The Right of Access

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by Morgan P. Hanlon, C.P.

Archivists and historians are frequently confronted with questions of access—who may be allowed to see what and when in an archives holdings? It’s a sensitive issue touching on some emotionally charged topics, e.g. an individual’s right to his or her “good name”, their right to privacy and confidentiality, the right of the public to be informed or “freedom of information”, the truth. The question of access to both public and private documents involves numerous points of both civil and canon law. (Did you know that your baptismal, profession, and ordination records are public as well as private documents?)

American Passionists will remember the recent dispute between the Chief Justice of the U.S. Supreme Court and the Librarian of Congress. The late Justice Thurgood Marshall had left his papers to the library of Congress. The papers gave some interesting insights into how the Court reached its decisions in some very recent and very controversial cases, such as ones dealing with abortion and civil rights. The Librarian of Congress interpreted the legal “instrument of gift”, whereby Justice Marshall had donated his papers to the library, as giving him some discretion in deciding when and to whom access to the papers might be granted. The papers were, thus, opened to researchers or scholars who were “engaged in serious research”. The Washington Post published a series of articles based on these papers and the fat was in the fire.

Chief Justice Rehnquist, speaking obviously for other members of the Court as well as for himself, criticized the Librarian of Congress for exercising “bad judgment” in opening the papers so soon after Justice Marshall’s death and without consulting either the members of the Court or Marshall’s family. Chief Justice Rehnquist hinted that he and some of the other Justices were considering leaving their papers to some other repository than the Library of Congress. The Marshall family also expressed indignation and disappointment. The family and Justices were supported by a number of Senators who urged the Librarian to close the papers or at least severely restrict access to them for an unspecified length of time.

Despite the pressure he was under, James Billington, the Librarian, stood by his decision and the papers remain open and available to “scholars and serious researchers”.

Just as Chief Justice Rehnquist and the Marshall family had their supporters in this dispute, so also did James Billington who was backed by the archival, library, and historical communities. The interest of these groups centered about the issues of freedom of information and of “equal access” to that information. The professional archivists organization—The Society of American Archivists—quoting their Code of Ethics on June 12, 1992, adopted a resolution to the effect that while archivists generally discouraged unreasonable restrictions on access to or use of archival material, if such conditions were attached to gifts, those restrictions should be clearly stated and of limited duration. The S.A.A. considered it to be a “grave disservice to Justice Marshall, to scholars and other researchers, to the American people, and to the entire archival profession to ignore the will of the donor and to close or restrict access to the Thurgood Marshall Papers.”

The S.A.A. made some important points in this statement. First, it was taking its stand on the side of the citizenry’s right of free and equal access to information. In this case information about the inner workings of the highest court in the land. The Justices of that Court apparently feared a “chilling effect” upon themselves if the true facts of their deliberations were made known while feelings about the issues at stake were still running high. To forestall this, they wished to sequester or “sit on” the facts.

The “Case of Justice Marshall’s Papers”, as it has already been called, is not irrelevant to our situation as members of the Congregation and the Church. Between the right of privacy, or confidentiality, and the right of equal and free access to information. To this day the official title of the Vatican Archives is “Archivio Segreto di Vaticano”—”The Secret Vatican Archives” although they have been thrown open to researchers for a century now. When the emphasis is on secrecy, the result is that we can know little or nothing about the people who were the community. The history which an archives contains becomes simply the story of its buildings and its programs.

On the other hand, the function of an archives is not to wash dirty linen in public—it is to make the truth available. The truth about priests today, for instance, is not that most are pedophiles, although the popular media may foster that impression. The only defense against such imputations is the facts. The purpose of an archives is to provide information; an archives is a repository of facts. It should be stated clearly that there are some facts which are and should be confidential. Maybe it’s a case of someone’s good name. Maybe it’s a question of a legal matter under adjudication. However the time always comes for the truth, the whole truth, and nothing but the truth to be known. At times it may be necessary to hold some facts close to one’s vest. Sooner or later, however, if truth is to prevail, all the facts—like a poker hand—must be put on the table, face up!

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