This week’s topic excites me for a number of reasons:

  1. I’ve always loved etymology, so it’s fascinating to see someone distill the various meanings of the term “public records.”
  2. Just this past week, I had a conversation with a colleague about how someone assumed confidential materials by their nature cannot be public records.
  3. I’ve frequently wondered about the connections between Oliver Wendell Holmes the Supreme Court justice and Oliver W. Holmes the archivist, so now I have a good excuse to research his background.

Oliver W. Holmes was president of the Society of American Archivists (SAA) from 1958-59.  He worked for many years at the National Archives, beginning when it opened in 1935 and filling numerous positions before retiring as Executive Director of the National Historical Publications Commission in 1972.  Holmes was also a founding member of SAA.  A colleague donated to the National Archives the books given to her by Holmes upon his death, and this collection is now available in the Archives Library Information Center.  An obituary was printed in American Archivist in 1982, and I was particularly struck by this line written by Walter Rundell, Jr.:

“Oliver’s career continues to challenge today’s professional archivists not to abandon the scholarly interests that originally led them to archival work” (249).

And the obituary written in the New York Times provided the answer to my underlying question — Holmes the archivist was named for Holmes the jurist but was not related to him.

Holmes delivered his presidential address at the October 1959 SAA annual meeting in Philadelphia.  It was published in the American Archivist in January 1960.  In the beginning, he acknowledged that a discussion of “public records” was only relevant in English-speaking countries, with the rest of the world embracing the term “archives.”  He then laid out four reasons why it was important to define the term “public records”:

  1. Records custodians need to understand which documents are public records because these records are subject to certain requirements, such as how and when they can be destroyed.
  2. Efforts to replevin public records back into public custody are based on an understanding of the term public records.
  3. The “right to know” movement of the time was pushing for greater access to public records.
  4. Public records traditionally have special evidentiary status, so it vital to determine which can be thus certified in courts of law.

Holmes thoroughly investigated the various definitions of public records in the states, going back to the 19th century.  More than four pages later, he concluded that, despite the efforts of the SAA and Albert L. Newsome to establish uniform standards for the states, these statutory definitions bear little imprint from archivists.  He contended that while archivists felt uncomfortable with the imprecise and inconsistent definitions of public records, the legal community had long been content with the precedents found in common law.  So Holmes set about to reveal these common law definitions of public records and came up with two things that public records are not and three distinct things they are:

  1. No court decisions defined public records as those belonging to the public.
  2. Public records are those created by public officials, not those received by them from the outside.  They include papers public officers are required to keep along with “all written memorials made by a public officer within his authority where such writings constitute a convenient, appropriate, or customary method of discharging the duties of office” (13-14).
  3. Public records are those open to inspection and use by the public.
  4. Public records document completed actions, meaning “negative decisions need not be made a matter of record” (15-16).  Holmes referred to this as the “closed transaction” philosophy.
  5. Finding aids and indices are merely pointers to records and are not public records themselves.

Holmes explained that these rather narrow (and not altogether complementary) definitions growing out of common law precedents rested on much narrower meanings of the terms “records” and “public.”  First to look at “records”:

  • In 1755, Dr. Samuel Johnson defined the verb “to record” — “to register anything so that its memory may not be lost” (17).  This definition perhaps explains the archival use of registers but also delineates that received documents are not records.
  • Based on the above definition, documents received only became records if they were written into the record — but when this became too onerous, the compromise was to notate the receipt of the document in the record rather than transcribing the entire document, thereby filing it “as of record.”
  • Documents were “the accumulating papers in an office that supplemented the records” (18).
  • Files were papers placed in order.
  • According to the above definitions, records + files = archives.

And now for “public”:

  • The oldest definition of public implied public in use, not in ownership (e.g., public meeting, public worship).
  • There is another connotation of public that does imply “being owned or supported by the people forming the body politic”  — such as public debt, public roads (20).
  • In some cases, both senses of public are implied, such as with public libraries that are both owned by and accessible to the public.
  • Holmes concluded that the growth of popular sovereignty in the new United States contributed to a new interpretation of public that underscored ownership by the people of government records.

Despite all of this thorough research, in the end Holmes did not offer a definitive definition of the term “public records.”  Instead, he laid the responsibility for parsing this definition at the feet of the records administrators and the archivists, suggesting that the definition must be based on what “public records” ought to be:

“What does the administrator need?  What must the Government as a whole have?  What does the law want?  What does the public expect its ‘public records’ to be?” (26)

Although Holmes acknowledged that the law had a right to define public records in the context of their admissibility in courts, he challenged the archivist to “mark the boundaries” of public records:

“He lives and works with the records systems of the past.  He expects to take over and administer those of the present and the future.  He is in the best position to advise the administrators, in their role as creators of the ‘public records,’ as to what they ought to be” (26).

P.S.  In North Carolina, where I live and work, there can in fact be confidential public records.  The Public Records Act first defines public records — including specifying they are the property of the people and, therefore, open to inspection — and then lists specific exemptions to this public records definition as well as identifying records that are confidential and not open to inspection.  Numerous other N.C. statutes also confer confidentiality to specific public records.

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