The Right of Access
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.
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