SAA Privacy & Confidentiality Roundtable Newsletter - 9/12/2012

THE KEYHOLE

Newsletter of the Privacy & Confidentiality Roundtable, Society of American Archivists, September 12, 2012

A LITTLE HISTORY

In the 1990s SAA meetings included an informal breakfast for people to discuss balancing privacy and access in archival practice. Ruth J. Simmons (Rutgers) convened the early morning discussions, promoted sessions on the topic, and eventually shepherded the group to achieve roundtable status. The discussions, panel  sessions, and programs provided context for Privacy & Confidentiality Perspectives edited by Roundtable members Menzi L. Behrnd-Klodt and Peter J. Wosh (SAA, 2005). The sessions also provided substantial content for The Ethical Archivist by Elena Danielson (SAA, 2010). As of August 2012 there are 507 member/participants in the P&C Roundtable. SAA  supports a Roundtable microwebsite and a listserv so that all the members have a forum for participation. The website includes a growing bibliography on privacy in archives; the steering committee welcomes additional citations as well as annotations. Roundtable meetings are well attended, but many members simply participate online. (More information on the P&C Roundtable history would be most welcome. Please contact Elena Danielson at elenad@stanfordalumni.org).

CURRENT LEADERSHIP

Elena Danielson, Chair (2012-2013),Hoover Institution Archives, Stanford University, retired
MenziBehrnd-Klodt, Vice-Chair/Chair Elect (2012-2013), Klodt and Associates
Phoebe Evans Letocha, Immediate Past Chair (2012-2013), Johns Hopkins Medical Institutions
Amy Fitch, Steering Committee Member (2011-2013), Rockefeller Archive Center
Erin O’Meara, Steering Committee Member (2012-2014), Gates Archive
Ryan Speer, Steering Committee Member (2012-2014), Virginia Tech University
Brittany Parris, Web Liaison (2010- ), Jimmy Carter Library & Museum
Linda Long, Representative to the Standards Committee (2010-2013), University of Oregon
Dennis Meissner, Council Liaison (2010-2013), Minnesota Historical Society

Previous past chair: Heather Dean, Yale

SAA ANNUAL MEETING IN SAN DIEGO

1)     2012 P&C Roundtable Meeting: The Privacy and Confidentiality Roundtable met Wednesday, August 8, 5:30 pm – 7:30 pm. The new steering committee was introduced followed by a lively program and discussion.
2)     After the business meeting, the roundtable hosted “Reconciling Access and Privacy: Opening Archives of the Recent Past,” organized by Laura Clark Brown, Nancy Kaiser, Aprille Cooke McKay, and Kelly Wooten. They used case studies to advocate for greater emphasis on open access to archives. Phoebe Evans Letocha shepherded this program for the RT.
3)     Report on SAA Session 107: Phoebe Evans Letocha also shepherded a 2012 session proposal to examine medical privacy issues “From Hidden Collection to International Incident: The John Cutler Papers and the Guatemala Syphilis Experiments.” Joan Echtenkamp Klein (University of Virginia) chaired the panel. Papers were presented by Marianne Kasica (University of Pittsburgh), Robert Richards (NARA, Atlanta), and Paul A. Lombardo (Georgia State University). Kasica described how the collection was acquired by the University of Pittsburgh and then the steps taken to inventory, process, describe, and create an online finding aid for it by 2002. She also explained the access restrictions imposed by Dr. Cutler when he donated the collection. Only after his death in 2003 did staff seek permission to make the collection available to historian Susan Reverby, who did not examine the papers in detail until 2009. Reverby revealed the secret experiments to the public in her 2010 article, which caused this to become an international incident. Richards described what happened to the collection when it was transferred to the National Archives as federal records. He discussed the steps that NARA took to digitize the collection to make it available online. Staff had to balance the need to protect the privacy of the subjects of the experiments while facing deadlines and pressure to assure transparency and access to content that is graphic in nature. Lombardo, who was a member of the Presidential Commission for the Study of Bioethical Issues discussed its mandate to document what happened in the experiments. He showed how the Commission was able to trace through an examination of the records what happened to individual subjects of the experiments. The audience for the session was standing room only. It provoked thoughtful questions and discussion throughout the meeting.
4)     Bylaws: SAA Council requires all roundtables to post bylaws. Amy Fitch will be looking at possible templates for creating a simple and flexible governing structure.

PROJECTS

1)     Bibliography: P&C has a privacy bibliography that needs updating. Please contact Ryan Speer with suggestions for useful citations and annotations: rps@vt.edu
2)     E-Manual: Linda Long is working on a privacy e-manual: llong@uoregon.edu.
3)     Program Proposals: Erin O’Meara is on the 2013 Program Committee. As a committee member, she cannot make proposals herself, but she can help by advising on privacy-related proposals and strongly suggest proposers get in touch with the RT for endorsement: omeara.erin@gmail.com.
4)     Website: Recommendations for the group web page should go to Brittany Parris: Brittany.Parris@nara.gov.

CALL FOR ARCHIVISTS

At the P&C Roundtable Meeting in San Diego, Dr. Susan Lawrence of the University of Nebraska issued a call for archivists’ participation in a new project. Dr. Lawrence is a historian working on a book entitled Privacy and the Past, which includes a chapter on archives. She is looking to interview archivists for a sense of how decisions are made with regard to privacy and confidentiality in providing access to information on the dead. This can include medical, financial, or sexual identity information, among other things. Her IRD-approved project will look at what historians should know about the decision-making process for such access.

LEGAL UPDATES

Update on Regulations Concerning FERPA (Family Educational Rights and Privacy Act)

A December 1, 2011, U.S. Department of Education (DOE) press release (http://www.ed.gov/news/press-releases/us-education-department-announces-new-measures-safeguard-student-privacy)announced new regulations concerning the Family Educational Rights and Privacy Act (FERPA) to increase the DOE’s “ability to hold those who misuse or abuse student data accountable and ensuring our taxpayer funds are invested wisely and effectively.” The new regulations would give schools “the flexibility to pursue routine uses of information without getting prior consent while allowing them to prevent those who may misuse or abuse student information from accessing it,” avoiding uncertainty “about where state sunshine laws left off and where FERPA picked up.” The increased sharing is intended to facilitate the use of data in statewide longitudinal data systems (SLDS) by expanding the redisclosure authority in FERPA “to make further disclosures of personally identifiable information from education records, without the consent of parents or eligible students, on behalf of the educational agency or institution from which the PII was obtained.” For example, “states will be able to determine which early childhood programs prepare kids for kindergarten. High school administrators will now be able to tell how their graduates did in college. And states will be able to enter into research agreements on behalf of their districts to determine how best to use limited education funding during tough economic times.” The new regulations also aim to “fix the gap” in protection by extending accountability to institutions and entities without students in attendance, such as student lenders, which have access to student records protected by FERPA. An editorial compilation of CFR material and Federal Register amendments concerning FERPA, prepared by the U.S. Department of Education, may be found at http://www2.ed.gov/policy/gen/reg/ferpa/index.html

Few cases to date discuss the intersection of FERPA’s protections with federal or state Freedom of Information Acts (FOIA). In a 2011 case, a federal judge in the Northern District of Illinois ruled that FERPA and the Illinois (FOIA) could not be used in concert to allow University of Illinois officials to refuse to release student admissions records in response to media requests. Commentators do not believe that this ruling will have a broad reach, however.

Citation: http://www.insidehighered.com/news/2011/03/1/federal_judge_rejects_u_of_illinois_attempt_to_use_privacy_law_to_shield_admissions_records

Health Insurance Portability and Accountability Act (HIPAA)
The U.S. Department of Health and Human Services on May 31, 2011, announced proposed changes to the HIPAA Privacy Rule pursuant to the Health Information Technology for Economic and Clinical Health (HITECH) Act, which is part of the American Recovery and Reinvestment Act of 2009. The rule would give people the right to get a report on who has electronically accessed their protected health information. (See http://www.hhs.gov/news/press/2011pres/05/20110531c.html and http://www.gpo.gov/fdsys/pkg/FR-2011-09-14/pdf/2011-23525.pdf for more information.)

Menzi L. Behrnd-Klodt, September 3, 2012

THANK YOU:  A BIG THANK YOU TO PHOEBE EVANS LETOCHA FOR SERVING AS 2012 CHAIR AND SPONSORING EXCEPTIONAL PROGRAMMING ON THESE KEY P&C ISSUES.

The Keyhole newsletter is emailed to all members signed up with the Society of American Archivists Privacy and Confidentiality Roundtable. The newsletter will be issued several times a year, basically whenever there is enough content worth reporting. If you wish to unsubscribe or for comments and questions about the newsletter and roundtable, please contact the chair, Elena S. Danielson, elenad@stanfordalumni.org.