Do U.S. courts currently recognize an absolute or almost absolute legal right to confidentiality for scholars or archivists? And if they do not recognize such a right, should they?
Some archivists believe that a legal right of archival privilege is needed. Their justification is that if society wants donors to give honest, unaltered records regarding controversial subjects for eventual historical use, archivists need a mechanism to ensure confidentiality. It asserts, in effect, that the needs of future research always transcend the societal needs of the present.
The claim of an absolute right to honor and protect donor-imposed restrictions creates an absolute obligation with difficult ethical implications. Before arguing before a court that a legal right to archival privilege exists, SAA would need to determine whether there is consensus within the profession, how that consensus might be balanced against competing legal and ethical demands, and what the appropriate processes would be for resolving differences of opinion.
Although the Supreme Court may take up the case, for the time being the honest answer to a potential donor is that in most, if not all, instances, an archives would be required to surrender material subpoenaed by a court.