Pondering Privilege - Society of American Archivists
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Pondering Privilege
What Would Archival Privilege Look Like and
How Would We Get It?
Christine Anne George
Charles B. Sears Law Library
SUNY Buffalo Law School
Background
Research started because of the Belfast Project
“Archives Beyond the Pale: Negotiating Legal and Ethical
Entanglements after the Belfast Project”
Move beyond the theory
What privileges should archival privilege emulate?
How should archival privilege be implemented?
Archival Privilege in 1986
Ann Braden invoked it to protect her collection from
subpoena
Question of first impression—would create a new privilege
Qualified privilege that would use balancing test
Related to academic freedom and tied to researcher’s privilege
Court did not accept the argument
“In such a case, the access restriction agreement must yield to
the judicial process’ search for truth.”
Privileges
State Secrets Privilege
Protects information that the state deems harmful
System in place to allow judges to evaluate the information
without it becoming public
Attorney Work Product Privilege
Not an absolute privilege
Protects information related to litigation
Allows for release of information if deemed necessary
Shield Laws
Created in reaction to Supreme Court ruling in Branzburg v.
Hayes (1972) to protect journalist’s privilege
State law, not federal law
Interpretations from judiciary have expanded the protections
Best example of how to gain privilege