Pondering Privilege
What Would Archival Privilege Look Like and
How Would We Get It?
Christine Anne George
Charles B. Sears Law Library
SUNY Buffalo Law School
Background
 Research started because of the Belfast Project
 “Archives Beyond the Pale: Negotiating Legal and Ethical
Entanglements after the Belfast Project”
 Move beyond the theory
 What privileges should archival privilege emulate?
 How should archival privilege be implemented?
Archival Privilege in 1986
 Ann Braden invoked it to protect her collection from
subpoena
 Question of first impression—would create a new privilege
 Qualified privilege that would use balancing test
 Related to academic freedom and tied to researcher’s privilege
 Court did not accept the argument
 “In such a case, the access restriction agreement must yield to
the judicial process’ search for truth.”
Privileges
 State Secrets Privilege
 Protects information that the state deems harmful
 System in place to allow judges to evaluate the information
without it becoming public
 Attorney Work Product Privilege
 Not an absolute privilege
 Protects information related to litigation
 Allows for release of information if deemed necessary
Shield Laws
 Created in reaction to Supreme Court ruling in Branzburg v.
Hayes (1972) to protect journalist’s privilege
 State law, not federal law
 Interpretations from judiciary have expanded the protections
 Best example of how to gain privilege