Volume 8, Number 2, May 1986, pp.1-4

Confidentiality of Records: Perceptions and Reality

WAAC presents installment #6 in the series Sense, Perception, and Nonsense, "Is this a confidential report before me?", with apologies to Beyond the Fringe. The notion of confidential conservation records is familiar to everyone. Some conservators feel that condition and treatment reports, like doctors' records, are confidential. Others feel that to maintain the professional nature of conservation, and to best protect the artwork, the free exchange of information, access to such records should never be denied. The legal realities are surprisingly straightforward. The perceptions of the issue within the profession, however, are not.

The issue of confidentiality may arise in several ways. First, conservators often wish to present details of a conservation treatment in the course of lecturing or in a publication. Second, it is not extraordinary for the subsequent conservator to determine what if any treatment was performed while the piece was owned by a prior owner. In such circumstances a conservator can be torn between full disclosure to the new owner, in the interest of providing the best care for the work of art, and non-disclosure in the interest of fulfilling whatever confidentiality obligation exists with respect to the original client. Third, a curator might ask private conservators if they have seen any interesting paintings by a certain artist for inclusion in a pending show. In the absence of a contractual provision controlling subsequent disclosure of treatment information, a conservator is left to his or her own best judgment as to whether the disclosure of information should occur.

The AIC Code of Ethics does not offer any specific recommendations on the confidentiality of records. It does state in Part Two - Standards of Practice, paragraph III, "Procedure for Initiating, Conducting and Reporting in Scientific Analytical Studies of Historic and Artistic Works" the following:

"A. Initiating the Study
The owner of the object, or his qualified agent or a qualified
officer of an institution, shall send to the examining agency a
written request with statements covering the following points as
required:

                  . . .

6. Whether the laboratory findings
(a) are to be kept in strict confidence or
(b) can be used regardless of their nature, by the investigator
in formal publications and in oral declarations."

This guideline only applies to works submitted for scientific analysis. At best, by analogy, this provision implies that the confidentiality of a record is expected to be explicitly discussed, perhaps resolved by contract, between the conservator and the client.

Strictly speaking, confidentiality refers to what information can, as a matter of law, be withheld from someone else. Confidentiality is typically provided through a "privilege", such as that privilege which applies to communication between doctors and patients, and attorneys and their clients. Confidentiality and the notion of privileged information is not a part of common law, but is a concept that is written into the law as statute. Rules of privilege differ from state to state--and not all states recognize the same concepts of privileged communication.

A privilege is only created where there is perceived to be some public benefit to the creation of that privilege. For example, in the doctor/patient privilege it is rationalized that the privilege is essential to maintain full communication between patients and their physicians and thus to assure that the patient will receive appropriate treatment. Withholding information for fear that the doctor might at some later date testify against you, could endanger your health at the time of treatment. This is also true with respect to the attorney/client privilege--full and fair representation of the client requires complete candor between the parties. It is difficult to believe that the conservator/client relationship is one which the law would find as in need of confidentiality as the relationships to which privileges are typically applied. In the conservator/client relationship there is no overriding concern that requires, as a matter of public health and welfare, that full candor exist between the parties.

Nor is it likely that the conservator/client relationship is one which would be protected by the concept of privacy. In most states, there is a constitutional, and to some extent, a common law right to privacy. This right to privacy, however, extends only to certain "intimate" information. The relationship between a conservator and his or her client is not one which the law would consider to be sufficiently intimate. A stranger cannot call your bank and ask for your checking account balance. That is private information. However, the relationship between a conservator and the client's artwork is not one which is sufficiently intimate to create in the client the reasonable expectation of secrecy on the part of the conservator. Not even the artist's own work is protected by privacy, that is one of the reasons why copyright exists--to establish an artist's right not otherwise protected.

While the right of privacy does not extend to artwork, an argument might be made that the disclosure of certain treatment details might be inconsistent with the copyright protection afforded to a client's work of art. A copyright extends to the right to display and reproduce the copyrighted work. When a conservator shows pictures of a treatment for whatever reason, the image is being displayed--it is an act which arguably could infringe the copyright held by the owner or artist. While an infringement of copyright might technically be occurring in such a circumstance, you might well ask what the damage is to the owner and whether as a practical matter any owner would pursue a copyright remedy.

Since the proper standards for disclosure are not clear, the best and fairest practice to resolve these questions is to include a clause in examination and treatment contracts which explicitly state the nature of, or lack of, any confidential relationship between the conservator and the client. As an example, consider the following clause taken from the Los Angeles County Museum of Art Conservation Center's authorization for technical examination form: "The owner hereby grants permission for the examination and treatment records to be used for educational and scholarly purposes, including publication in professional literature." (It might be good to explicitly add "scientific purposes" as well.) This type of clause makes it clear to both parties that the treatment is not completely confidential in nature. The clause assures that the information will be used in a circumspect and limited manner. If this clause is not satisfactory to the client, it can be crossed out and another could be substituted to which the conservator may or may not agree. It should be noted that this clause does not address many other circumstances in which confidentiality may arise. For example it says nothing about the release of treatment information to subsequent owners of a work of art. Ideally, the AIC Code of Ethics should provide guidelines for the conservation professional on confidentiality. While the Code would not be legally binding, it would establish a professional norm. In drafting confidentiality provisions in treatment contracts, it must be remembered that confidentiality places certain restrictions on both parties to the agreement. The conservator should be aware of all of the implications of a strictly confidential relationship with a client. The contract is with the owner, so if the artwork changes hands, the confidence remains with the original owner. If a new owner brings the painting for your opinion, you are in an awkward position, you may not reveal that you treated the painting. A confidential agreement is not legally attached to the work of art, but to your relationship with the owner. Only if the original owner breaks the confidence, say, by forwarding all or a portion of the conservation reports, is the conservator no longer bound by the agreement.

A private conservator may deny access by a third party to his or her records whether confidential or not. A public institution, however, has almost no right to maintain confidential records. The public's "right to know" generally takes precedence over the institution's wishes for confidentiality. As a practical matter, however, turning over technical and easily misinterpreted treatment information to an uninformed public could be disastrous. To resolve this dilemma, when conservators or administrators open files for examination they must be ready with a creative means of being honest and to fairly present the information while at the same time, protecting that information from misinterpretation. In the case of the Metropolitan's de La Tour controversy, when "60 Minutes" wanted to see all of the examination and analytical files, the museum agreed only on the condition that an independent scientist, agreeable to both parties, be on hand to interpret technical information. The news agency never produced a scientist, so the records were withheld.

The responses from conservators on the issue of confidentiality have been surprisingly varied. Painting conservators as a group seem to assume that their records are quite confidential. Other conservators have not only assumed that there was no need for confidentiality, but felt that confidentiality was ethically undesirable. To some extent, this can be explained by the relatively higher monetary value of paintings. Indeed, sometimes artwork is treated more like a fiscal than a cultural asset and the analogy with bank records seems natural. The range of reaction may also be related to differing views on whether invisible conservation treatments are appropriate within a specific discipline. Additionally, the conservator's not unreasonable fear of the investigative reporter has scared some conservators into the confidentiality camp.

We would be interested in hearing any other opinions on the issues surrounding confidentiality of records. Contact either Chris or Leslie.

With thanks to Carmen Bria, Benita Johnson, Hal Kruth, Pieter Meyers, Jerry Podany, Joyce Hill Stoner, and Tatyana Thompson.

Bibliography:

AIC, "A Code of Ethics for Conservators", Museum News, March/April 1980, pp 28-34.