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Pondering Privilege What Would Archival Privilege Look Like and How Would We Get It?

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

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Pondering Privilege What Would Archival Privilege Look Like and How Would We Get It?

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  1. Pondering PrivilegeWhat Would Archival Privilege Look Like and How Would We Get It? Christine Anne George Charles B. Sears Law Library SUNY Buffalo Law School

  2. 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?

  3. 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.”

  4. 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

  5. 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

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