Trust me, I work for the government: confidentiality and public access to sensitive information.
To ensure that NPS plans and actions reflect contemporary knowledge about the cultural context of sites, structures, certain natural areas, and other ethnographic resources, the National Park Service will conduct appropriate cultural anthropological research in cooperation with park-associated groups. The purposes of this research will be to meet management needs for information about such groups; to develop inventories of traditional ethnographic resources associated with them; to determine the effects of their traditional ceremonial and consumptive uses of park resources; to evaluate the factors guiding their traditional systems for managing natural resources and creating cultural properties, to define their traditional and contemporary relationships to these resources; and to assess the effects of NPS activities on these groups. Research findings will be used to support planning, resource management decisions, and activities; to develop interpretive programs accurately reflecting Native American and other cultures; and to facilitate consultation with and meet management responsibilities to park-associated communities ("National Park Service 1988 Management Policies," U.S. Department of the Interior [Washington DC: 1988]: 5.12).
Thus, federal law and NPS policies require agency managers to ask tribal representatives potentially sensitive questions about land and resources uses, traditional historical and ceremonial knowledge associated with culturally significant lands and resources, site locations, and so forth. To use the resulting information as a tool for making informed management decisions, park managers must rely on documented records of their consultations and anthropological research, whether the records are reports, audio or video tapes, tape transcripts, or meeting notes. In this documentation lies the potential for a Catch-22. Documentation of cultural knowledge may be necessary to protect and appropriately manage culturally sensitive places and resources, yet we may not be able to protect the documentation itself from public disclosure, thereby potentially jeopardizing the resources and the esoteric knowledge about them.
NPS policies state that "The identities of community consultants and information about sacred and other culturally sensitive places and practices will be kept confidential when research agreements or other circumstances warrant. The research use of community consultants or respondents will be subject to their informed consent" (NPS 1988: 5.12). Further, "information regarding the location, nature, and cultural context of archeological, historic, and ethnographic resources may be exempted from public disclosure" (5.13). These policy statements provide a foundation for agency managers to ensure tribal consultants that the information they provide will be kept confidential. And to the greatest extent practicable, that is exactly what the agency does. For many years provisions have been inserted in contracts between the NPS and anthropological researchers to ensure the confidentiality of sensitive ethnographic information in anthropological research reports so that it is not distributed to the public. Depending on the circumstances, contract provisions have included confidentiality measures such as submission of separate appendices containing any sensitive information that would be retained solely by the NPS and the tribe whose information it contains; having the researcher retain certain information that would not be provided to NPS and could not be used for publication purposes without tribal and NPS consent; having tribal research collaborators assisting with report preparation and review of all draft reports; and the use of interviewee consent forms with an array of confidentiality options. Nonetheless, even with these many confidentiality measures in place, with the best of intentions, and with NPS policies to guide the process, what happens when a member of the public formally requests government documents through the Freedom of Information Act? What happens when the information being sought is not a research report but perhaps the notes of a consultation meeting between a park or other NPS office and one or more tribes regarding repatriation of human remains or other sensitive issues?
This situation was recently faced by several parks when a faculty member at a major university formally requested NAGPRA consultation meeting notes from several parks and central offices for a book he was writing on federal agency compliance with NAGPRA and other federal decision-making processes. Seeking the opinion of agency lawyers and the Park Service's FOIA officer, NPS managers began the process of determining which kinds of sensitive ethnographic information could and could not be withheld from public disclosure. It soon became evident that only a small subset of ethnographic information could be withheld from a Freedom of Information Act request. This presented a significant problem, as NPS personnel had fairly routinely told tribal representatives that the information they shared would be held confidential. Having to go back to the tribes and tell them that some of the notes may have to be released to the public due to a FOIA request had a significant impact on the trust between parks and tribes that took years to develop. Although the faculty member ultimately dropped his request, in the current NAGPRA climate FOIA is becoming an increasingly popular tool, particularly among tribes, for accessing information concerning the agency's NAGPRA decisions.
Following the initial FOIA request for NAGPRA-related information a few years ago, and in response to subsequent requests by tribes and other members of the public, individual parks and NPS offices responded in various ways. Initially, for example, some parks made administrative decisions that no notes would be taken during consultations so as not to create any written record. But the NPS and tribes quickly realized that having no record of its decisions and agreements potentially has as many negative consequences as the public release of sensitive information. Other responses included exploring the possibility of having sensitive information housed by the tribes or contracted researchers instead of in federal offices so that the documents would no longer be agency records. Still other parks, depending on the situation, either contract directly with tribes for ethnographic information or ask the tribes to provide only the information they consider safe for potential disclosure to the public.
While discussions of FOIA'S applicability to the kinds of ethnographic and consultative information often documented by NPS are ongoing, it is generally assumed that information cannot be withheld from the public unless it can be shown to meet FOIA'S exemptions from disclosure. Of the nine tests for exemption, the most rigorous for the purposes of protecting ethnographic information is the third, which states that any information that is specifically exempted from public disclosure by other statutes is also exempt from public disclosure under FOIA. Three federal laws can be considered "Exemption 3" laws in this context.
One is the National Historic Preservation Act Section 304, which states in part that federal agency officials, in consultation with the secretary (of the Interior), may withhold from disclosure to the public information about "the location, character, or ownership of a historic resource if the Secretary and the agency determine that disclosure may (1) cause a significant invasion of privacy; (2) risk harm to the historic resource; or (3) impede the use of a traditional religious site to practitioners."
These provisions provide fairly broad protection for information related specifically to places of cultural significance that may be eligible for inclusion on the National Register of Historic Places. Also providing protection for certain kinds of place-specific information is the Archeological Resources Protection Act, which provides exemption for disclosure of information on the locations of archeological resources, many of which might also be places of cultural significance. Finally, section 207 of the National Parks Omnibus Management Act of 1998 states that information concerning the nature and location of a National Park system resource which is endangered, threatened, rare, or commercially valuable, of mineral or paleontological objects or objects of cultural patrimony within units of the National Park system, may be withheld from public disclosure unless disclosure of the information would further the purposes of the unit in which the resource or object is located and would not create unreasonable risk to the resource or object. While the office of the solicitor is currently examining the meaning of the term "object of cultural patrimony" in this context, the provision does constitute another avenue for protection of culturally sensitive information, most specifically about the nature and location of significant places, resources, and objects.
Beyond these specific provisions, in general the parks and National Park Service offices, at least in the southwestern United States, and the tribes with whom they consult consider any information committed to paper or tape that is under "agency control" (as defined by the FOIA) to be accessible to the public. For this reason most parks and the tribal representatives with whom they often consult maintain somewhat of a "don't ask--don't tell" policy. For the purposes of consultation meetings, parks and other NPS offices may document or record meetings, but they ask tribal representatives to be sure to indicate when a statement or discussion should not be documented. For research purposes or for tribal participation in certain management and planning activities, parks or NPS offices may contract directly with tribes so that the tribes can provide only information about which the park needs to know and that would not cause harm if released to the public. For ethnographic research projects in which an NPS employee or contracted anthropologist is interviewing tribal members, interviewee consent forms contain twelve confidentiality stipulations that afford the interviewee as many opportunities for confidentiality as federal law permits, but finally disclaims that "strict confidentiality cannot be guaranteed."
The point is that while the National Park Service has significantly increased its efforts in recent years to consult with tribes and include tribal participation in management activities, the benefits of consultation for better resource management and interpretation are balanced with the risk of disclosing sensitive cultural information (which is often exactly the information needed to protect the resources that are the subjects of consultation). Developing trust between tribes and agency managers means full disclosure about the ability or lack of ability to protect sensitive information. Managers and federal anthropologists in the current "information age" are likely to find themselves conducting consultations and ethnographic research projects, asking tribal representatives to pass along cultural information necessary for decision makers to protect cultural resources without actually revealing anything that would be harmful to the community or the resources if the information was disclosed to the public.
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|Publication:||The American Indian Quarterly|
|Date:||Jan 1, 2001|
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