Tuesday, December 17, 2013

Ms. Peppercorn Considers: The Ethical Implications of an Unusual Archival Find

--> We are pleased to bring you the next installment of our occasional advice column, "Ms. Peppercorn Considers":
Dear Ms. Peppercorn
I have an ethics issue on which I would appreciate your thoughts. In researching a rather scandalous divorce case from the 1860s (involving incest and adultery with the local rector), I ran into a private, hand-written copy of the entire court file in the case, including juicy affidavits, letters, and court petitions. The hand-written notebook is part of the family papers of an aristocratic family in the county of Piccallili that was made by the then Earl of Chutney (names changed to protect the innocent) in 1960 when the court records were unsealed. The then Earl of Tuppence subsequently donated his entire family library, including this note-book, to the Bodleian, but the library continues to be housed at the Chutney family estate, where I encountered it. But in making the donation to the Bodleian, the Earl of Chutney “sealed” the document for another 100 years, until the year 2060. This is indicated by a typed statement stuck to the notebook¹s cover stating “sealed until 2060.” This would be no challenge to the diligent historian (that’s me) since the notebook is merely a copy of a public file, now housed in Kew. But my efforts were foiled again when I discovered that when the divorce court records were transferred to the PRO at some point after the notebook was made, all of the affidavits and letters were destroyed in the name of saving space. Thus, this copy is the only complete record of the case I have been able to locate. What legal and ethical constraints am I under with regard to using this notebook that memorializes a public record? Is it, once a public record always a public record? Or is the fact that the Earl of Chutney sealed the copy for another 100 years an exercise of a valid property right? I requested from the now living Earl of Chutney (the grandson of the Earl who wrote the notebook) permission to use the notebook and, after consultation with his lawyers, my request was denied. I am stymied here in Florida. What advice do you and your esteemed readers have for the noble seeker of truth whose efforts are blocked by those seeking to cover up scandalous family secrets?

Sincerely, STYMIED

Ms. Peppercorn's sage response, after the jump.
Dear Stymied:

Well, this is a pretty kettle of fish! Ms Peppercorn’s second ever Consideration has required much digging and consultation, as this is a shocking affair, in every sense of the term. Oscar Wilde said it well: “private information is practically the source of every large modern fortune.” And this rich earl has effectively sealed what were once public records for 200 years. The benefits of privilege are everywhere in this quandary.

Upon receipt of your inquiry, Ms Peppercorn immediately contacted leading archivists. The following are a few choice quotes from their responses, all of which reflect the outrage that the columnist herself believes is only fair. Here goes:

1. “The conventional wisdom is that privacy ends at death, so the lengthy restriction is way overdone. This material could and probably should have been opened decades ago.”

2. “If anyone has already seen the public record, then it is folly to try and seal a transcription of it…. This principle weighed in heavily in the case of the Freud Papers, which were open only to selected scholars and no one else. All it took was for one of the chosen scholars to let an unauthorized person read his copies, and the barn door was wide open. It’s useless to seal after the material has already been accessible for research.”

3. “I am very surprised that the Bodleian Library would leave these records in situ, especially having accepted such a lengthy restriction upon part of them. Unless the Bodleian has someone at Chutney Manor overseeing the records, they are begging for exactly the kind of breach that ‘stymied in Florida’ has inadvertently brought about. There is NO WAY that the notebook should be ANYWHERE among those documents that are made accessible to any researcher (or even to the inhabitants of Chutney Manor, for that matter, since it is now the property of Bodleian and closed to examination). The Bodleian should have that document in its possession under lock and key until 2060; how can they ensure otherwise that they are living up to their end of the donor agreement?!?” and

4. (Peppercorn’s personal favorite) “Very generous of you to share your expertise with your peers. I’m sure they all find it worth far more than the proverbial peppercorn!”

Archivists are on your side, STYMIED. That’s the good news. Now, here’s the kicker; most agree that the mistakes made by the Bodleian Library, the Public Records Office, and the librarian at Chutney Manor all run up against the fact that this is not the actual public record, but a (perhaps redacted or otherwise imperfect?) copy. Here’s what one thoughtful expert said: “My gut reaction is that a COPY of the court record, even if it is a word-for-word transcription, is not a public record UNLESS it was generated by someone employed by the court for that particular purpose.” Most unfortunate.

Ms Peppercorn is inclined to agree with the above assessment, even though she would very much like to learn about this infamous divorce case. For one thing, we have all read about the libel tourism that attracts litigants to UK courts for things like “misuse of confidential information,” in circumstances that show a “reasonable expectation of privacy.” Large payments have been the result. If anything, the law on the question is unsettled, despite a recent victory for speech that doesn’t affect someone with close ties to Britain. But for a British plaintiff (like the Earl of Chutney, we presume) the law just got more supportive. The Ministry of Justice announced only two months ago that losing plaintiffs in cases involving invasion of privacy no longer have to pay the legal fees of the defendant.

There you have it – the standards of archival excellence are all on your side. But the violation of those standards has been undertaken by eminent persons and agreed to by an eminent archive, and they are sticking by their guns. Drat, curses, zut alors. Peppercorn hopes there may be other ways to get at some of the information (newspaper reports of the trial, and the like). Just remember, writing well will be the best revenge against the wages of this particular “large modern fortune,” as Wilde would say.
Do you need advice? Email us if you have a question for Ms. Peppercorn to consider.

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