By John A. Neuenschwander
In a recent posting on Oral History listserv a submitter indicated that she was about to begin an oral history project with undocumented workers and wished to put some safeguards in place to prevent unauthorized access. To protect the identities of the narrators several respondents suggested that pseudonyms should be created for each interviewee. One of these respondents recommended that the document containing the pseudonym/real identity match-up be transmitted for safekeeping to a location abroad. Another responder indicated that in addition to the use of pseudonyms the transcripts of the interviews should be stripped of all identifying information and the recordings destroyed. A third responder indicated that any identifying information provided by an interviewee is always accepted without question. If it later comes to light that a particular interviewee is undocumented that individual will not be featured in any publication or broadcast.
Obviously the threat of a subpoena from a prosecutor who is looking into the immigration status of an individual is a very real possibility. Furthermore, the ability of a program or archive to bar access to interviews and /or identifying information based solely on a release agreement promising anonymity is highly doubtful. At this writing there are no recognized academic or archival evidentiary privileges on either the federal or state level that would protect the content and/ identity of the interviewees from discovery via a subpoena. While the various approaches suggested by the responders to protect interviewees may well be effective in preventing access to their true identities or at least make access more difficult, there is a legally sound method that is available to any researcher who is affiliated with a college or university. This protective device is appropriately named a Certificate of Confidentiality. Once a study is approved by an Institutional Review Board (IRB), the researcher can apply directly to the National Institute of Health (NIH) for a Certificate. The purpose of these Certificates is to encourage the study of sensitive biomedical and behavioral issues. The Certificate in effect establishes a legal shield that precludes the disclosure of any identifying information “…in any civil, criminal, legislative, or other proceeding whether at the federal, state, or local level.” This shield is obviously intended to reassure study participants and researchers that identifying information which could damage one’s reputation, financial standing, employability, insurability or even lead to criminal charges will be continuously protected. One of the examples that the NIH provides on its Website involved a biomedical study of recurrent early-onset depression. The 750 families who participated in the study were interviewed and provided DNA samples. A Certificate of Confidentiality still provides protection to the families involved even though the study itself is officially completed.
The initial posting that fostered this discussion underscores the importance of anticipating both future legal and ethical issues especially if the proposed project will seek information regarding illicit or illegal behavior. The Oral History Association’s General Principles for Oral History recognizes that such projects may need to offer interviewees anonymity and goes on to suggest that “…this should be negotiated in advance with the narrator as part of the informed consent.” If there is a grant of anonymity to interviewee, then according to the OHA’s Best Practices for Oral History (Post Interview #7): “The repository should comply to the extent to which it is aware with the letter and spirit of the interviewee’s agreement with the interviewer and sponsoring institution.” This latter ethical responsibility would, of course, include mounting a legal defense against a subpoena seeking the true identities of interviewees who were promised anonymity.
John A. Neuenschwander is professor emeritus of history at Carthage College and a municipal judge for the City of Kenosha, Wisconsin. He is the author of A Guide to Oral History and the Law and lectures nationwide on the legal aspects of oral history.