Tuesday, June 22, 2021

Guest post: Lvovsky on the ethics of archival confidentiality agreements

[This is the third in a series of guest posts by Anna Lvovsky. Her book, Vice Patrol, examines the history of antigay policing at midcentury.]

In my previous post, I wrote about a hidden gem in the archives of the New Jersey liquor board. Today, I want to focus on a question of professional ethics: the difficulties of telling honest stories based on information produced through confidential records.

Among my most tantalizing sources in Vice Patrol were field reports produced by the the American Far Foundation’s Survey of the Administration of Criminal Justice in the 1950s.  The Survey was carried out by a group of researchers who, over the course of several months in 1956 and 1957, conducted extensive interviews with employees at all levels of the criminal justice system in Kansas, Wisconsin, and Michigan: policemen, prosecutors, probation officers, defense attorneys, judges, even staff at psychiatric clinics. The study is perhaps most famous for illuminating the vast role of police discretion in the field. Less famously, it is an astonishing resource on the law’s encounters with queer life at midcentury. Under the cover of confidentiality, participants offered uniquely candid accounts of their work—ones that both confirmed more circumstantial evidence found in other sources and, in many cases, upended existing narratives about the internal operations and politics of antigay policing.

At the same time, my reliance on the Survey raised some tricky methodological and ethical questions. The researchers’ reports all identified their subjects by name, but they were produced under the understanding that no identifying information would be disclosed. To gain access to these reports, I signed an agreement pledging to uphold those same standards of confidentiality. As a matter of archival process, of course, that agreement is completely understandable. But it raised a number of quandaries.

First, several individual who appear in the Survey’s reports were prominent figures in public debates about antigay regulation at midcentury. Some, in fact, feature in other parts of my book based on their published writing or public statements. In context, failing to attribute their statements in the ABF’s records involved a significant narrative loss, preventing readers from drawing connections among different debates involving the same individuals and identifying fruitful nuances in their positions. Many of these individuals, one might assume, were not among those motivated by the researchers’ offer of confidentiality, and would not have objected to having their names revealed. But of course that wasn’t my decision to make.

Second, revealing certain speakers’ identities would have, if anything, rehabilitated their reputation. One trial judge in Detroit, for example, was known—and indeed reviled—by vice officers as a uniquely defendant-friendly figure, one who commonly dismissed antigay charges on pretextual grounds. Among this judge’s proudest moments: he once telephoned a local principal to ensure that a gay schoolteacher arrested for solicitation kept his job—an astonishing act given more familiar accounts about the adverse consequences of antigay arrests and the moral panic surrounding teachers specifically. This same judge appears (named) in another historical work based on a public comment at a trial, and on the basis of that comment alone he is presented as particularly conservative: a symbol of law’s antipathy to queer defendants. Naturally, that other case reveals an equally valid facet of his personality. But our reading of that case—and, more importantly, its broader lessons about the personalities and pressures shaping judicial encounters with gay men at midcentury—would be dramatically changed by the information in the Survey.

Third, and perhaps most troublesome, such confidentiality agreements deepen the problem of asymmetric privacy protections in delicate fields of history like antigay policing.  Given that legal records have long presented an unusually rich glimpse of queer life in the early twentieth century, historians have long had to walk the line between telling a useful story and respecting personal privacy.  On the one hand, doing justice to the realities of gay life in these years—the good and the bad—requires foregrounding its human elements, identifying its members as real-world individuals with rich backgrounds and biographies. At the same time, that history often resurfaces painful and often mortifying experiences—ones these men wanted and did their best to forget. Ultimately, my approach has been to use a defendant’s name only when two conditions are met: first, a name is genuinely necessary to tell the story coherently, and second, the defendant exercised at least some choice in creating a lasting record—typically, by appealing to a higher court. Whenever possible, I also name the vice officers or prosecutors involved in the case, both to provide some narrative granularity that doesn’t simply rest on outing defendants and (as it were) to maintain some reciprocity of public shaming.

In context, it’s hard not to remark on the imbalance of power perpetuated by confidentiality agreements like those I signed—how such archival practices give the state actors involved in antigay policing stronger protections than defendants themselves could possibly claim. Precisely because of their voluntary participation in the criminal system, the individuals interviewed in the Survey claimed greater bargaining power over not just their involvement in the antigay policing, but also in the production of historical records about their work. Naturally, this conundrum isn’t exclusive to confidential interviews, nor do I question the internal logic of an archive’s decision to respect researchers’ confidentiality agreements. But it is worth considering the outer boundaries of an archive’s (and a historian’s) obligations to enforce such agreements, particularly when it comes to records produced in unequal conditions.

Should archives ever exempt researchers from agreements imposed by those who produced and donated the records? If so, how many decades after the date of production? What if, in light of intervening cultural shifts, once-fraught details in those records have become uncontroversial, or even flattering? Who, if anyone, should be allowed to make the choice? The archivists? The original researchers? Any surviving relatives?

My own sense is that some combination of these three considerations—passage of time, lack of controversy, and approval by the estate—can support easing confidentiality agreements in some cases. But I certainly don’t claim to have clear answers as to where to draw the line. (Among other things, of course, what counts as controversial is inherently subjective, and hardly historically linear.) Regardless, I hope that future discussions of Vice Patrol—and my own future research—will create more opportunities to sound out these questions with other historians and archivists working with similar sources.