Historians, Privacy, and the Archives

Moira Hinderer

Recently the issue of privacy laws has been a hot topic among historians. So what do these laws mean to historians of childhood? Are there some types of research that can no longer be done because of new restrictions? In my decidedly unscientific poll, historians report that for the most part they are able to use the research exemptions written into privacy laws to access restricted records relating to children. Historians report using records held by adoption and foster care agencies, residential schools, and child welfare agencies, including case histories. While historians are usually able to see records, getting access is tempered by the high degree of uncertainty, anxiety, and frustration many experience during the process.

Of particular concern right now is the impact of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which increases privacy restrictions on patient records. Like most other legislation designed to protect privacy, HIPAA does include exemptions for researchers; however, Steven E. Novak, head of Archives and Special Collections at Columbia University Health Sciences Library, argued in a letter to the New York Times that, "while the act does provide mechanisms for research access to patient records, the process is so convoluted and definitions so opaque that many institutions, especially those without an archivist or librarian on staff, may bar access simply to protect themselves." As Novak points out, just because a researcher is not legally prevented from viewing records does not mean that the organization in control of records will grant permission.

Novak's emphasis on the work of professional archivists is also an important one. Archivists generally want to make their materials available to researchers and will do so if granting access is "compatible with institutional policies, individual rights, donor agreements, and judicious use of archival resources." In practice many historians reported that archivists were extremely helpful even when helping involved extra work, like removing identifiers from case files so that historians could use them.

Accessing private collections that are still under the control of the organization that created them can be a much more tricky and personal process. Administrators who control these collections may be less familiar with research exemptions and have less investment than archivists in opening collections for research. They may fear that they do not have the resources to maintain control over materials while a researcher is using a collection. The suspicion that a scholar will produce a negative portrait of an institution can also lead to a refusal of access. Fear of lawsuits presents a further concern for those in charge of archival collections, although none of the archivists I spoke to at the University of Chicago was aware of any cases where an organization or archive was actually sued for allowing researchers to see records.

For some collections, perceptions of the researcher’s reputation, motive, compliance, and likely interpretation of records can prove even more important than official access policies. Jessa Chupik reports that the process of accessing patient files of children with intellectual disabilities "was not difficult but it does involve catering to the individual requests of the access officer. I have learned to agree to everything—otherwise access may not be granted." Many of the historians I spoke to describe the process of gaining access to restricted records as a confusing, uneven, and ultimately personal process. "Knowing someone" is reportedly one of the most common and effective ways of getting permission to use records. While personal connections can get you in, they can also keep you out. Eve P. Smith reports that her earlier career in child welfare had a big impact on her access to records for better and worse. While some knew her work, respected her and were more likely to grant access, others feared what she might say, and would not grant access at all.

In this atmosphere of unease, developing a strategy to gain access to a collection is very important. Pat Ryan offers the following very sensible advice for simplifying the access process:

Other historians suggested that researchers be prepared to clearly describe why they need to see the records and to explain how they plan to protect the privacy of individuals who appear in the records.

While getting permissions signed off on is an important step, it is not the end of the process. A graduate student I recently spoke to, who asked to remain anonymous, illustrates this point. Anne (a pseudonym) received unexpected permission to see the records of an institution for children. These records will form a large part of her dissertation research. While Anne was delighted, she also feared that the administrator who signed off did not entirely understand the potential ramifications of her permission. The administrator gave Anne access because she knew Anne and trusted her. She also hoped that Anne’s work might provide a more balanced view of an institution that had previously received some bad press. While Anne plans to use the records in a responsible manner, she worries that the administrator’s bosses would be very upset to find out that a researcher had gotten such full access. Anne’s worst fear is that permission to view the collection will be pulled while she is already deep in her dissertation.

While the many fears expressed by researchers represent worst-case scenarios, they are not without merit. The case of Andrea D. Hamilton offers a lesson to any researcher who is not concerned about maintaining access to collections. When Hamilton began her research in the archives of Bryn Mawr School she signed off on a standard form stating that the records she used could not be published without permission of the Bryn Mawr School Archivist. When the school later realized that Hamilton had written about several issues in Bryn Mawr’s history that they considered sensitive, they refused permission, jeopardizing Hamilton’s pending book contract. The school ultimately overturned its decision in the face of public pressure from a group of historians.

So what are historians to do? Pushing for reforms like greater standardization of archival access could well lead to increasing restrictions for the reasons outlined by Steven Novak. For the time being we work with a flawed and frustrating system that does ultimately allow most researcher to see most of what they want most of the time. Given the present situation here are some basic suggestions for making the system we have now work to our advantage: