This paper comments on several of the growing number of cases involving recordkeeping violations being reported in the media internationally, often under circumstances involving improper political pressure. These are cases that result from ethical lapses of one kind or another or which pose ethical problems for creators, managers and users of records. A practical, case-example approach is used following that of Ethics, Lies, and Archives (although cases used there are hypothetical). Ethics, Lies, and Archives Editor, Stephen Yorke wrote, “In my experience, broad discussions about ethics in a group context or treating ethics as theory gets nowhere…[C]ase studies…actively engage an audience no matter how reluctant initially.” In pursuance of that aim, cases occurring in the public media are being collected. Media accounts, often the only current sources for case information, can help augment actual case studies now available principally in Archives and the Public Good. The paper also raises questions about the teaching of ethics in graduate archives and records management (ARM) programmes, for this purpose assuming that both branches of the record keeping professions are involved to an equal degree, although in some countries there is a formal distinction between the management of archives and of records.
1. The Union Bank of Switzerland
On 17 January 1997 the New York Times reported that a 28-year old Swiss security guard at the Union Bank of Switzerland (UBS) in Zurich, Christoph Meili, “was startled to find two bins filled with papers ready for shredding: old ledgers, lists of mortgaged buildings in Germany in the 1930's and 40's—the years of Nazi rule.” Bearing in mind news reports about the millions of Holocaust victims who had had their real estate, art works and other ‘Nazi gold’ assets forcibly transferred by the Nazi state, and allegations that many Holocaust victims still had unrepatriated business and personal accounts in banks, including those in Switzerland, he returned to the shredding room and removed whatever documents he could hide inside his jacket. Many more records that were in the full carts he had left behind presumably were shredded. “‘It didn't seem right to have these books in this room. These were historical papers,’ he said. At home, he and his wife agreed to make their knowledge public.
A week later, USB officials announced that staff had mistakenly destroyed Nazi-era records that might shed light on financial transactions and related Nazi-gold issues, despite a government ban a month earlier on the destruction of such records while it conducted an investigation of the extent to which Swiss banks may have colluded with the Nazis to launder Nazi gold. Meili was made the subject of a criminal investigation for violation of bank secrecy laws and dismissed from his job. Later news and other accounts revealed that the documents included German Reichsbank wartime records. Meili fled Switzerland with his family in April 1997, stating that he had received threats from neo-Nazi groups in Switzerland. The investigation was subsequently dropped, as was the investigation of the UBS chief archivist who had authorized the shredding of the litigious archives in violation of the government ban and USB’s own stated policy.
The following year, a settlement was reached between Holocaust survivors and their successors and the Swiss banks. Barbara Hafer, Pennsylvania Treasurer, one of the financial officers involved in the return of Nazi gold assets to Holocaust victims remarked, “The Swiss never would have negotiated a settlement. They never would have agreed to pay $1.25 billion. And the Germans would not be at the negotiating table right now if it were not for the selfless and truly heroic actions of one brave young man…Christoph Meili.”
Christoph Meili became the first Swiss citizen to be granted political asylum in the United States where he lives today. Meili says he doesn’t regret his decision in the shredding room. "First, you are a hero. Then, you are suspected . . .. Then, you are forgotten. But nobody forgets what you did."
This case, like others to follow, illustrates the vital importance of strong, well enforced, whistleblower laws. In the absence of these only the most extraordinary courage of individuals in stepping forward is effective. Strong, well enforced, whistleblower laws act as a deterrent to misdeeds and encourage people to reveal the truth rather than become complicit in ethical improprieties. They should also protect employing or record-creating agencies from charges of impropriety in carrying out their records management procedures. As the inviolateness of records is often at stake, ARM professionals and their associations should be among the strongest advocates of tough whistle-blowing legislation.
2. The Heiner case (‘Shreddergate’)
In 1996, following a keynote presentation to the Records Management Association of Australia (RMAA), I received an email message from Kevin Lindeberg, a former official of the Professional Officers’ Association whose members were public servants of the State government of Queensland, Australia. He asked if historical value was the only criterion used by archivists in the process of determining if and for how long public records should be kept and for making decisions on requests to destroy records. I assured him that historical value was one but by no means the only value that had to be taken into account in appraising records. From the ensuing email exchange I soon learned about the Heiner affair and that Lindeberg was a principal victim in the case.
A retired Queensland stipendiary magistrate, Noel Heiner, was appointed in November 1989 to conduct an investigation into alleged malfeasance at a government-operated youth detention centre. Heiner withdrew from the case in January 1990 and turned the incomplete investigative materials over to the Queensland Department of Family Services and Aboriginal and Islander Affairs. When requests were made by trade union representative Kevin Lindeberg on behalf of the centre’s manager to obtain copies of relevant records regarding the allegations, including the Heiner investigative records, he was informed that the records had been destroyed. It was subsequently revealed that the records had not been destroyed at the time of his request, but later, when the Government allegedly knew they were required in evidence for a foreshadowed judicial proceeding. The Queensland Cabinet requested the state archivist to make a judgment on whether the records relating to the probe had any long-term historical value and, if not, whether they could they be destroyed. They failed to inform her in their letter that the records were known to be required in evidence for a future court proceeding. Some years later it was further alleged that the Queensland Cabinet also knew that the records contained evidence about the abuse of children in State care. Despite this the decision was taken to destroy the records in order to prevent the gathered evidence being used against the Centre staff. The archivist was asked to make a decision within 24 hours and did so, authorizing shredding of the records, which was carried out shortly thereafter by a senior staff archivist together with a government department officer.
Repeated requests by Lindeberg for access to the records resulted in his being sacked. The manager on whose behalf he was seeking the records withdrew his request after being reassigned to a new post and receiving payments for what the government said were unrelated reasons. The propriety of the payments, and whether they might have constituted “hush money” has come into question. Lindeberg continued his efforts to seek justice in various forums and through law enforcement authorities, claiming that the shredding was an illegal act. It is once again the subject of a Parliamentary investigation 13 years after the fact, and is still seen as highly relevant to the practice of public recordkeeping and the administration of justice.
At time of writing the Australian Senate Hansard of 26 November 2003 conveys the current state of Shreddergate:
In some public bodies, senior elected and appointed officials are allowed to take ‘personal records’ away with them when they leave their posts. In others, the papers created by elected officials are considered public records and are subject to the custodianship of the agency concerned. In the U.S.A. the latter approach is usual at national, state and local levels of government. Records of senior officials at all levels of government are often among the most important organizational records.
When New York City Mayor Rudy Giuliani left office, he decided that he would keep a considerable collection of the records of his time in office, including those of the September 11 tragedy. This decision caused a public outcry. Charges were made that Giuliani was attempting to keep the records to write his memoirs for considerable financial gain at the expense of the public. He replied that the City archives organization was not in good enough condition to properly maintain the records. This of course gave rise to the question: why, after all his time in office was the archives organization in such bad condition, and why was it not improved? Eventually the American Civil Liberties Union reached agreement with Giuliani that the records will be returned to the city's Municipal Archives and Department of Records and Information Services.
The crisis might have been avoided had the City had a clear policy on the matter in advance. During the negotiations with the ACLU and Giuliani, the City, under the new Mayor Bloomberg, passed an ordinance clearly establishing that future mayors will be barred from having any say on the disposition of their papers and that they will be retained and controlled by the city Archives.
In the New York case and a similar one in the Commonwealth of Virginia, historians and archivists are concerned that the records have been maintained outside of a trustworthy recordkeeping environment for such a long period that their completeness and integrity when repatriated to proper custody are open to serious question.
If senior elected and appointed officials use as a defence for removing public records that the ARM unit was not of sufficient quality to deserve receiving their papers, they are accepting that they themselves failed in their duty to ensure a trustworthy recordkeeping regime in their own organizations when they were in charge. It is also a dangerous claim for their successors, for any subsequent legal action against such an organization will be able to use such statements as evidence of a recordkeeping system that is not trustworthy and therefore bring into doubt the trustworthiness of any records that the organization may bring to its defence.
The more senior the official is who tries to remove public records, the more difficult it is to take him or her to task. Similarly, it is often the case that senior officials wish to keep significant portions of substantive business records (especially email) from the eyes of administrative staff and treat such records as ‘private’. They can constitute important barriers to full implementation of electronic records policies and systems. The main point is to ensure that appropriate laws, regulations and policies are in place before the system is challenged.
4. ENRON and the Sarbanes-Oxley Act.
The tragic crash of the oil company ENRON revealed the role of the audit company Arthur Andersen, which advised ENRON on its retention schedules. There were allegations that ENRON falsified records and that Arthur Andersen provided dubious retention schedules that would cover up the matter. During U.S. Congressional hearings on the case, Rep. James C. Greenwood scoffed at the idea of Andersen’s ‘overtime’ defense. "It doesn't seem to us it takes a lot of overtime to retain documents," he said.” Barbara Ley Toffler’s The Final Accounting: Ambition, Greed, and the Fall of Arthur Andersen, gives a graphic account.
A number of other similar cases, more recently including the operators of investment funds, followed the case. What all of these cases has brought about has been the financial destruction of small investors, loss of confidence in the free enterprise system and unwillingness on the part of small traders to trade. Because of these reactions, Congress and the Securities Exchange Commission (SEC) have significantly tightened up regulations, principally in the form of the Sarbanes-Oxley Act.
The Sarbanes-Oxley Act applies not just to organizations in the financial sector that are regulated by the SEC. It is important to recognize that even though this is a U.S. law, its implications reach out more globally, to multi-nationals and others doing business in the U.S. A footnote in the Act states, “publicly traded companies with at least $75 million in revenue are subject to section 404 of the Sarbanes-Oxley regulations in June 2004. Other smaller companies and foreign entities are impacted in April 2005.”
In addition, the act tightens auditing/accounting practices and requires publicly held corporations and their audit committees to implement confidential, anonymous whistleblower complaint procedures through which employees can report malfeasance to the SEC. (SEC is also requiring the keeping of email records for at least three years.) The act has also spawned new consulting services and systems development products aimed at helping affected companies to become compliant.
After this, financial organizations should be careful to ensure that ARM professionals are key players in the business of retention scheduling and that they are listened to. Without strong ARM input, scheduling can easily devolve into an exercise of simply protecting the organization by prematurely destroying records in the name of established retention scheduling policy.
5. British American Tobacco
A similar case happened in the British American Tobacco Australian Service (BATAS) case where external legal counsel recommended unreasonably short retention periods for documents that were clearly litigious because they revealed the organization’s prior knowledge of the dangerous health effects of tobacco.
The majority of organizations operate in a reputable and upright manner. They understand that records are not there just to indict an organization, but are also there to come to its defense against mistaken or untrue charges. Records form the main basis for knowledge in the organization. Destroying records prematurely is a recipe for destroying the intellectual capital of the organization.
6. The Texas Legislature Case
Over the course of the summer of 2003, the Republican majority of the Texas State Legislature attempted to change its state voting boundaries. The stakes were very high because state legislatures districting decisions are the basis for defining the voting districts for the U.S. Congress. In the Texas case, if their planned redistricting was achieved, it would result in the loss of five or more Texas-based Democratic seats in the U.S. House of Representatives, which in turn would give the Republican Party a majority in the U.S. House at least until the end of this decade. Much of the pressure to gain access and make inappropriate use of records and services of federal agencies, which otherwise would not have jurisdiction in the matter, came from the staff of the U.S. House Majority Leader, a possible successor to the post of Speaker of the House in a Republican-dominated House later on in the decade. Democratic members halted the decision process by leaving the state at the time of the critical vote, thus depriving the Legislature of the two-thirds quorum required to suspend rules to consider any new legislation. Various federal departments were called on to investigate the whereabouts of the missing legislators. It is possible that these agencies were abusing their powers.
This case underscores the potential for abuses of government records for purely political reasons and the need for sound non-partisan policies to avoid such cases. It also emphasizes the importance of independent accounting offices or other investigative bodies in government that can examine cases such as this and come to conclusions that are not driven by the desire to avoid embarrassment to the government but rather to protecting the rights of citizens and closing gaps to minimize the potential for bringing political pressure to bear on unwitting or low-level officials who are most subject to such pressures.
In May, a group of retired CIA and State Department intelligence analysts circulated a memorandum indicating there was "growing mistrust and cynicism" among intelligence professionals concerning "intelligence cited by you and your chief advisers to justify the war against Iraq." It stated that while in the past intelligence reports had been "warped for political purposes but never before has such warping been used in such a systematic way to mislead our elected representatives into voting to authorize launching a war.” Serving CIA analysts also complained that they felt pressured by administration policymakers before the war concerning their assessment of Iraq's arms programs. In December, the President's Foreign Intelligence Advisory Board inquiry “concluded that the White House made a questionable claim in January's State of the Union address about Saddam Hussein's efforts to obtain nuclear materials because of its desperation to show that Hussein had an active program to develop nuclear weapons, according to a well-placed source familiar with the board's findings…. Although the president's intelligence board keeps its findings secret, the Senate panel plans to make public details of its inquiry in a report, which is being drafted and is expected to be released next spring, according to congressional sources.” The stories were also taken up in Britain and Australia about their own governments (and no doubt elsewhere). The principal lesson for record keepers is that users may not be independent of biased interests. For executives, it is to avoid politicizing information and records by telegraphing wished-for information to support policy decisions.
Four years after the fact, the country is still suffering
from the damaging fallout from the WMD intelligence storm, including
considerable damage to U.S. credibility. In February 2007, the U.S. drew increased attention to
new insurgent weapons called "explosively shaped charges" which are
more dangerous than so-called individual explosive devices (IED) common with
suicide bombers, and the even more dangerous armor-piercing "explosively
formed penetrator" weapon or EFP for destruction of vehicles. The
Bush administration indicated it had intelligence information that links the new
weapons with Iran. It was asked for evidence, some of which the administration
made public some weeks later. Writing in a February 13, 2007 New York Times
article, Helen Cooper and Mark Mazzetti said: "The
response from Congressional and other critics speaks volumes about the current
state of American credibility...To pre-empt accusations that the charges against
The following information results from an informal communication with faculty heads and members of graduate archives and records management programmes. This was not a scientific or complete survey, but it at least offers a taking off point for further discussion among educators in the ARM field. My line of inquiry is summarized in a posting to the Australian “Aus-archivist” discussion list:
“…I raise…a question to ARM educators more broadly: what importance is attached to preparing ARM professionals to deal with the real world ethics and social issues that arise in recordkeeping, and how that is made explicit in course offerings…I wonder in what other ways our concerns about these aspects of recordkeeping are manifested in ARM graduate programs -- the degree to which graduate students are encouraged and actually do take ethics courses as electives, how frequently ethical and social issues relating to ARM are the subject of theses/dissertations, etc.”
No one of my correspondents responded that they offered a separate course on ARM ethics. All indicated they included ethics issues in course work where it seemed appropriate. All of those contacted said they felt the subject was deserving of more time. Asked if they would allow or encourage students to take a traditional course in ethics from the philosophy program as an elective, the consensus was that they would agree in principle but that they did not particularly encourage such an elective. They thought that general ethics courses would not have sufficient direct relevance to the needs of their graduate students. Reasons for not including a separate ethics course included:
§ There was not seen to be sufficient room in existing programs for added subject coverage in ethics because of all the other new demands—especially related to electronic records.
§ Real-life case material specifically oriented to information and records management was not easily accessible to do a separate course on ethics.
§ A belief that more can be achieved by addressing ethics issues integral to the subject discussed in specific archives courses than by addressing case studies.
With the seeming burgeoning of cases and the presence now of case-based texts (Cox/Wallace, Benedict, the LUCAS Proceedings in which this paper appears) and other titles dealing with computer ethics such as Computer & Information Ethics, by Marsha Cook Woodbury, it may be timely now to revisit the adequacy of coverage of ethics and the reasons for not more directly addressing actual ethics-based cases. Demands for coverage of new materials in existing programmes are always difficult to meet. Needs always exceed demands and choices have to be made. For those institutions where a separate ethics course is not seen to be feasible, other alternatives include:
§ Follow the Monash University model in which at least a few if not most required courses have required ethics coverage.
§ Begin or end several courses with periods dedicated to examining a specific case in all its dimensions, rather than limiting it to the dimension most relevant to the current course.
§ Follow the University of Pittsburgh model that has a long-standing Information Ethics course, which is not part of the ARM program but includes a segment that is given by the head of its ARM graduate program.
§ Encourage an information ethics course as an elective for the ARM graduate degree program.
§ Encourage ARM ethics as an important area for student research.
§ Whatever mode is used, include ethics in the course descriptions.
The University of Pittsburgh Information Ethics curriculum defines the term ‘ethics’ as: “The art and science that seeks to bring sensitivity and method to the discernment of moral values.” In the context of ARM, ethics has to do with decision-making when a personal stand or decision is required to identify and resolve conflicting choices of action in the workplace.
How does one know when one is facing an ethical dilemma? An ethical issue arises when there is a decision involving one or more of the following factors:
§ There is a reasonable likelihood of inappropriate personal financial or other gain, or where there are other inappropriate conflicts of interest for the individual or the individual’s superiors or subordinates;
§ A proposed action contradicts established regulations, laws, professional codes or organizational policies;
§ A proposed action would jeopardize one’s professional standing;
§ There is a direction that offends a professional’s personal sense of right.
In most cases, an ethical issue will take the form of a conflict between personal and organizational values. The Australian Society of Archives “Code of Conduct” puts it this way: “Archivists distinguish clearly in their actions and statements between their personal beliefs and attitudes and those of employing institution or professional body.” The problem is not usually recognizing the distinction but in deciding what to do about it.
The “Report on the Society and Archives Survey” of 29 January 2003 elicited views of the participants on 14 professional categories (7 in the ARM professions and 7 in non-ARM professions, the latter constituting the ‘special user’ groups). Question 7 of the Survey asked: What is the potential for different categories of people for making positive changes in society’s perception of archives? Question 8 of the Survey asked what the actuality was for groups realizing their potential.
Table 6: Non-ARM Groups with “Considerable Potential” for Making Contributions
Looking only at the non-ARM professions (special users), Table 6 shows that all 7 Non-ARM categories were ranked 50% or better, and as high as 70% for their perceived strong potential for making positive contributions toward improving public perceptions concerning records and recordkeeping. When all professional groups were considered, national and state archivists were ranked as having the highest potential, closely followed by journalists.
Table 10 of the report summarized the results for Question 8: Non-ARM Groups with “Much More Needed” for making contributions.
The results of the Society and Archives Survey underscore a considerable need to enlist the support of other disciplines that make major use of records in their work. Strategies need to be developed to accomplish this.
The best strategy for addressing ethical risks in the workplace is to avoid such situations in the first place. Examples of situations that do carry some ethical risks are:
There are many roles that professional societies can carry out to support membership in the area of ethics. Most such organizations produce codes of ethics. The Institute of Certified Records Managers and the Dutch Archivists Society have policies on the subject of compliance with their codes. It is difficult, however, to find any organization that has actually tried to enforce such a role. Additional areas for consideration are: Does the association/society:
Is the likelihood of facing ethical dilemmas on the rise? Is the rise in news reports of cases such as described here because things are worse in the U.S., or because there is a stronger and more aggressive free press? What are some of the worrisome signs that can breed more such cases:
A valuable step that could be taken by a professional association is to acknowledge and celebrate the work of those who have undertaken a significant action in support of an ethical principle, especially where this action has resulted in personal disadvantage. Some examples of such people have been quoted in the cases mentioned in this paper.
Some general principles can be suggested:
© 2003 R. E. Barry
 This is a pre-publication, text version of an earlier July 24, 2003 slide presentation that was made at the conference on “Political Pressure and the Archival Record,” at London University Centre for Archives Study, July 22-25, 2003. This paper will be included in the forthcoming conference proceedings to be published by the Society of American Archivists.
 Richard E. Barry is Principal of Barry Associates, conducting international consulting and workshops in information and records management, with focus on electronic records management. He is also Cofounder or the Open Reader Consortium. His recent and other papers, and those of many other authors, can be found at www.mybestdocs.com.
 Yorke, Stephen, et al, Editors, Ethics, Lies and Archives: Proceedings of a one-day seminar by the Canberra Branch of the ASA, 1993 edited by Stephen Yorke and others, 1994. Not on-line, but can be purchased at:. Website URLs referred to in this paper were active as of 26 December 2003.
 Yorke, Stephen, in a letter to R. Barry dated 16 June 1997, in the author’s possession.
 At time of this writing, the publication of a new text on this subject by Karen M. Benedict has been announced but was not available for review: Ethics and the Archival Profession: Introduction and Case Studies. The book is published by and available from the Society of American Archivists, November 2003. Postscript: Since this paper was originally written, a review of the book by Rick Barry has been published in the American Archivist, the professional journal of the SAA.
 “Swiss Bank Guard: A 'Document Hero'”, New York Times, 17 January 1997.
 “For Swiss Bank Whistle-Blower, the Aftermath Is Bittersweet,” by Chelsea J. Carter, Associated Press, Washington Post, 4 March 2001, p. A12.
 “Swiss Bank Says Worker Mistakenly Discarded Archives,” Column: Around the World, Associated Press, 15 January 1997; Washington Post, Page A14.
 Eizenstat, Stuart E., Imperfect Justice: Looted Assets, Slave Labor and Unfinished Business of World War II, by Stuart E. Eizenstat, Illustrated. Public Affairs, New York, 401 pp. See also, Tom Bower, Nazi Gold, HarperPerennial, 1998, 404 pp.
 “Swiss End Bank Guard Investigation,” Associated Press, 2 October 1997; Washington Post, Page A20.
 Hafer, Barbara, “Statement of Pennsylvania Treasurer Barbara Hafer In Honor of Christoph Meili,” Monday March 8, 1999, Kollel Jewish Learning Center, Pittsburgh, Pennsylvania.
 Carter, Chelsea J., “For Swiss Bank Whistle-Blower, the Aftermath Is Bittersweet,” Associated Press, March 4, 2001, Washington Post, p. A12.
 For more in-depth treatment of the Heiner case, see: Chris Hurley, “The shredding of the "Heiner" documents: An appreciation” and “Shredding of the ‘Heiner Affair’ records: An up-dating summary,” Chris Hurley, “Records and the Public Interest: The ‘Heiner Affair’ in Queensland, Australia,” in Archives and the Public Good, Richard Cox and David Wallace, Editors, Quorum Books, Westport, CT, U.S.A., 2002. The book TOC and author’s introduction. See also the University of Queensland Justice Project.
 'Unproofed' Hansard of the Australian Senate: MATTERS OF PUBLIC IMPORTANCE 26 November 2003 The Australian Senate: Child Abuse. Accessible at http://www.aph.gov.au/hansard/senate/dailys/ds261103.pdf, then perform a search on <Lindeberg>. The quote will be found in the third item in the search results (page 68 of the Hansard). Keep in mind that this version of the Hansard is for proof purposes. A later, cleared version may or may not differ and may appear in a slightly different location of the Hansard. The Australian Senate is scheduled to vote on the question of establishing an inquiry into the Heiner case in February 2004.
 See Richard Cox’s paper on this subject in the Guest Author section of www.mybestdocs.com.
 Toffler, Barbara Ley, Final Accounting: Ambition, Greed, and the Fall of Arthur Andersen, Broadway Books, New York, 2003, ISBN 0-7679-1382-5.
 “Texas Legislature Adjourns Special Session,” Washington Post, 27 August 2003, p. A4.
 “Report Details GOP Bids For U.S. Aid in Tex. Fray,” Washington Post, 13 August 2003, p. A25.
 “Tenet Defends Iraq Intelligence CIA Chief Rebuts Allegations of Pressure From Administration Before the War,” Washington Post, 31 May 2003, p. A1.
 “White House Faulted on Uranium Claim, Intelligence Warnings Disregarded, President’s Advisory Board Says,” by Walter Pincus, Washington Post, December 24, 2003, p. A1.
 “Officials knew of dodgy Iraq file,” The Sydney Morning Herald, 11 July 2003.
 Barry, Rick, in a Mar 23 19:16:58 EST 2001 posting to the Aus-archivists list
 Woodbury, Marsha Cook, Computer & Information Ethics, Stipes Publishing, Champaign, IL, U.S.A. The TOC and introduction to the book may be accessed in the Guest Authors section of www.mybestdocs.com
 Source: http://www.sis.pitt.edu/~ethics/
 Some state/provincial archives have an advisory or management board that includes members from the legislative and judicial branches of government. If the archivist is requested to carry out a questionable action, s/he can indicate that such matters have to be brought before the board and do so. Examples are the state/provincial archives in: New South Wales, Australia; Saskatchewan, Canada; and Kentucky, U.S.A.