare the next generation of archivists for the challenges they will face." --TIMOTHY L. ERICSON, former Director of Archival Studies, University of Wisconsin-Milwaukee
TABLE OF CONTENTS
ACKNOWLEDGMENTS V I I
INTRODUCTION 1
LEGAL PERSPECTIVES 9 1. The Right to Privacy Samuel D. Warren and Louis D. Brandeis 15 2. Privacy William L. Prosser 31 3. The Tort Right of Privacy: What It Means for Archivists . . . and for Third Parties Menzi L. Behrnd-Klodt 53
ETHICAL PERSPECTIVES 61 4. Information Privacy, Liberty, and Democracy Heather MacNeil 67 5. The Archivist’s Balancing Act: Helping Researchers While Protecting Individual Privacy Judith Schwarz 82 6. Privacy Rights and the Rights of Political Victims: Implications of the German Experience Elena S. Danielson 93 7. Ethical Issues in Constructing a Eugenics Web Site Martin L. Levitt 112
ADMINISTRATIVE PERSPECTIVES 127 8. In Secret Kept, In Silence Sealed: Privacy in the Papers of Authors and Celebrities Sara S. Hodson 131 9. Southern Family Honor Tarnished? Issues of Privacy in the Walker Percy and Shelby Foote Papers Timothy D. Pyatt 149 10. Balancing Privacy and Access: Opening the Mississippi State Sovereignty Commission Records Sarah Rowe-Sims, Sandra Boyd, and H. T. Holmes 159 11. Archival Access to Lawyers’ Papers: The Effect of Legal Privileges Menzi L. Behrnd-Klodt 175 12. The Buckley Stops Where? The Ambiguity and Archival Implications of the Family Educational Rights and Privacy Act Mark A. Greene and Christine Weideman 181
INSTITUTIONAL PERSPECTIVES 199 13. Trust and Professional Agency in the Archives of Religious Organizations: An Archival Perspective on Confidence Keeping Mark J. Duffy and Christine M. Taylor 205 14. Delta Blues: Changing Conceptions of Privacy and Property, and Their Implications for Corporate Archives Paul C. Lasewicz 226 15. Confidences in Medical and Health Care Records from an Archive Perspective Barbara L. Craig 246 16. The United Methodists and Their Open Records Policy L. Dale Patterson
APPENDICES 269 1: Selected U.S. Constitutional Amendments 269 2: Selected U.S. Federal Statutes Concerning Privacy 271 3: The Family Educational Rights and Privacy Act: Legislative Amendments and Judicial Interpretations Menzi L. Behrnd-Klodt 280 4: The Brave New World of 21st-Century Medical Records Privacy in the U.S. and Canada, Contrasted with the European Data Privacy Model Menzi L. Behrnd-Klodt 285
NOTES 295
EDITORS AND CONTRIBUTORS 371
INDEX 377
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Privacy and Confidentiality Perspectives: Archivists and Archival Records
edited by Menzi Behrnd-Klodt and Peter Wosh
Society of American Archivists, 2005 Paper: 978-1-931666-10-7 eISBN: 978-1-945246-99-9
A diverse selection of thoughtful and provocative essays that explore the legal, ethical, administrative, and institutional considerations that shape archival debates concerning the administration of access to records containing personal information.
AUTHOR BIOGRAPHY Menzi L. Behrnd-Klodt is both an archivist and an attorney, holding advanced degrees in history, library and information science, and law, all from the University of Wisconsin. Currently she is corporate counsel for American Girl, Inc., a children’s book publisher and toy company that is part of Mattel, Inc., where she focuses on intellectual properties, licensing, and business agreements, and she oversees the corporate archives and records programs. Previously she managed research and library services and established the corporate archives at American Girl. She also established the corporate archives at CUNA Mutual Insurance Group, Madison, Wisconsin; was archivist at Circus World Museum, Baraboo, Wisconsin, and the Wisconsin Historical Society, and consulting archivist at Bishop Museum, Honolulu, Hawaii. Menzi consults to many other historical societies, museums, cultural organizations, and businesses on legal, archives, and records issues. Her legal practice encompassed business and insurance law. She frequently speaks at professional meetings on legal issues for archives and teaches basic archival workshops and is a past chair of SAA’s Privacy and Confidentiality Roundtable.
Peter J. Wosh is the director of the Program in Archival Management and Historical Editing at New York University, a position he has held since 1994. Prior to that, he served as director of Archives and Library Services at the American Bible Society and University Archivist at Seton Hall University, where he was also responsible for administering the Archives of the Archdiocese of Newark. Wosh holds a Ph.D. (1988) and an M.A. (1979) in American History from New York University, as well as a B.A. with Highest Distinction in History from Rutgers University (1976). He is a fellow of the Society of American Archivists and has written and spoken widely on archival and history topics. Previous books include Covenant House: Journey of a Faith-Based Charity (Philadelphia: University of Pennsylvania Press, 2005); Spreading the Word: The Bible Business in Nineteenth-Century America (Ithaca: Cornell University Press, 1994); with Joseph Mahoney, The Diocesan Journal of Michael Augustine Corrigan, Bishop of Newark, New Jersey, 1872–1880 (Newark: New Jersey Historical Society, 1987); and Guide to Northern New Jersey Catholic Parish and Institutional Records (South Orange: New Jersey Catholic Historical Records Commission, 1984).
REVIEWS "Privacy and Confidentiality Perspectives fills a crucial void in the corpus of archival literature. . . . Based upon the knowledge and experience of professionals who already have been forced to navigate their way through the maze of competing interests and the seemingly contradictory precedents, the readings describe situations to which archivists from any type of repository can relate. Archival educators especially will find this anthology a gold mine of current information that can be used to stimulate thought and discussion in classes and help to prepare the next generation of archivists for the challenges they will face." --TIMOTHY L. ERICSON, former Director of Archival Studies, University of Wisconsin-Milwaukee
TABLE OF CONTENTS
ACKNOWLEDGMENTS V I I
INTRODUCTION 1
LEGAL PERSPECTIVES 9 1. The Right to Privacy Samuel D. Warren and Louis D. Brandeis 15 2. Privacy William L. Prosser 31 3. The Tort Right of Privacy: What It Means for Archivists . . . and for Third Parties Menzi L. Behrnd-Klodt 53
ETHICAL PERSPECTIVES 61 4. Information Privacy, Liberty, and Democracy Heather MacNeil 67 5. The Archivist’s Balancing Act: Helping Researchers While Protecting Individual Privacy Judith Schwarz 82 6. Privacy Rights and the Rights of Political Victims: Implications of the German Experience Elena S. Danielson 93 7. Ethical Issues in Constructing a Eugenics Web Site Martin L. Levitt 112
ADMINISTRATIVE PERSPECTIVES 127 8. In Secret Kept, In Silence Sealed: Privacy in the Papers of Authors and Celebrities Sara S. Hodson 131 9. Southern Family Honor Tarnished? Issues of Privacy in the Walker Percy and Shelby Foote Papers Timothy D. Pyatt 149 10. Balancing Privacy and Access: Opening the Mississippi State Sovereignty Commission Records Sarah Rowe-Sims, Sandra Boyd, and H. T. Holmes 159 11. Archival Access to Lawyers’ Papers: The Effect of Legal Privileges Menzi L. Behrnd-Klodt 175 12. The Buckley Stops Where? The Ambiguity and Archival Implications of the Family Educational Rights and Privacy Act Mark A. Greene and Christine Weideman 181
INSTITUTIONAL PERSPECTIVES 199 13. Trust and Professional Agency in the Archives of Religious Organizations: An Archival Perspective on Confidence Keeping Mark J. Duffy and Christine M. Taylor 205 14. Delta Blues: Changing Conceptions of Privacy and Property, and Their Implications for Corporate Archives Paul C. Lasewicz 226 15. Confidences in Medical and Health Care Records from an Archive Perspective Barbara L. Craig 246 16. The United Methodists and Their Open Records Policy L. Dale Patterson
APPENDICES 269 1: Selected U.S. Constitutional Amendments 269 2: Selected U.S. Federal Statutes Concerning Privacy 271 3: The Family Educational Rights and Privacy Act: Legislative Amendments and Judicial Interpretations Menzi L. Behrnd-Klodt 280 4: The Brave New World of 21st-Century Medical Records Privacy in the U.S. and Canada, Contrasted with the European Data Privacy Model Menzi L. Behrnd-Klodt 285
NOTES 295
EDITORS AND CONTRIBUTORS 371
INDEX 377
REQUEST ACCESSIBLE FILE
If you are a student who cannot use this book in printed form, BiblioVault may be able to supply you
with an electronic file for alternative access.
Please have the accessibility coordinator at your school fill out this form.
It can take 2-3 weeks for requests to be filled.
ABOUT THIS BOOK | AUTHOR BIOGRAPHY | REVIEWS | TOC | REQUEST ACCESSIBLE FILE
