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Donations of Personal Papers and the Law
by
Posted On May 17, 2022
There is an old Doonesbury comic strip in which the laid-back hippie Zonker Harris is confronting the tax consequences of his first actual job. Zonker proposes to his friends that he will donate his personal papers to the fictional Walden College—“some random comic books, a couple of draft notices”—
and estimates their value at $2 million. “Easily.” The punch line in the strip harkens back to when Richard Nixon was able to estimate a “collectable” value of his prepresidential personal papers and claim a charitable donation for a $500,000 deduction off of his tax bill.

Congress changed the law so that the only deductions allowed are for the actual value of donated papers (literally the cost of the paper, ink, toner, etc.), but that hasn’t ended the legal and other challenges that archives, libraries, and museums face when they accept donations of personal or other papers.

PRIVACY AND PUBLIC INTEREST

Two overlapping areas make up the lion’s share of these challenges. First is privacy, specifically the privacy not only of the donor, but also of other people who might be named in the papers being donated. Operating in an opposing way is public interest, particularly involving those who are prominent public figures with potential controversy represented in their papers.

In modern practice, the donation of a collection of personal papers is generally accompanied by a Deed of Gift. This is a legally enforceable agreement between the donor and the recipient institution. Deeds like this will cover issues such as the timing of the transfer (immediate or at the donor’s death), assignment of copyright, and terms of use of the donated material, including any restrictions on when documents will be made available. The writer Eudora Welty donated many of her papers, including personal correspondence, to the Mississippi Department of Archives and History. The donation was in the news recently, when the department released a large collection of family correspondence due to a clause in the Deed of Gift that restricted access until 20 years after Welty’s death in 2001.

NOTORIOUS

Things can get much more complicated when the person behind the donation is not just a public figure, but a potentially notorious public figure generating a high level of public interest in their papers and records. A long-running lawsuit in Michigan illustrates the challenge that archives and libraries could face in dealing with these situations.

Starting in 1984 and continuing for several years, the Bentley Historical Library at the University of Michigan accepted donations of personal writings, correspondence, and research from John Tanton, a retired Michigan ophthalmologist who was described as “widely regarded as the grandfather of the antiimmigration movements” in the U.S. A 2008 article in the Southern Poverty Law Center’s (SPLC) Intelligence Report identifies Tanton as the founder of the Federation for American Immigration Reform (FAIR), which focuses on antiimmigration positions and theories and is identified by the SPLC as a hate group.

APRIL 2035

In all, Tanton donated 25 boxes of materials, covering 1960–2007, to the Bentley Historical Library. While the first 14 boxes are available to researchers (the Bentley website has finding aids for the materials, but the materials themselves must be accessed at the library in Ann Arbor, Mich.), boxes 15–25 are restricted under the Deed of Gift until April 2035. These boxes include correspondence and materials associated with FAIR and other anti-immigration groups, including one called the Pioneer Fund, identified as a foundation to “promote eugenics and race science.” Tanton died in 2019.

At the beginning of the Trump administration, immigration was quickly identified as a particularly hot-button issue with a growing anti-immigration political sentiment. An immigration researcher and lawyer named Hassan Ahmad was seeking to explore these issues and filed a Michigan state Freedom of Information Act (FOIA) request to open the remaining boxes in the Tanton collection. When the library turned down the request, Ahmad took the matter to court.

Ahmad argued that because the Bentley Historical Library was a state organization as part of the public University of Michigan, the records were public under state transparency laws. The university argued that the records remained Tanton’s private records and were just being stored by the state.

OFFICIAL FUNCTION

Initially, the trial court sided with the university, but on appeal, the Michigan State Supreme Court sided with Ahmad, with the opinion exploring what constitutes a “public record.” The court held that public records are materials “prepared, owned, used, [or] in the possession of, or retained by a public body in the performance of an official function. …” The court determined that because the official function of the library includes collecting, preserving, and making records available—even at a future date—they could be considered public records, subject to requests for disclosure under FOIA laws.

The impact of the court’s decision is somewhat limited. Primarily, it only applies to public universities, libraries, archives, and museums and would not apply to materials donated to private institutions. As a Michigan court decision, it also only applies in Michigan, although courts in other states may see it as a precedent to be followed.

TRUMP ADMINISTRATION

While researching this article, I inevitably encountered material on another current personal papers issue: that of the Trump administration’s records. In the wake of the Watergate scandal, all presidential papers are considered as belonging to the nation and not as personal papers of the president. They are stored by the National Archives. During the Trump administration, reports emerged about torn-up papers and the use of electronic devices that were not secured, resulting in lost documents. Additionally, several boxes of records were taken from the White House to Mar-a-Lago at the end of the Trump presidency. Media reports asserted that the National Archives had to “raid” Mar-a-Lago to get them back, but the National Archives indicates that it is working with administration representatives on their return.

In both cases, the greater the nature of controversy surrounding the papers and/or their donor, the greater the need for archive and library managers to exercise care and caution in accepting the materials and organizing and storing them—and the greater the need for determining careful and legal strategies for facilitating public access to the materials.


George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. He teaches legal research, intellectual property, and privacy courses at the School of Law in both the J.D. and Northwestern’s innovative Master of Science in Law program. Prof. Pike is a frequent lecturer on issues of First Amendment, copyright, and Internet law for library and information professionals. He is also a regular columnist and writer for Information Today, publishing a monthly column on legal issues confronting information producers and consumers. Previously, Prof. Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Prof. Pike received his B.A. degree from the College of Idaho, his law degree from the University of Idaho, and his Masters in Library Science from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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