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Published in: Argiefnuus/Archives News 43/4 (June 2001) [Festschrift Verne Harris] pp. 70-

77.

Eric Ketelaar

The Ethics of Preserving and Destroying Private Archives

As gatekeepers of information, information professionals have a greater ethical responsibility than ever before to their users, to themselves, to the profession, and to society. 1

The second edition of Verne Harris’ Exploring Archives contains a number of extensively revised chapters. 2 One of these is chapter 11 on archival ethics. Archival ethics also figured prominently in “Archives of the People, by the People, for the People”, the keynote speech I made at the symposium “Archives and Users in Changing Society” during my visit to South Africa in August 1992. 3 This was also the first time Verne and I worked together. We don’t only share a deeply felt concern about archival ethics, but we both also believe strongly in the necessity of an ongoing debate on ethical issues. Only by discussing the moral issues, on the basis of events in reality or by testing hypothetical scenarios, the archivist can arm himself or herself for the difficult choices he or she may have to make. 4 This is exactly what chapter 11 of Exploring Archives is about.

As a point of departure for his discussion of archival ethics Verne takes the novel The Archivist by Martha Cooley and some of the arguments concerning this novel that I developed in my inaugural address at the University of Amsterdam in 1998. 5 In my address I stated that I considered Matt Lane, the archivist in the novel, to be guilty of a serious offence against the professional code of archivists. 6 By burning the letters written by T.S. Eliot to his friend Emily Hale, Lane decided to give precedence to the dead over the living, to favour the wish for secrecy expressed by Eliot over the wishes of Emily Hale (who donated the letters to the archivist’s collection) or the interests of posterity. Lane muses:

“An archivist serves the reader’s desire. Yet what of the writer’s – is it of no consequence? … Eliot’s letters to Emily were not … his bequest. We were never meant to read them: only she was, and she relinquished them. Poetry was what he left us. It was all that mattered. The rest is not our business.” 7

The aspect I criticised was that of the archivist as a censor who decides that the memory of Eliot should be kept through his poetry, not through these letters. I censured the archivist who was guided by changes in his personal life to take a decision he was not entitled to take, neither legally nor morally.

Verne, too, questions the archivist Lane “playing memory god. In destroying the letters is he protecting Eliot’s rights, serving the writer’s desire, or merely playing god? Is he obeying his conscience, or is he in a symbolic act, literalising his struggle with the memory of another writer – his wife?” 8 But, contrary to my opinion, Verne suggests that the fictional archivist’s decision may have been justifiable, not right.

Verne and I both agree that the way in which Lane reached his decision to destroy the letters cannot be justified. It is essential for any archivist when forced to take a stand in an ethical issue, when resolving conflicting rights and interests, to follow an accountable

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procedure, to have, as Verne puts it, the how right. That includes testing one’s views and feelings with respected colleagues and friends. Without such a test “we abandon accountability, and risk assuming godlike powers,” Verne writes.

The procedural guidelines proposed by Verne are not a recipe, or a blueprint for resolving competing rights and interests. Neither will these help a whistleblower, like Verne. Such procedural guidelines (or the sound advice to whistleblowers given by Sissela Bok 9 ) concern the how and not the what or why of choosing in an ethical dilemma. In “Archives of the People, by the People, for the People” I advocated using a test, based on criteria proposed by the American Herbert Kelman and introduced into the archival discourse by Heather Macneil. 10 It is a test to assess whether research using personal information, is concurrent with human dignity. I believe that the test may also be applied in cases where a difficult choice has to be made between many competing moral obligations, individual and societal rights and expectations.

“The first and fundamental premise,” Sissela Bok writes, “is that of individual autonomy over personal information. It asks that we respect individuals as capable of having secrets.” 11 Kelman considers violating people’s autonomy as inconsistent with respect for their dignity. He understands human dignity in the Kantian sense: man has to be treated as an end, never merely as a means towards some extraneous ends. According to Kelman any invasion of people’s privacy or any breach of a promise of confidentiality “is inconsistent with respect for their dignity and therefore a presumptive, or prima facie cause of harm.” 12 The test consists of three questions: (i) To what risk is human dignity violated by the decision? (ii) Is there a competing moral imperative requiring such violation? (iii) Is that moral imperative justified by any tangible or compelling social benefit, primarily to the records’ subjects, secondarily to third parties and thirdly to society as a whole?

Archivists “fear the smell of burnt letters”, 13 but in most cases their fear is caused by heirs and executors who want to destroy papers in an attempt to ‘engineering of history’. 14 The latter term is used by Joseph Sax whose recent book Playing Darts with a Rembrandt. Public and Private Rights in Cultural Treasures describes a number of cases on access restrictions concerning private archives. However, Sax does not deal with the implications of a decision by the creator of an archive to destroy his or her papers and the subsequent refusal by the heirs to execute this decision because they want to preserve (and make use of) the papers.

Let me try to answer the three questions of the Kelman-test. (i) As Henry James wrote “A man has certainly a right to determine what the world shall know of him and what it shall not; the world’s natural curiosity to the contrary notwithstanding.” 15 I would argue that the decision to preserve the papers against the creator’s explicit will, to serve as one more source of knowledge regarding the creator’s life or for any other reason, would entail using the archives creator as a means, not as an end. (ii) This would only be outweighed if there would be a moral imperative to refuse executing his or her will. This would clearly be the case if preservation of the papers were necessary to prevent harm is done to innocent persons. 16 There is also Beccaria’s and Bentham’s imperative to do “the greatest good for the greatest number” 17 . Preservation of the archives of a public figure may fall into this category. (iii) Depending on the nature of the papers, society at large would certainly benefit from their preservation, whereas the interests of the records’ subjects and third parties could be protected by, for example, temporarily restricting access.

Application of the test would then result in a refusal of the request to destroy the papers, either for the whole archive or for a part. The same test can also be applied in the opposite case: destruction of papers by over-protective heirs, against the will of the creator, either

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because they believe that their creator would have wanted this, or – even worse – because the heirs might be embarrassed by preservation of the papers and access to them. 18

So far the questions of the Kelman-test were used in the case of heirs and executors. What is the position of an archivist when papers are donated to an archival institution? The archivist may learn, either when the archives are acquired, or at a later stage, that the creator of the archive had wanted their destruction. Did the heirs apply the Kelman-test and was the outcome positive? If not, then their unethical behaviour may implicate the archivist who accepts the papers. The International Council on Archives’ Code of Ethics warns “Archivists should be aware that acquiring documents of dubious origin, however interesting, could encourage an illegal commerce." 19 Likewise, by accepting archives which were meant to be destroyed, the archivist condones the breaking of a promise. As Heather Macneil compellingly asks, “Would we choose to live in a world in which individuals were routinely permitted to break promises if doing so would produce knowledge they thought was worth having?” 20

I would suggest that the archivist ensures that the Kelman-test is applied, either by the heirs or by the archivist, in consultation with colleagues. I propose also that every archival institution develops a protocol for this procedure, including the requirement to document the test properly. If, after all, the final answer to the threefold ethical question is negative, then the wish of the creator of the archives has to be met by destroying the papers. Not, as the archivist Lane did, in secrecy and in the middle of the night, and not because some individual archivist thinks better, but as the outcome of a thorough and difficult ethical reasoning for which the archivist and the peers he or she involves in the decision making, are fully responsible and accountable.

1 Wallace C. Koehler and J. Michael Pemberton, “A Search for Core Values. Towards a Model Code of Ethics for Information Professionals”, Journal of Information Ethics 9 (2000) 37.

2 Verne Harris, Exploring Archives: an Introduction to Archival Ideas and Practice in South Africa, second edition (National Archives of South Africa, Pretoria 2000).

3 Eric Ketelaar, “Archives of the people, by the people, for the people”, in: S.A. Argiefblad / S.A. Archives Journal 34 (1992) 5-16, reprinted in: Eric Ketelaar, The Archival Image. Collected essays (Verloren, Hilversum 1997) 15-26.

4 Frederick C.J. Ketelaar, “Quis custodiet custodientes ?”, Nederlands Archievenblad 88 (1984) 89-91; idem, “De archivaris en de levenden”, Nederlands Archievenblad 89 (1985) 119-121; idem, “Qui desiderat pacem”, Nederlands Archievenblad 90 (1986) 97-102.

5 Martha Cooley, The Archivist. A novel (Abacus, London 1998); Frederick C.J. Ketelaar, Archivalisering en archivering. Rede uitgesproken bij de aanvaarding van het ambt van hoogleraar in de archiefwetenschap aan de Universiteit van Amsterdam op vrijdag 23 oktober 1998 (Samsom, Alphen aan den Rijn 1998). Part of that address (but not the discussion of Cooley’s The Archivist) was later published in English: Eric Ketelaar,

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“Archivalization and Archiving”, Archives and manuscripts. The Journal of the Australian Society of Archivists 27 (1999) 54-61.

6 The following summary did not figure in the English summary of the address which was used by Verne Harris. See Harris, Exploring Archives, 69.

7 Cooley, The Archivist, 322-323, as quoted by Harris, Exploring Archives, 91.

8 Harris, Exploring Archives, 71.

9 Sissela Bok, Secrets. On the Ethics of Concealment and Revelation (Vintage Books, New York 1989) 210-229.

10 Heather Macneil, “Defining the limits of freedom of inquiry: the ethics of disclosing personal information held in government archives”, Archivaria 32 (Summer 1991) 140; Heather Macneil, Without Consent. The Ethics of Disclosing Personal Information in Public Archives (Society of American Archivists and Scarecrow Press, Metuchen and London 1992)

164-172.

11 Bok, Secrets, 120.

12 Macneil, Without Consent, 166, 171.

13 Mary Sarah Bilder, “The Shrinking Back: The Law of Biography,” Stanford Law Review 43 (1991) 299, 331 n. 176, quoted by Joseph L. Sax, Playing Darts with a Rembrandt. Public and Private Rights in Cultural Treasures (The University of Michigan Press, Ann Arbor 1999 (hardcover), 2001 (paperback)) 119.

14 Sax, Playing Darts, 108.

15 As quoted by James’ biographer Leon Edel, Literary Biography (Anchor Books, Garden City 1959) 37.

16 Bok, Secrets, 121, adds “or turn someone into an unwitting accompliced in crime”.

17 Originally: the greatest happiness of the greatest number. See Richard Bellamy (ed.), Beccaria, On Crime and Punishments and Other Writings (Cambridge University Press, Cambridge 1995) 141; Ross Harssison, Bentham (Routledge and Kegan Paul, London, Boston, Melbourne and Henley 1983) 167-194.

18 Sax, Playing Darts, 134-142.

19 Available on www.ica.org

20 Macneil, Without Consent, 171.