Exploring an Ethical Dilemma

You discover a bag full of records in the basement of the company you are working for as a corporate archivist. On the face of it, it is clear that the documents contain very sensitive information on slush money paid by your company and bribery by the Chief Executive Officer. Apparently, the bag has been put there to be destroyed or to be put out in the trash. What do you do?

Thought Process and Relevant SAA Ethics Core Values

My initial questions are what are the dates on the documents and what type of company is it; private or publically traded? Having worked in many large companies, my immediate reaction to this scenario is to bring the documents to the legal department because they would know how to proceed with this kind of sensitive information. Below outlines how I would fully question and consider the situation as an Archivist through the lens of the SAA Ethics Core Values.

Given the nature of my role as Archivist within the company, I am likely obligated to keep this information private and depending on the dates, may even be required to destroy the documents based on a destruction schedule. My stakeholders in this case are internal departments; marketing, HR, product development, finance, and legal as well as the employees. Yet, if it is a public company, my stakeholders also include shareholders, the Board of Directors, SEC and, in both scenarios, ultimately the public at large as any company producing a product, physical or otherwise; or providing a service, is in relationship with the general public. 

Setting aside the company’s rules about retention, I have to consider how the information I have found potentially affects the stakeholders. Do I trust the authority of the documents? Is this a one bad player scenario or is it systemic? Is the bribery related to the company or the CEO's personal life? Might what I am reading constitute a criminal act? Can I even judge that? Do I know if other entities are being harmed based on the information in these documents? Is there an “innocent” third or fourth party involved? Do I trust the company culture to act in an ethical manner by turning over these documents to the legal department? Should I also share this information with a person I trust in another department which would maintain some level of privacy, keeping them in the company, while also addressing transparency issues?

The other consideration is whether I preserve the documents to ensure that the information is not destroyed. Within the SAA Core Values, the section on Accountability states: 

Preserving evidentiary records for both public and private entities creates a mechanism to cultivate transparency within organizations and can help make power imbalances visible.

Here, I am determining if I need to make a copy, physical or digital, to ensure preservation of the documents and information contained within if they disappear (again) or are not addressed by the legal department. Often legal departments will take something on and not have to inform an individual (me) about the action taken after the initial transfer of information (handing over the documents). I am sure that they will ask me if I made a copy and inform me of rights/repercussions if I hold on to that copy. 

Furthermore, the Security and Protection section states that “archivists and archival institutions protect all materials for which they are responsible. They guard all records against accidental damage, vandalism, and theft.” Am I safeguarding these documents by rescuing them from the trash? If they are current (meaning legally required to be retained) am I not protecting the documents by turning them over to the legal department? If they were tossed by the creator or other contributors, isn’t that a type of theft? 

In the best case scenario, the legal department is grateful for the information and takes appropriate action for the benefit of all the stakeholders. For example, in a one bad actor scenario, they use the information to facilitate a change in leadership and ensure that this type of behavior does not happen again. In the worst case scenario, it’s a small company, there’s no legal department and leadership as a whole is complicit in the slush money / bribery. 

What’s missing from the SAA Code of Ethics Framework

Upon further reflection, and again, depending on the specific situation, I would seek legal counsel on my own to determine my best course of action. I looked to see if the SAA maintains legal counsel for membership and it appears that they do not. The Code of Ethics is lacking in terms of responding to an ethically challenging situation. There is no “see something, say something” mandate or direction as to next steps to take when confronting this type of situation. Trudy Huskamp Peterson’s article says that “the ultimate goal of such a code is to provide a framework that allows the individual practitioner to devise an ethical course of action in the face of what often prove to be novel situations.”  She goes on to use Koehn’s model that allows for the “autonomy to apply the knowledge and obligation to do so in the best interest of the community at large.” To sum up that language, I’m on my own to determine the best ethical response to unethical and potentially illegal behaviours within the confines of a private repository; or for a corporation, private entity with public obligations.

What would I do in this scenario?

1. Establish the authority of the documents. 

2. Determine how harmful the actions are to the public at large and the urgency of taking action. 

   • Is there potential for loss of life; bribing a health inspector when salmonella is present?

   • Is the money being used to bribe manufacturers for favorable rates? 

   • Is the money being used for personal gain or payoffs? 

3. Seek legal counsel.

4. Make a physical or digital copy of the document to preserve the information.

5. Share the documents.

   • In the case of a publicly traded company, I would share the documents with the legal and/or finance departments to shift the responsibility of addressing the unethical actions to those who would be able to address them directly. 

   • In the case of a private company where I suspect leadership is complicit, I would seek legal counsel and follow their direction. 

   • In the case of the information potentially harming the general public, I would ask the legal department to take immediate action and to inform me of that action along with timing. In the worst case scenario, bribing a health inspector, I believe there is mandatory reporting to the state or local health agency. I also expect my personal legal counsel to contact the appropriate agency to make them aware of the situation. 

In all of the above cases, in keeping with the International Council on Archives Code of Ethics, I would “resist pressure from any source to manipulate evidence so as to conceal or distort facts.” 

Personal considerations

Also lacking in the SAA Framework is how an individual navigates potential personal repercussions when acting ethically. I have watched enough Datelines to know that bringing to light information that may harm an individual or company could be personally detrimental as well. I would have to consider how moving forward may affect my employment, my reputation, and ultimately my personal safety. This is why seeking legal counsel is imperative. 

Going back to the SAA Framework, under the Trust section and specifically conflicts of interest; I would not sell the documents to a news organization or other 3rd Party. I would not seek financial gain from the company for keeping this information confidential and I would not write a book or article for financial gain.