B. Availability of Collection Objects
C. Access to Collection Records
1. Federal Freedom of Information Act
D. Requests to Limit or Deny Access
2. A Suggested Approach to Compliance
Legal issues regarding access to museum collections can take various forms. The sufficiency of a museum’s visiting hours may be questioned, disputes may arise concerning access to the objects themselves or to records concerning the objects, or disabled individuals may protest their inability to take part in a museum program or activity.1
The issue of the adequacy of visiting hours usually does not rise to the level of a legal question unless visitors are so restricted that the status of the museum as a public-oriented or “charitable” organization is placed in doubt. The challenge might come in the form of a denial of tax-exempt status or as a charge of mismanagement against trustees for failure to carry out the purposes of the museum.2 The classic illustration is the litigation involving the Barnes Foundation of Pennsylvania.
The Barnes Foundation, a nonprofit corporation, was established in 1922 under terms set down by Albert C. Barnes. The foundation administers an art gallery and arboretum as an “educational experiment” to benefit primarily students of art.
The donor’s instructions noted:
[T]he gallery and the arboretum shall be open five days in each week, except during the months of July and August of each year, and solely and exclusively for educational purposes, to students and instructors of institutions which conduct courses in art and art appreciation, which are approved by the trustees of Donor. On Saturday of each week, except during the months of July and August of every year, the gallery and the arboretum shall be open to the public between the hours of ten o’clock in the morning and four o’clock in the afternoon, under such rules and regulations as the Board of Trustees of Donor may make. It will be incumbent upon the Board of Trustees to make such rules and regulations as will ensure that the plain people, that is men and women who gain their livelihood by daily toil in shops, factories, schools, stores and similar places, shall have free access to the art gallery, and the arboretum upon those days when the gallery and arboretum are to be open to the public, as hereintofore provided. On Sunday of each week during the entire year, the gallery and the arboretum shall be closed to students and public alike.3
The art gallery and the arboretum were denied exemption from state and local taxes on the grounds that they were not “purely public” as required by state law. The admission policy, according to the exemption denial, was so restrictive that neither entity could meet the “purely public” test. The trustees of the foundation contested this interpretation and won. The court stated the following:
It must be borne in mind that the gallery is used not as an art gallery as that term is ordinarily understood, but that it is an integral part of a new educational experiment, and the unrestrictive admission of the public would be as detrimental to the work of the Barnes Foundation as it would be to the work carried on in the laboratories and clinics of the University of Pennsylvania.… Reasonable regulations for admission of the public do not destroy the charitable nature of a gift where it is otherwise found to be so.4
In effect, the court said that the admission policy of a charity should be judged in light of the mission of the organization. In this case, although the Barnes Foundation is an “art gallery,” its major purpose is to serve as a teaching facility, and an admission policy that favors this teaching function does not diminish the public nature of the foundation.
The foundation continued to pursue a very restrictive admissions policy, and a private citizen’s later attempt to question the policy was unsuccessful.5 Then, in 1958, the attorney general of the state initiated legal action, claiming that as the representative of the people of the state, he had the obligation to ascertain why the foundation, as a public charity, had closed the doors of the art gallery to the public. The court affirmed the power of the attorney general to bring such a suit, found a general intent on the part of the donor to give the public at least limited access to the gallery, and ordered the foundation to justify its admission policy.6 The court stated the following:
Naturally, the general public cannot use the gallery at will. The general public cannot even use a public library at will. Orderliness requires that there be hours of opening and closing of libraries, that hours or days be set aside for rest of personnel, for taking inventory, for cleaning and repairing the property and facilities. But no library would be considered public if the public could be admitted only upon the caprice, whim and arbitrary will of its administrators.7
At this point, the foundation and the attorney general entered into an agreement, later approved by the court, that permitted limited but regular public access to the gallery.
A more recent case questioning the hours of a museum is People ex rel. Scott v. Silverstein,8 also known as the Harding Museum case. The Harding Museum, a not-for-profit organization incorporated under the laws of Illinois, was for a number of years an active museum in the city of Chicago. The attorney general of Illinois in 1976 began legal proceedings against the museum’s trustees; he charged, among other things, that since the museum had relocated within the city in the mid-1960s, its collections had been kept mainly in storage, with only a small portion open to the public on a limited basis. This, he argued, amounted to mismanagement on the part of the museum trustees because such a lack of access was in derogation of the intended purpose of the museum. The trustees did not dispute that the general public had not been welcomed since the relocation and that parts of the collection were shown only by appointment. Nor could the trustees point to any unique organizational purpose that warranted restricting access by the general public. The case developed into a long legal battle that centered on the issue of the quality of the governance by the museum’s board—that is, on whether the board was acting negligently in failing to reopen the museum in a timely manner. The issue of access became moot in 1982 when, under an agreement reached by the board with the attorney general, the collections of the museum (and title thereto) were transferred to the Art Institute of Chicago, an organization with generous and regular visiting hours.
Another case dealing with public access is In re Stuart’s Estate.9 Here, a donor had left a collection of books, manuscripts, and paintings to a library with the condition, among others, that the collection be exhibited to the public at all reasonable times but “never on the Lord’s Day.” Years later, the library sought court approval to waive the Sunday restriction, which it deemed impractical and ill suited to public need.10 The library pointed out that most people had the time to visit the collection on Sundays. In this case, the museum itself was seeking to adjust public access so that visiting hours would further the mission of the organization. The court agreed to the waiver, stating that the dominant purpose of the donor was to provide for the public to see his collection and that, in this day and age, access on Sunday served this purpose.
In looking for evidence of current interpretations of “reasonable access,” two sources are useful. In the definition of “museum” as used in the Museum and Library Services Act, objects must be exhibited to the public “on a regular basis.”11 The regulations interpreting this phrase read as follows:
(1) An institution which exhibits objects to the general public for at least 120 days a year shall be deemed to meet this requirement.
(2) An institution which exhibits objects by appointment may meet this requirement if it can establish in light of the facts under all the relevant circumstances that this method of exhibition does not unreasonably restrict the accessibility of the institution’s exhibits to the general public.12
This definition is used to determine eligibility for grants from the Institute of Museum and Library Services, not to determine the tax status of the organization or the trustee liability for adherence to mission. Nevertheless, the definition reflects a consensus within the profession. A code of ethics promulgated by a professional group is the second source, offering similar insight. The Association of Art Museum Directors, in its Professional Practices in Art Museums, defines the “art museum” as an institution that exhibits works of art to the public “on some regular schedule.”13 Current practice, then, as well as case law, supports the position that a museum should have an articulated admission policy that is designed to serve its particular constituency. In setting this policy, the museum should consider its mission, its resources, and the convenience of the public to be served.14
What responsibility does the museum have to provide access to objects that are not on public display? A museum often has difficulty answering this question to the satisfaction of all, since so much depends on the eye of the beholder. Some insist that if a museum is publicly supported, the emphasis should be on access. Others stress the museum’s responsibility to protect and conserve objects for future generations. Another issue concerns who is asking for access. Is it a scholar, and if so, does this type of request take precedence over one from a commercial entity or from a high school student? Is preference given to those who fall within the public immediately served by the museum? Consider, for example, this paragraph from the Code of Ethics for Art Historians.
The … [College Art Association] believes that as much as possible there should be full, free, equal, and nondiscriminatory access to research materials for all qualified art historians. All art historical research materials, including but not limited to works of art, photographs, diaries, letters, and other documents in the possession of publicly supported or tax exempt, nonprofit, educational institutions, whether in the United States or elsewhere, where not legally restricted as to use, shall be freely and fully accessible to art historians for research and publication.15
The Code of Ethics for Museums promulgated by the American Association of Museums states that “[T]he museum ensures that collections in its custody support its mission and public trust responsibilities” (emphasis added).16 There is some conflict in emphasis when both codes are consulted.
For the museum, the problem is how to balance a desire to accommodate requests for special access with the need to protect its collections. As has been clearly demonstrated over the years, unproctored access to storage areas is an invitation to mishandling, misplacement, and even misappropriation of collection objects. Ideally, no person, other than staff members regularly assigned to a storage area, should be allowed unaccompanied within such a restricted area, but few museums have the personnel to accomplish the ideal.17 Instead, the museum must devise reasonable policies and procedures for access to its various types of collections. These policies and procedures are bound to differ depending on the type of collection, the resources of the museum, and the constituency served by the museum. Managing visitor access to an extensive collection of rare stamps and managing a room full of historic farm machinery usually call for different procedures.
When writing such policies and procedures, a museum should consider the following points:
• All those involved in developing a policy should share a common understanding of the mission of the museum and of the public that is served by the museum. (In other words, what group or groups form the prime beneficiaries of the museum?)
• There should be a consensus regarding acceptable risks when balancing access and protection.
• Policies and procedures are only as good as the ability and the commitment of the museum to implement them. A museum is especially vulnerable to criticism and liability when it has suffered a loss because it failed to do what its policies and procedures require.
• Access policies and procedures should be written in coordination with other collection management issues. For example, are the objects well documented, and is it relatively easy for staff to spot—and identify—an object that may be misplaced or stolen? If the answer to both of these questions is “no,” how does the museum expect to follow through if there is an apparent violation of its access policies?
• Access policies and procedures should not be written without coordination with security experts. The museum needs to know what information can and should be elicited from individuals seeking access and what can and should be done immediately if damage or loss due to visitor access is suspected.18
The small museum may assume that it does not need to formulate a policy regarding visitor access to objects not on display. But only one unfortunate incident is needed to demonstrate that this assumption is wrong. A museum is supposed to be acting as the custodian of material that is deemed important, at least to its community. A custodian is expected to be prepared to handle, intelligently, foreseeable events. Requests for access to objects not on display are quite foreseeable in a museum. A policy need not be elaborate; it need only show that the museum has thought about the problem and has set forth commonsense internal guidance, based on its particular circumstances, for how such requests should be handled, what information should be asked of the requestor, what records should be made, and what monitoring is expected of the staff.
In weighing an object access policy, a museum must also consider a corollary policy on access to collection records. Museum professionals would be the first to agree that an object without its documentation has limited value, and the same professionals, as a rule, would vehemently protest if documentation was censored before it was made available to them. A museum must reconcile this attitude with some very practical problems regarding record access.
For purposes of this discussion, collection records are deemed to include two general categories of material.19 The first category covers records that are commonly associated with registration functions. These records primarily document the legal status of an object within the museum, possibly the object’s value, and that object’s movement and care while under the control of the museum. The second category covers records associated with curatorial functions. These records provide a broad body of information that establishes the object’s proper place and importance within its cultural or scientific sphere. Regarding the first category, common access problems concern possible privacy considerations of donors or lenders, commercially motivated requests (such as the dealer who wants to check appraisal data), and the very legitimate fear that important documents will be lost or damaged if registration folders are handled by outsiders. Regarding requests for records in the second category, a museum may be reluctant to provide access for fear that research notes will be pirated or curatorial observations or correspondence will be misused.20
Before attempting to establish a record access policy, a museum should determine whether any laws or regulations affect the release of its collection records. The federal government and all states have freedom of information statutes (hereafter FOI statutes) that require the release, on request, of certain “public records.” In addition, the federal government and most states have open-meeting or “sunshine” laws requiring that certain governmental bodies conduct their proceedings in public. Municipalities may have similar requirements. If a museum is part of a governmental unit, or is closely associated with a governmental unit, or receives a substantial portion of its funding from government, laws of this nature could dramatically affect access to its collection records. On the other side of the coin, the federal government and many states have privacy statutes restricting the release of most information that could be classified as personal to an individual. If a museum’s collection records are covered by both a privacy statute and an open-record (FOI) statute, thorny problems can arise.
The federal government has had a freedom of information act, a privacy act, and a sunshine act for many years, and these statutes have been the subject of many court interpretations. Even though the federal statutes apply only to the activities of federal agencies (as defined in those statutes), these statutes are worth reviewing, for several reasons:
• They provide a good introduction to understanding the general scope and purpose of FOI, privacy, and sunshine laws.
• Some states used or referenced the federal legislation when drafting their own laws. At times, therefore, knowledge of the federal law can help in understanding state laws.
• Because the federal laws have been heavily litigated, those interpreting state laws frequently look to court interpretations of federal statutes for insight.
The purpose of the federal Freedom of Information Act is to change drastically the way the executive branch of the federal government approaches the collection and dissemination of information. The act applies to an “agency” defined as “any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”21 The term “record” is not specifically defined in the original legislation, and what constitutes an “agency record” is frequently a matter of court interpretation. However, the Electronic Freedom of Information Act Amendments of 1996 clearly stated that “record” should be interpreted to include information maintained in an electronic format.22
The federal statute is divided into two major parts. The first part sets forth affirmative steps that agencies must take to inform the public fully about their activities. The second part qualifies full disclosure by listing certain matters that are exempt from mandatory disclosure.
Under part I, federal agencies are required to publish and update general information on the operation of their agencies, with a clear description of how individuals can submit formal requests for specific agency records. Strict time limits are imposed on agencies for responding to record requests, and the burden is on an agency to explain why a request for a record is denied. If an individual is not satisfied with an agency’s reason for denying an information request, that individual can force the agency into court. Thus, part I clearly emphasizes complete and prompt disclosure, with an agency bearing a heavy burden to justify the retention of records under its control.
Under part II of the law, certain types of records are exempt from mandatory disclosure. The exemptions focus on matters relating to such areas as law enforcement, national defense, trade secrets, litigation files, and personnel files—topics that do not, as a rule, cover material normally found in museum collection records.
The federal Privacy Act23 seeks to accomplish four objectives:
• To force agencies to use caution in collecting and using personal information
• To enable individuals to find out the information an agency maintains on them
• To allow individuals to review and correct agency records that pertain to them
• To give individuals some control over how agencies use information about them
The act applies to a federal “agency” as defined in the federal Freedom of Information Act. The federal Privacy Act addresses specifically information records, with “record” defined to mean any item, collection, or grouping of information that an agency maintains about an individual and that is retrievable by the individual’s name, identification number, or other unique feature personal to that individual. The act includes a general prohibition against the disclosure of information in a “record” without the consent of the subject. The act also sets forth procedures whereby individuals can seek access to agency records about them.
The federal Government in the Sunshine Act requires that governing bodies of public agencies hold their board meetings in public.24 The act applies to an “agency” as that term is defined in the federal Freedom of Information Act, provided the agency is headed by a board.
To ensure openness, the act requires that a covered agency publicly announce, at least one week before a board meeting, the time and place of the meeting and the subject matter to be discussed. The meeting must be open to the public unless the agency can show statutory authority to close the meeting. The act lists exceptions when a meeting or a portion of a meeting may be closed to the public. These exceptions are similar to those found in the Freedom of Information Act. When a meeting or portion thereof is closed, a sanitized record of what occurred must be made available to the public.
From these very brief descriptions, we can see that for a museum subject to statutes of this nature, all of its collection records, as well as the minutes of all board meetings, must be made available to any member of the public on demand. At the same time, all such records, before their release, have to be scrutinized for information that might be protected from disclosure to third parties.
State statutes of this nature vary in their coverage. For an organization to determine whether it falls under the purview of a particular state statute, it must look to the language of the statute (and any court interpretations of such language). Coverage is usually stated in a definition of “public agency” or similar term. Listed below are examples of how the term “public agency” is defined in a selection of state FOI statutes. (Privacy and sunshine statutes tend to follow the coverage of the state FOI statute.)
[A]ny state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. (Florida)
[E]very state officer, agency, department, including the executive, legislative and judicial departments, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or local authority. (West Virginia)
A]ny department of the State, any state board, commission, agency, and authority, any public or governmental body or political subdivision of the State, including counties, municipalities, townships, school districts, and special purpose districts, or any organization, corporation, or agency supported in whole or in part by public funds or expending public funds. (South Carolina)
[A]ny state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature. (New York)25
A definition that does not mention funding is usually interpreted more narrowly, with a need to show participation in government activity in order to trigger coverage. When funding is listed as a criterion, the net is wider, but courts have varied in their interpretations of what constitutes funding.26
Experience demonstrates that museums should favor openness regarding their collection records. When viewed objectively, most of what is in these records should be available to the public. Normally, how a museum acquires and disposes of objects is a proper public concern, and provenance records are gathered primarily to further scholarship and public appreciation of collection objects. A policy of secrecy only breeds distrust and may produce an atmosphere in which the public is intolerant of even legitimate reasons for withholding information. A more prudent approach is to treat information in collection records as open to the public unless there is a clearly defensible reason, consonant with any applicable statutes, for denying a specific request.27 With such a policy of openness in force, however, a museum usually needs to delegate, to one or two well-informed staff members, the responsibility for deciding the hard cases.28 Consistency and fairness are essential. Also, a policy of openness does not mean that access must be granted on demand. It assumes that a request will be made with some precision and that the person who has custody of the records will have sufficient time to review the request in order to determine whether all of the material can be released.
Any policy on access to collection records must also consider record security and the ability of the museum financially to accommodate requests. Duplicating records and monitoring record use by outsiders are costly and time-consuming activities. Inordinate demands in these areas invariably reduce the resources available for other museum programs. In recent years, many museums have experienced a dramatic increase in requests from the public for collection record information. Many of these requests come from people engaged in commercial ventures and/or from people who need constant staff assistance. Obviously, decisions have to be made as to what the museum can and should do to promote equitable use of its resources. With the explosion of the information age, these decisions are complicated by the lure of using collection records as a means of generating significant income. Before decisions are made in this area, a museum should go back and review its mission and carefully examine the long-term consequences of looking at collection information through the lens of the entrepreneur.
In more recent years, another consideration concerning access to collections or collection records has come to the fore: requests from cultural groups to withhold access to objects or records, based on religious considerations. Often, such requests are from Native American groups who cite their cultural traditions that protect from public disclosure certain religious and ritual knowledge. Under their traditions, such information can be made available only to designated members of their groups and is to be used only in certain ways. Accordingly, museums may be asked to restrict access to such material or to return all vestiges of such information to the requesting group. Requests of this nature raise very serious problems for museums and archives that are committed to the preservation and dissemination of information. A request that falls under the Native American Graves Protection and Repatriation Act of 199029 would have to be resolved in light of that statute, but if the request pertains to restrictions on access to or destruction of records, there is little guidance. Here, one would hope that there would be broad consultation before a museum takes any irreversible action.30
The year 1990 brought a major advancement in statutory protection from discrimination for disabled individuals. Up until this time, most such protection for the disabled flowed from statutes forbidding government agencies or activities funded by government assistance from discriminating on the basis of a disability. As noted in Chapter II, “Museums Are Accountable to Whom?,” Section F, “As Recipients of Federal Financial Assistance,” since 1973 those museums that accept grant money and certain other forms of aid originating with the federal government have been required to provide the disabled with equal access to programs and activities that benefit from such federal financial assistance.31 The Americans with Disabilities Act of 1990 (ADA) took a giant step forward and greatly expanded coverage to include all state and local government agencies, all commercial facilities, and all places of public accommodation. Museums fall within the definition of a “place of public accommodation.” Hence, as of 1990, all museums in the United States, regardless of their sources of support, are subject to the Americans with Disabilities Act. Because many museums had been the recipients of federal grants since 1973 and were conscious of their disabled audiences, there was already a core of expertise and commitment within the museum community when the ADA went into effect. Still, much had to be done.
The ADA adopts a broad definition of “disability,” one based on the definition set forth in the Rehabilitation Act of 1973. Under the ADA, a person with a disability is one who
1. has a physical or mental impairment that substantially limits that person in some major life activity, or
2. has a record of such an impairment, or
3. is regarded as having such an impairment.
An “impairment” includes such conditions as loss of mobility, visual impairment, speech impairment, hearing impairment, epilepsy, multiple sclerosis, cancer, heart disease, diabetes, emotional illness, mental impairment, HIV disease, drug addiction, and alcoholism, to name just some. And as the definition of “disability” points out, a person who once had such an impairment but is recovered and a person who is perceived to have such an impairment both fall within the coverage of the act. As time went on, there were complaints from the disabled that courts were construing the terms of the act too narrowly. For example, courts tended to focus more on the presence of an actual physical impairment before applying the act even though public perception that one was impaired was just as discriminatory. Courts also tended to narrowly define such terms as “disability,” “major life activities,” “substantially limits,” etc., as used in the ADA. In an effort to encourage a more balanced reading of the act, amendments were passed in 2008 that did not change the definition of the word “disability” but did direct the Equal Employment Opportunity Commission, the federal agency administering the act, to revise its regulations so as to make clear that the ADA is to be interpreted broadly.32 The act also includes two “non-exhaustive” lists of how certain terms should be interpreted. The 2008 ADA Amendments Act went into effect on January 1, 2009.33 The EEOC regulations implementing the statute were published in the Federal Register on March 25, 2011.34
How does the ADA affect the collection-related activities of a museum?35 The act imposes definite rules regarding architectural barriers:
• As of 1993, all newly constructed buildings and facilities must be readily accessible.
• As of 1992, all altered portions of existing buildings and facilities must be readily accessible.
• All barriers to accessibility in existing buildings and facilities must be removed when it is “readily achievable” to do so.
Thus, for museums, all new construction of buildings, parking lots, walkways, and gardens must adhere to accessibility guidelines. All alterations to existing facilities are also covered. An alteration is “a change to a building or facility that affects or could affect its usability … [and] includes remodeling, renovation, rehabilitation, restoration, reconstruction, and changes or rearrangement in structural parts or elements or in the configuration of walls and partitions.”36
Equally important to museums is the removal of communications barriers, those that do not allow a person who may be physically present to participate meaningfully in the program or activity being offered. Into the communication barrier category would fall such situations as the absence of braille or voice for the visually impaired, the absence of amplification, signage, or text-telephone machines for the hearing impaired, and the absence of appropriate programs or scripts for the mentally impaired. Quite simply, the ADA asks a museum to think creatively not only about ways to bring more disabled people into its facilities but also about ways to provide those who come with all reasonable means to participate in programs and activities. The overall emphasis of the act is on inclusiveness.
If a museum plans to offer programs and activities to be enjoyed outside of its own premises—activities such as educational tours, traveling exhibitions, and museum publications—it should review the requirements not only of the ADA but also of any other federal or local accessibility laws that may affect the project. For example, if federal grant money will be sought to produce a major publication or a traveling exhibition, the museum’s accessibility commitment will extend beyond the confines of its own buildings and facilities.
The ADA requires that barriers to accessibility in existing buildings and facilities be removed when it is “readily achievable” to do so. It is important to understand the interpretation of the quoted phrase. “Readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. Since what is difficult or expensive depends on the circumstances, factors such as the following need to be considered:
• The nature and cost of the action that needs to be taken
• The overall financial resources of the organization involved
• The number of people employed at the site in question
• The impact of the needed action on the overall operation of the site
These factors are used to determine whether the action is relatively easy and inexpensive, not whether it is possible. The law does not require burdensome expense.
If the museum determines that the removal of a barrier is not readily achievable, it has an obligation to provide an alternative method of accommodation if an alternative is readily achievable. Examples include directing disabled visitors to an accessible staff entrance to the museum when providing access through the main entrance would be burdensome. Another example would be offering an introductory film on the museum in a small accessible room in addition to showing it in a large but inaccessible auditorium that would be very costly to alter.
Experience has demonstrated that historic buildings and historic sites can raise special problems regarding accessibility requirements. At times the changes mandated by the ADA, or similar legislation, appear to conflict with the statutory goals of historic preservation laws. In 1991, the U.S. Department of Justice published guidance on the subject of resolving differences between accessibility requirements and historic preservation requirements. The guidance is published in Part 36 of Title 28 of the Code of Federal Regulations, beginning at Section 36.405. Essentially, the guidelines state that if removing barriers or accommodating an activity or program would threaten or destroy the historic significance of a building, the action will not be considered “readily achievable.” At that point, alternative methods that are readily achievable need to be considered.
As of 1997, the most current guidance on the ADA is found in 28 C.F.R. Part 36, the regulations issued by the U.S. Department of Justice for implementing the act.37 Technical guidance for achieving accessibility (e.g., slope of ramps, door width) appears in the ADA Accessibility Guidelines for Buildings and Facilities, of the Architectural and Transportation Barriers Compliance Board (also known as the United States Access Board).38 These guidelines appear in the Code of Federal Regulations as Appendix D to the Justice Department’s ADA regulations.39
In the 1970s, when a number of museums first had to focus on accessibility because they were receiving some form of federal financial assistance, there was considerable confusion and apprehension. Demands placed on these organizations seemed overwhelming because of the breadth of the impairments covered and the lack of certainty as to what constituted “accommodation.” There was also the cost factor. Most museums had to find their own money to meet accessibility requirements because, as a rule, funding for compliance was not made a part of most legislative packages. Some museums were almost immobilized by the challenge, but with time, several important lessons were learned.
A first lesson is that someone or some group in the museum needs to become very familiar with the accessibility laws and regulations that apply to the museum. Reading the actual laws and regulations, as well as the history of the regulations, is time consuming, but this is the quickest and most accurate method for gaining a full understanding of the letter and the spirit of the law. A knowledge of what the law really says allows the museum to distinguish between fact and fiction. A second lesson concerns the importance of making contacts with disabled individuals or groups in the vicinity and soliciting their help in identifying barriers, special needs, priorities, and possible solutions. A third lesson learned is the wisdom of surveying what must be done and arriving at a plan that has a list of priorities. As a rule, full accessibility cannot be accomplished quickly, but if a museum has taken the above-described steps and is proceeding in good faith to accomplish tasks according to priority, there should be less anxiety about liability. Although museums are subject to suit for failure to abide by mandated accessibility standards, a record of honest effort goes a long way in encouraging complainants to settle claims in a nonadversarial manner.40
1. When reading this chapter, review also Chapter IV, “The Acquisition of Objects: Accessioning,” Section E.5, “Other Restrictions on Use: Artists’ Rights and Content-Related Rights,” that discusses other aspects of privacy, publicity, and first amendment rights.
2. Access by the public also may bear on eligibility for federal grants. See, for instance, the regulations implementing the Institute of Museum and Library Services, 45 C.F.R. pt. 1180, which are mentioned hereafter.
3. Barnes Foundation v. Keely, 314 Pa. 112, 171 A. 267 (1934).
4. Ibid.
5. Wiegand v. Barnes Foundation, 374 Pa. 149, 97 A.2d 81 (1953).
6. Commonwealth v. Barnes Foundation, 398 Pa. 458, 159 A.2d 500 (1960).
7. Ibid., 506.
8. No. 76 CH 6446 (Ill. Cir. Ct. of Cook County, Oct. 1976) and 408 N.E.2d 243 (Ill. 1980). See also People ex rel. Scott v. George F. Harding Museum, 58 Ill. App. 3d 408, 374 N.E.2d 756 (1978); and People ex rel. Scott v. Silverstein, 412 N.E.2d 692 (Ill. 1980) and 418 N.E.2d 1087 (Ill. 1981).
9. 183 Misc. 20, 46 N.Y.S.2d 911 (1944).
10. See Chapter IV, “The Acquisition of Objects: Accessioning,” Section E.1, “Restricted Gifts.”
11. 20 U.S.C. §§ 9172.
12. Originally published in 48 Fed. Reg. 27729 (June 17, 1983) and now 45 CFR § 1180.3(a)(e)(i) and (ii) (Oct. 1, 2010).
13. Association of Art Museum Directors, Professional Practices in Art Museums (New York: Association of Art Museum Directors, 1991, amended 1992), accessed May 10, 2011, http://www.aamd.org/member/pdfs/ProPractices.pdf.
14. In In re Estate of Hermann, 454 Pa. 292, 312 A.2d 16 (1973), the court discusses the question of whether a museum ceases to exist if, in fact, the public never visits it.
15. Adopted by the College Art Association, Jan. 1995. See Part A under “1. Rights of Access,” accessed May 10, 2011, http://www.collegeart.org/guidelines/histethics.
16. Code adopted in 1994. The same language is used in the 2000 edition of the AAM Code of Ethics for Museums, accessed May 10, 2011, http://www.aam-us.org/museumresources/ethics/coe.cfm.
17. Within a museum, employee theft is not uncommon, and so in framing access policies, a museum needs to consider staff as well as outsiders. See, for instance, C. Lowenthal, “Insider Theft: A Trust Betrayed,” Museum News 32 (May–June 1994); J. Douglas, “Employee Theft in the Museum: What Duty to Pursue? What Duty to Prosecute?,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1993). For other than employee theft, see B. Wolff, “Theft in the Museum: What Duty to Pursue? What Duty to Prosecute?,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1993).
18. With rapid changes in technology, it is important for everyone, including security experts, to keep up to date. Consider the following news report. In 1995, staff at a collecting organization in Baltimore discovered a visitor slicing a map from a rare eighteenth-century book. When police and legal counsel were consulted, staff members were advised to have the individual pay an on-the-spot restitution of a few hundred dollars to repair the page because they believed he would probably evade any criminal prosecution. The staff followed these instructions. After the individual was gone, they discovered damage to numerous other books he had had access to that day, and a search on the Internet showed that a string of major collecting organizations on the East Coast were reporting similar damage after visits by an individual using the same name. F. Shen, “They Didn’t Throw the Book at Him,” Washington Post, Dec. 16, 1995.
19. Many museums also have archival collections—records relating to the history of the organization or to the lives of individuals associated with the work of the organization. Archival records are managed differently from collection records, so they are not covered in this discussion.
20. An associated problem is the case of the curator who wants exclusive access to certain records (and possibly collection objects) because he or she is engaged in active research. Such situations are especially prone to criticism, and a strictly enforced internal method for reviewing all such arrangements affords protection to all concerned.
21. Pub. L. 89–487 codified as 5 U.S.C. § 552 (enacted 1966), as amended.
22. See H.R. 3802, 104th Cong., 2d sess. (1996), for the text of the Electronic Freedom of Information Act Amendments of 1996 (now Pub. L. 104–231). Note also that records produced under a federal grant would not normally be subject to the federal freedom of information statute unless such records were on file in a federal executive branch agency. Possibly, the terms of a particular federal grant could impose conditions concerning the accessibility of records produced by the grantee, but such conditions would not normally flow from the freedom of information statute.
23. Pub. L. 93–579 codified as 5 U.S.C. § 552a (enacted 1974).
24. Pub. L. 94–409 codified as 5 U.S.C. § 552b (enacted 1976).
25. Florida sec. 119.011(2); West Virginia 29B-1-2 (3); South Carolina sec. 30-4-20(a); New York Pub. Off. Law sec. 86(3).
26. For more information, see I. DeAngelis, “The Impact of Freedom of Information Laws on Museum Collections and Collection Records,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1994); J. Douglas, “Access to Selected Museum Records,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1994); and B. Braverman and F. Chetwynd, Information Law: Freedom of Information, Privacy, Open Meeting, Other Access Laws (New York: Practising Law Institute, 1985).
27. Information is generally withheld if its disclosure would constitute an unwarranted invasion of personal privacy, would encourage theft or would expose an individual to physical harm, would release business secrets or propriety information, or would inhibit ongoing negotiations or litigation. However, statutes vary, and a museum should carefully study any statutes applicable to it. Of general interest to museums are two exceptions to the federal Freedom of Information Act. Section 501 of the National Historic Preservation Act Amendments of 1980 (now 16 U.S.C. § 470w-3) reads as follows:
The head of any Federal agency, after consultation with the Secretary shall withhold from disclosure to the public information relating to the location or character of historic resources whenever the head of the agency or the Secretary determines that the disclosure of such information may create a substantial risk of harm, theft, or destruction of such resources or to the area or place where such resources are located.
Section 9 of the Archaeological Resources Protection Act of 1979, Pub. L. 96–95 (now 16 U.S.C. §§ 470aa–470ll), states the following:
(a) Information concerning the nature and location of any archaeological resource for which the excavation or removal requires a permit or other permission under the Act or under any other provision of Federal law may not be made available to the public under subchapter II of chapter 5 of title 5 of the United States Code or under any other provision of law unless the Federal land manager concerned determines that such disclosure would—(1) further the purposes of this Act or the Act of June 27, 1960 (16 U.S.C. §§ 469–469c), and (2) not create a risk of harm to such resources or to the site at which such resources are located. (b) Notwithstanding the provisions of subsection (a), upon the written request of the Governor of any State, which request shall state—(1) the specific site or area for which information is sought, (2) the purpose for which such information is sought, (3) a commitment by the Governor to adequately protect the resource from commercial exploitation, the Federal land manager concerned shall provide to the Governor information concerning the nature and location of archaeological resources within the State of the requesting Governor.
28. An “open records” policy should cause a museum seriously to consider in advance what information is appropriate for its records. All relevant and important documents should be kept meticulously, but if files are used as a catchall for such things as imprudent comments and irrelevant personal information, the museum may one day find itself with little control over what it can withhold from disclosure.
29. See Chapter IV, “The Acquisition of Objects: Accessioning,” Section D.6.i, “What Might the Future Hold?”
30. For insights into these problems, see C. Greene et al., “The Tipi with Battle Pictures: The Kiowa Tradition of Intangible Property Rights,” Trademark Reporter (New York: International Trademark Assoc., 1994); and W. Merrill et al., “The Return of the Ahayu:da: Lessons for Repatriation from Zuni Pueblo and the Smithsonian Institution,” 34 Current Anthropology (No. 5, 1993).
31. The Rehabilitation Act of 1973 (29 U.S.C. § 794) prohibits the federal government and those who receive federal financial assistance from the federal government from discriminating against any “otherwise qualified handicapped individual” regarding participating in or receiving benefits from any program or activity receiving federal financial assistance. Before that statute, the federal Architectural Barriers Act of 1968, as amended (42 U.S.C. § 4151), required that buildings constructed, altered, or leased with federal money be accessible to the handicapped. During these same time periods, states and some municipalities were passing similar accessibility laws, and most tended to be tied to the use of government funds or other types of government support. The term “handicap” was in common usage until the late 1980s. As of 1990, the preferred term is “disability.”
32. V. Perju, “Impairment, Discrimination, and the Legal Construction of Disability in the European Union and the United States,” Boston College Law School Legal Studies Research Paper 203 (May 16, 2011) [anticipated publication in 44 Cornell Int’l L.J. 101 (2011)], accessed May 19, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1687954.
33. Pub. L. 110-325, 122 Stat. 3553 (Sept. 25, 2008), accessed May 16, 2011, http://www.gpo.gov/fdsys/pkg/PLAW-110publ325/pdf/PLAW-110publ325.pdf.
34. 76 Federal Register 16978 (Vol. 76, No. 58, Mar. 25, 2011), accessed May 16, 2011, http://www.gpo.gov/fdsys/pkg/FR-2011-03-25/pdf/2011-6056.pdf. See also U.S. Equal Employment Opportunity Commission, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, accessed May 16, 2011, http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.
35. The ADA also has a section that addresses employment, which is not discussed in this text.
36. “The Impact of the Americans with Disabilities Act on Historic Structures,” Information Series #55 (Washington, D.C.: National Trust for Historic Preservation, 1991). For current information, see 32 Preservation Briefs: Making Historic Properties Accessible, National Park Service, Technical Preservation Services, accessed May 29, 2011, http://www.nps.gov/hps/tps/briefs/brief32.htm.
37. These regulations were first published in the Federal Register on July 26, 1991. The 2011 edition of 28 C.F.R. Part 36 contains a copy of the July 26, 1991, regulations as published in the Federal Register as Appendix D, as well as revisions through 2011.
38. The ADA Accessibility Guidelines for Buildings and Facilities were first published in the Federal Register on July 26, 1991, and in the 2011 edition of the C.F.R., they appear in Part 36 as Appendix D.
39. In addition to the federal regulations and guidelines mentioned in the text, other useful sources of information are J. Majewski, Part of Your General Public Is Disabled: A Handbook for Guides in Museums, Zoos, and Historic Houses (Washington, D.C.: Smithsonian Institution Press, 1987); The Arts and 504 (Washington, D.C.: National Endowment for the Arts, 1992); “The Impact of the Americans with Disabilities Act on Historic Structures,” Information Series #55 (Washington, D.C.: National Trust for Historic Preservation, 1991); J. Teichman, “Selected Materials on the Americans with Disabilities Act,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1991); and J. Douglas, “Requirements for Accessibility in Historic Buildings under the Americans with Disabilities Act,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1992).
40. The ADA permits individuals to sue in their own name, and it permits suits by the attorney general of the United States. The U.S. Department of Justice is the federal agency with primary responsibility for implementing the ADA.