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239
10
Archiving Revolution: Historical
Records Management in the
Massachusetts Courts
Andrew Henderson
Introduction
e Court as Archive Project is unique in its consideration of the records
of Australian superior courts in centring the fundamental value of court
records as more than simply a collection of process, but as a social and
cultural archive. As the editors discuss in the introduction to this volume,
historical court records have assumed an increasing signicance as
aprimary source for researchers across a range of disciplines. Engagement
with the substance of court records has opened opportunities to develop
more diverse and more complete narratives of individuals’ relationships
with one another and with the state.
As an inheritor of English legal tradition, Australian courts share
features with other former colonial possessions, including the practice
and traditions of adversarial, common law courts of record. erefore,
international experience provides a valuable source on which to draw in
the development of retention and maintenance practices.
As part of the process of drawing together those experiences for the Court
as Archive Project, the experience of United States courts—particularly
those of its oldest colonies—has become increasingly relevant.
THE COURT AS ARCHIVE
240
Figure 1: Massachusetts Supreme Judicial Court, Boston,
Massachusetts.
Source: Author’s photograph.
241
10. ARCHIVING REVOLUTION
Massachusetts is one of the oldest colonies in North America, having
been claimed by British adventurers in 1602, armed with letters patent
from Queen Elizabeth I.1 Massachusetts is also the landing site of the
Mayower, carrying the Pilgrims to the new world,2 and the site of the
‘shot heard around the world’3—the confrontation between British
soldiers and colonial militia at Concord in Middlesex County—that
heralded the Warof Independence.
e lengthy history of Massachusetts courts and their establishment as
courts of record means that their records of proceedings contain a wealth
of information about the development and growth of the colony as part of
a nascent United States. Hidden among the records of the Massachusetts
courts are proceedings that include the names of a number of the United
States’ ‘founding fathers’, including John Hancock, Paul Revere, Samuel
Adams and President John Adams; the biographical value of this collection,
it has been argued, is ‘dicult to exaggerate’.4
Although Massachusetts courts are much older than the Federal Court of
Australia, they have confronted similar issues regarding records retention
and the vexed question of what constitutes a ‘signicant’ record that
requires permanent retention. However, through a process of determining
historical context, sampling and inspection, Massachusetts found that
adenition of ‘signicance’ was largely unnecessary.
‘Signicance’: Context and ‘Fat Files’
Two inspections conducted in the 1970s assessed the signicance of
Massachusetts courts records as one of several potential sources of historical
and cultural information. ose inspections found that pre-1859 court
forms contained important biographical information about the parties that,
as a result of changes to the forms, was omitted after 1859. For records after
1859, the historical and cultural value of the record to researchers could be
preserved by retaining only a small, random sample and an oversample of
1 John Stetson Barry, e History of Massachusetts: e Colonial Period (Phillips, Sampson & Co.,
1855) 10. Interestingly, there was also a competing claim to Massachusetts by the Dutch East India
Company under a Charter from William of Orange.
2 Ibid 80–1.
3 Ralph Waldo Emerson, ‘Concord Hymn’ in Edward Waldo Emerson (ed), e Complete Works
ofRalph Waldo Emerson (Houghton Miin, 1904) 159.
4 Robert Brink, ‘Deferred Maintenance of Court Records’ (1980) 73 Law Library Journal 997,
1001.
THE COURT AS ARCHIVE
242
any le larger than two inches in thickness or which had been the subject
of an appeal. As a result of a large-scale sampling and inspection process,
adetermination of the ‘signicance’ of a record did not require the physical
inspection of every le, but a high degree of condence could be taken that
the larger the le, the more ‘signicant’ the record was likely to be.
Despite now being more than 40 years old, the same process of random
sampling and an additional oversampling of large les remains in place
in Massachusetts today.5 e practice is the subject of little complaint or
comment. On occasion, researchers nd that a record important to their
research has been destroyed. However, the court’s experience has been that
the instances are rare and, when the practice is explained to researchers,
it is accepted.6
is chapter provides an overview of the origins of the Superior Court’s
approach, adopted as a result of the Colonial Courts Record Project and,
subsequently, the Superior Courts Record Project. It also draws together
some of the lessons and concepts from both projects as a means of providing
an analysis of how a project of this size came into being, and how it reached
what many might consider an unusual approach to determining the question
of ‘signicance’. In doing so, it suggests that Massachusetts courts’ approach
to the development and implementation of records retention practices may
be valuable in approaching similar superior courts’ collections in Australia.
Massachusetts Court Records: History
in an Unbroken Line
e origins of the justice system in Massachusetts are almost as old as
the colony itself. e Research Guide to the Massachusetts Courts and their
Records goes as far as to argue that the justice system ‘traces its history in an
unbroken line’ to 1630.7 Until 1639, records of judicial proceedings were
5 Supreme Court Judicial Rules (10 February 1995), r 1.11; see also Executive Oce Trial Court,
Guide: Trial Court Record Retention Schedule (n.d.) Mass.gov <https://www.mass.gov/guides/trial-
court-record-retention-schedule>.
6 Interview with Bruce Shaw, Director, Massachusetts Superior Judicial Court, Archives and
Records Preservation (Boston, Massachusetts, 5 July 2017).
7 Catherine Menand, A Research Guide to the Massachusetts Courts and their Records (Supreme
Judicial Court Archives and Records Preservation, 1987) 7.
243
10. ARCHIVING REVOLUTION
‘irregularly kept’.8 However, in arguably one of the very earliest directions
on the maintenance of judicial records in the colonies, the Massachusetts
General Court directed that all evidence was to be kept ‘to posterity’.9
All courts, including a superior court to exercise the same powers of the
Courts of Common Pleas in England, were subsequently re-established
as‘courts of record’ in 1691 when William III appointed a governor to
the colony.10
e signicance of ‘courts of record’ is discussed elsewhere in this
volume.11 However, the designation of Massachusetts courts as courts of
record brings with it two important signiers—one aecting the status of
the court and the other aecting the status of its record.
First, and according to English practice at the time, Massachusetts
courts transformed from being informal or ad hoc tribunals to adopting
apermanent existence and developing a transparent and consistent body
oflaw.12 Second, and more importantly, in the context of courts as archives,
the establishment of a perpetual record meant that the record’s contents
became immutable and incontrovertible. As early as the 13thcentury, the
oral history of proceedings in the King’s courts in England were considered
to be authoritative and above question. With the advent of a written
record, the same character was attached to those records. e court record
was not required to be further proved or supported by reference to oral
evidence.13
Despite the political upheaval of the War of Independence, and the
successive realignments of colonial boundaries to both amalgamate14 and
then separate the colonies and, subsequently, states,15 Massachusetts courts
8 Emory Washburn, Sketches of the Judicial History of Massachusetts (Charles C Little and James
Brown, 1840) 89.
9 Ibid.
10 Ibid. Interestingly, the Governor was styled as a ‘president’ with a deputy president and elected
assistants to provide advice, similar to an executive council.
11 See Chapter 1, this volume.
12 Enid Campbell, ‘Inferior and Superior Courts of Record’ (1997) 6 Journal of Judicial
Administration 249.
13 SE orne, ‘Courts of Record and Sir Edward Coke’ (1937) 2(1) e University of Toronto Law
Journal 24; Gaillard Lapsley, ‘e Court, Record and Roll of the County in the irteenth Century’
(1935) 51 Law Quarterly Review 299.
14 Alan Taylor, American Colonies (Viking, 1st ed, 2001) 277.
15 For a detailed account of the waxing and waning of Massachusetts’ boundaries with the
surrounding states, see Franklin Van Zandt, Boundaries of the United States and the Several States
(United States Department of the Interior, 1966) 95.
THE COURT AS ARCHIVE
244
have remained in a similar tiered structure.16 e current Massachusetts
General Law establishes a Supreme Judicial Court, an Appeals Court,
aTrial Court (consisting of a series of specialist jurisdictions), a Superior
Court and District Courts.17 e establishment of each tier under the
General Law places the administration of the court largely under
thesupervision of the court itself.
Record Retention in Massachusetts
By the mid-1970s, there were approximately 2.7 million court les stored
in locations all over Massachusetts. No preservation or conservation work
had been done on the materials, and there was no designated central
repository. Clearly, the Massachusetts courts’ extensive history contributed
to the volume of the materials. At the same time, that history also meant
that the records constituted an invaluable archive of economic, social and
political disputes stretching back more than 200 years.
As a result of a substantial records inventory, assessment and sampling
exercise, supervised by a board comprised of judges, historians and other
scholars, the Massachusetts Superior Judicial Court18 adopted a unique
approach to the management of its records. Rather than developing
adenition of ‘signicance’ as a means of determining which les should
be retained, the project found that the thickness of the le and whether it
had been taken on appeal were the only consistent indicators of historical
signicance. Only those les that were greater than two inches in thickness,
or were appealed, were recommended for permanent retention.
16 Menand, above n 7, 21.
17 Massachusetts General Law (MGL) ch 211, 211A, 211B, 212 and 218.
18 Michael Hindus, eodore Hammett and Barbara Hobson, e Files of the Massachusetts Superior
Court, 1859–1959: An Analysis and a Plan for Action (GK Hall and Company, 1979) (the ‘Hindus
Report’).
245
10. ARCHIVING REVOLUTION
Origins of Massachusetts’ Records
Management
e origins of eorts to adopt a structured approach to the management of
court records in the United States can arguably be found at the intersection
of two signicant events during the 1970s: Chief Justice Burger’s ‘deferred
maintenance’ address and the consequent creation of the National Center
for State Courts; and the bicentenary of the United States.
Deferred Maintenance
In 1971, President Richard Nixon and Chief Justice Burger of the
United States Supreme Court spoke at the rst National Conference
of the Judiciary. e American Bar Association Journal acknowledged
thattheoccasion was a rare one to have brought the head of the executive
and the judiciary to the same conference platform.19 Both the President
and the Chief Justice addressed delays in the justice system and the
need for reform to improve public condence.20 However, while the
President’s remarks were addressed to procedural reform, the Chief Justice
adopted a dierent approach. Acknowledging that delays in litigation
were something on which even Roscoe Pound had expressed concern,21
he also drew attention to the ageing administrative practices of courts,
particularly in the context of their records administration. Commenting
specically on the increasing complexity of litigation, Chief Justice Burger
noted that:
In terms of methods, machinery and equipment, the ow of papers …
most courts have changed very little fundamentally in a hundred years or
more. I know of no comprehensive surveys, but spot checks have shown
that the ancient ledger type of record books, sixteen or eighteen inches
wide, twenty-four or twenty-six inches high, and four inches thick are still
used in a very large number of courts. ese cumbersome books, hazardous
to handle, still call for longhand entries concerning cases. Imention this
only as one symptom of our tendency to cling to old ways.22
19 ‘Williamsburg Cradles Another Revolution—is One in the Administration of Justice’, (1971)
57 American Bar Association Journal 421.
20 Richard Nixon, ‘Reforming the Administration of Justice’ (1971) 57 American Bar Association
Journal 421; Warren Burger, ‘Deferred Maintenance’ (1971) 57 American Bar Association Journal 425.
21 Burger, above n 20.
22 Ibid 427.
THE COURT AS ARCHIVE
246
As a means of addressing the diverse methods of administration
consistently, Burger proposed the development of a National Center
for State Courts as a ‘national clearinghouse or center to serve all the
states and to co-operate with all the agencies seeking to improve justice
at everylevel’.23
e National Center for State Courts (NCSC) that Burger had proposed
commenced operation less than 12 months later.24 Among its earliest
projects was a survey of records management practices in state courts
nationally.25 e survey found that a large number of courts held records
more than 100 years old, but that ‘many states [had] allowed these records
to be relegated to attics, basements, and closets with little selectivity
and virtually no management’.26 Importantly, the NCSC survey was
subsequently submitted as a successful proposal for seed funding to
undertake records management activities in courts to the National
Historical Publications and Records Commission—the signicance of
which is discussed further below.27
Bicentennial Fever
e push for a better approach to the management of courts’ historical
records, in particular, was assisted by a signicant historical milestone. e
bicentenary of the United States in 1976 brought with it an enthusiasm
for historical information, just as the Canadian centenary had done
nine years earlier.28 Planning began some 10 years before and, based on
recommendations of the American Revolution Bicentennial Commission,
the United States Congress established a national coordinating body—the
American Revolution Bicentennial Administration29—and a number of
institutions were gripped by ‘bicentennial fever’.30
23 Ibid.
24 Warren Burger, ‘e State of the Federal Judicary—1971’ (1971) 57 American Bar Association
Journal 855, 856.
25 National Center for State Courts, Court Records Retention Survey and Guidelines Project Proposal
627, cited in Brink, above n 4, 998.
26 Ibid 998; see also Robert C. Harrall, ‘Court Records Management: “e Mitten” Revisted’
(1976) 2(1) Justice System Journal 77.
27 Brink, above n 4.
28 Gabrielle Blais and David Enns, ‘From Paper to People Archives: Public Programming in the
Management of Archives’ 31 Archivaria 101, 102.
29 Act of 12 November 1973, Pub Law No 73−179, 87 Stat 697 (1973).
30 Richard Baker, ‘Reections on the Modern History of Congressional History’ in Glenn Gray,
Rebecca Johnson Melvin and Karen Paul (eds), An American Political Archives Reader (Scarecrow
Press, 2009) 6.
247
10. ARCHIVING REVOLUTION
To mark the bicentenary, the American Association of Law Libraries
(AALL) held its national conference in Boston with a focus on the legal
history of the American Revolution and the management of historical
records.31 A number of speakers at that conference drew attention to the
absence of a collected history of colonial administration as well as the value
of the historical records that many institutions and private collections
held.32 However, they also emphasised the diculty of building a complete
picture of America’s legal history, referring to the sources being contained
in an ‘immense and scattered mass’33 and being ‘diuse’.34 David Flaherty,
who had published work on a history of Massachusetts as told through
court records, noted that there was a signicant inconsistency in the way
in which court clerks had marked or catalogued court records across time,
making it dicult for the historian to determine not only the content
of the record but whether a particular record even existed.35 He also
noted that he had, in eect, had to travel to every colonial county seat to
determine what records were available.36
In addition to the diculty of locating material, concerns were also
expressed about the manner in which valuable records were being kept.
Records were being stored in basements and decommissioned cells in
environments that did not suit long-term preservation. Speakers at the
AALL conference also emphasised the need for a ‘carefully planned and
rigidly supervised program of housekeeping’37 to ensure that materials did
not continue to be lost as a result of age.
31 Amercian Association of Law Libraries, ‘Association News’ (1975) 7(1) Newsletter 1, 2.
32 Kinvin Wroth, ‘Documents of the Colonial Conict: Part I—Sources for the Legal History of
the American Revolution’ (1976) 69 Law Librarians Journal 277; Gerard Warden, ‘Commentary
on Sources for the Legal History of the American Revolution: Part II—Documents of the Colonial
Conict’ (1976) 69 Law Library Journal 292.
33 Wroth, above n 32.
34 Morton Horwitz, ‘Documents of Constititional Development’ (1976) 69 Law Library Journal
295, 296.
35 David Flaherty, ‘e Use of Early American Court Records in Historical Research’ (1976) 69
Law Library Journal 342.
36 Ibid 344; see also Michael Hindus, ‘Designing Projects for Maximum Impact: Saving the Early
Court Records in Massachusetts’ (1979) 42(3) e American Archivist 307.
37 George Cunha, ‘Preservation and Conservation of Legal Materials’ (1976) 69 Law Library
Journal 300.
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248
Figure 2: An example of court records held by Massachusetts courts—
Writ of Summons dated 1775.
Source: Author’s photograph.
A New Wave of Users
While the concerns of scholars and court sta about the scattered and
imperilled historical records of Massachusetts courts are cited as the
principal origin of the development of Massachusetts court record
practices,38 part of those concerns also related to the interests of a new
and growing body of users. A lack of administrative structure is clearly
a cause for concern, but it was not the objective in itself. Many of the
concerns expressed by scholars related to their inability to nd materials
to support their research. Among court sta, it related to the inability to
help researchers by nding the material for which they were searching.
e concerns of the materials’ users rather than their keepers also reected
a new movement in archival and library management occurring at the
same time, prompted, at least in part, by a renewed interest in history.
ebicentenary introduced a new ‘wave’ of users to archives—genealogists
38 e Hindus Report, above n 18; Brink, above n 4.
249
10. ARCHIVING REVOLUTION
spurred on not only by the bicentenary, but also by the broadcast of
historical miniseries like Roots a year later39—and coincided with more
popular awareness in North America of the availability of historical
information.40 Attempts were made to provide a more ‘user-friendly’
approach to archival records and to move away from the understandingof
archives as the domain of the expert archivist, as had been the subject
ofdebate among North American archivists during the 1970s and 1980s.41
However, the impetus given to the public’s interest in historical material
by the bicentenary prompted a renewal of the debate.42
The National Historical Publications and
Records Commission
Important for the development of a number of projects during the
bicentenary was also the expansion in 1974 of the National Historical
Publications Commission (NHPRC), which had been established in 1934,
to now include records.43 e expansion allowed the National Archives and
Records Authority (the equivalent of the National Archives of Australia)
to make funds available to state and private archival collections for their
preservation—some of which was made available to Massachusetts courts.
Sampling and ‘Signicance’
e current records management practice was not the rst attempt to
introduce a method of structured record-keeping to the court’s historical
records. In 1976, the Colonial Courts Records Project commenced under
the supervision of a judicial committee appointed by then Chief Justice
Edward Hennessy to undertake a survey and inventory of the courts’
records to be conducted by lawyer and legal historian Michael Hindus.
39 Heather MacNeil and Terry Eastwood, Currents of Archival inking (ABC-CLIO, 2nd ed, 2017)
229.
40 Ibid.
41 See, for example, Mary Pugh, ‘e Illusion of Omniscience: Subject Access and the Reference
Archivist’ (1982) 45(1) American Archivist 33; Bruce Dearstyne, ‘What Is the Use of Archives?
AChallenge for the Profession’ (1987) 50(1) American Archivist 76; Francis X Blouin Jr and William
Wallach, A Decade of Sponsored Research: e Research Fellowship Program for Study of Modern Archives
(University of Michigan, 1994) 17.
42 Edward Weldon, ‘Lest We Forget: Setting Priorities for the Preservation and Use of Historical
Records’ (1977) 40(3) e American Archivist 295, 295; Howard Applegate, Richard Brown and Elsie
Freigovel, ‘Wider Use of Historical Records’ (1977) 40(3) e American Archivist 331.
43 44 USC § 25 (1974).
THE COURT AS ARCHIVE
250
e principal objective of the Colonial Courts Record Project was to
locate, identify and microlm the hundreds of thousands of scattered
records for Suolk County, within which Boston lies.44 e project
was supported by a grant from the NHPRC and eventually produced
asurvey of the records published in 1977: e Records of the Massachusetts
Superior Court and its Predecessors: An Inventory and Guide.45 Chief Justice
Hennessy considered the project to be his most signicant contribution
as Chief Justice.46
e judicial committee responsible for the Colonial Courts Record
Project recommended permanent retention of all pre-1859 les for two
key reasons. e survey had identied some 40,000 cubic feet of records
stored in various locations across the state. However, only 5,000 cubic feet
contained pre-1859 materials.47 e survey suggested that the change in
volume was due to changes in the administrative practice of courts and
the legal profession. e advent of printed forms, rather than bespoke
process, meant that the rate at which material could be produced had
increased.48 It also suggested that the increase in volume, particularly in
the early 20th century, appeared to relate to motor vehicle torts—a cause
of action previously unknown.49 Storage requirements for pre-1859 les
were, therefore, signicantly less onerous.
Second, from about 1859 onwards, the practice of Massachusetts courts
changed so that court records contained substantially less sociological and
biographical data. Pre-1859 materials commonly contained addresses,
gender, occupational and other data that made them a valuable and
unique source. Post-1859, that data was omitted but was also available
from a range of other sources.50
e Colonial Courts Record Project and the survey provide some important
direction and advice about the scoping of any form of management
strategy. First, the records need to be seen in a much broader context
44 Interview with Bruce Shaw, Director, Massachusetts Superior Judicial Court, Archives and
Records Preservation (Boston, Massachusetts, 5 July 2017).
45 Michael Hindus, Superior Court of Massachusetts and Judicial Records Committee of
Massachusetts, e Records of the Massachusetts Superior Court and its Precedessors: An Inventory and
Guide (Archives Division Oce of the Secretary of the Commonwealth, 1978).
46 Interview with Bruce Shaw, Director, Massachusetts Superior Judicial Court, Archives and
Records Preservation (Boston, Massachusetts, 5 July 2017).
47 Hindus, above n 45.
48 Hindus Report, above n 18.
49 Ibid.
50 Ibid 7.
251
10. ARCHIVING REVOLUTION
than simply a collection of process; it is a social archive. Approaching the
initial assessment of the records process from the perspective of the value
of the records from dierent perspectives rather than an inward-looking
assessment of importance to the court or legal history is fundamentally
important.
Supporting this assessment is a sound understanding of the content
of the records not in isolation but in connection with other archives.
e1977 survey identied the content of pre-c1859 records as unique
in telling a much wider story about the colony and state as a whole.
From the perspective of the Australian Federal Court, it is arguable that
the management of native title court records, their uniqueness having
been explored in other chapters in this volume, and acknowledged in the
Federal Court’s existing Disposal Authority, fall within the same category.
A Proposal for Sampling
While the judicial committee responsible for the 1977 survey had
recommended a clear approach to pre-1859 records, it made no
recommendations about the much larger collection of post-1859
materials. However, rather than leaving the matter, the committee chose
to undertake a further project to determine what to do with the more
recent records.
e Superior Courts Records Project began in 1977, still under the
supervision of the judicial committee but now to be conducted by alarger
team including Michael Hindus, lawyer and historian eodore Hammett
and historian and sociologist Barbara Hobson. e project’s objective
was to attempt to nd a way to rationalise the large body of post-1859
les in a cost-eective manner that would not devalue the collection for
researchers. Very early on, the committee agreed to a process of ‘selective
retention’,51 but which les to retain and which to keep was asensitive
question.52
What is important about this observation of ‘sensitivity’ is that one of the
underlying concerns of the committee and the court was the level of risk
that both were prepared to accept: by destroying a certain proportion of
51 e Hindus Report notes that ‘this is, of course, a euphemism. We use this term to refer to the
destruction of les’: ibid 5.
52 Ibid.
THE COURT AS ARCHIVE
252
les, historically signicant material would be lost. at is, the committee
and the court had made the initial, fundamental decision that everything
could not be kept and that material would clearly have to be destroyed.
erefore, the project’s objective was to nd a point of compromise. How
much historical material were the committee and the court prepared to
lose in the interests of managing such a massive collection before the risk
and rate of loss became unacceptable?
Hindus and his co-authors proposed a method of selective retention
based on a sampling methodology: a random sample was proposed to be
taken from the collected body of les with the balance to be destroyed.
Underpinning this approach was the concept that by selecting an
appropriate sample, conclusions could be drawn about the population as
a whole.53
A random sample was selected from two counties—Suolk and
Hampshire—based on a randomly generated set of le numbers. e
choice of counties was deliberate: Suolk being predominately urban
(itincludes Boston and other major urban centres) and Hampshire being
predominately rural.54 e sample was split again across civil and criminal
matters as being substantively dierent classes of matters with dierent
characteristics.55
A randomly generated set of numbers was chosen instead of a set number
series from each period or a sample from specic jurisdictions to avoid
distorting the sample. For example, Hindus notes that if a predetermined
number range were used, it would skew the sample towards a particular
period.56 File numbers tend to be assigned in all courts in numerical order
so to set a range would, consequently, predetermine a period in time.
e sampling methodology also took into account the volume of matters
and historical interest. Once the number of post-1859 matters was
identied, a total sample size was selected that would provide astatistically
signicant result. However, a sliding scale of the proportion of matters
within years was also identied. Hindus notes that this was done for
two reasons: older matters were considered by the committee to be of
greater value and, because the total number of matters commenced in the
53 Ibid 42.
54 Ibid 45.
55 Ibid.
56 Ibid 13, 42.
253
10. ARCHIVING REVOLUTION
Massachusetts Superior Court increased over time, a smaller proportion
could be taken while producing a similar number of physical les as for
earlier years.57
is approach, as an alternative to the physical of every le, has some
clear advantages. It is clearly more time- and cost-eective. However,
Hindus acknowledges that it may not be appropriate for all matters or
all jurisdictions. For example, Hindus notes that while undertaking the
project, the committee was also approached for advice on sampling with
respect to probation les. Ultimately, sampling was not recommended
based on the absence of important identifying information, which would
allow a sample to be taken as representative of a set, the unique nature
ofthe records and their sensitivity.58
erefore, the application of a sampling methodology as a starting point
for determining an approach to selective retention is not entirely random.
As Hindus explains, the nature and size of the collection need to be
considered and understood at the very start. Factors such as geographical,
temporal and jurisdictional spread need to be taken into account in
determining the overall size of the sample, and this cannot be done
without adequate identifying data. Within that spread, factors such as the
increase in total lings or lings of a particular type need to be identied
and taken into account in setting the parameters of the sample.
However, once those parameters are determined, then the method of
selecting the sample needs to be as random and objective as possible.
For example, Hindus and his team used a random number generator to
determine le numbers within the predetermined objectives. e advantage
here is to avoid skewing the nature of the sample. In such a sensitive context
as the preservation of records in which members of the committee may
have an interest, it also avoids skewing in favour ofindividual members’
interests that, ultimately, might not be representative of, or shared by,
researchers 10, 20 or 50 years later.
57 Ibid 13.
58 Ibid 14.
THE COURT AS ARCHIVE
254
Testing the Sample: Historical Signicance Within
the Sample
As acknowledged earlier in this chapter, the process of selective retention
requires an assessment of, and compromise on, the risk of the ‘wrong’
records being destroyed. As a means of testing the sampling process and
providing a sense of what Hindus refers to as ‘comfort’ to the committee
responsible for supervising the project, the project took the additional step
of developing a methodology to determine how many records contained
information of real historical interest.
Eighty-two dierent variables were established as a means of identifying
the characteristics and historical signicance of each le. e codes,
signifying important legal, social, historical and cultural factors, were
determined by a committee composed of nine scholars prominent in
the elds of legal history, social history, criminology, law, demography,
minority history and statistics.
For example, in relation to civil les, codes were assigned to the basic
information of jurisdiction, the identity of the plaintis and the
defendants (grouped by social or economic interest) and the cause of
action. Additional codes were assigned to reect the procedures on the
le (eg, claim, counterclaim and appeal) and, very simply, its size. A third
set of codes was then applied to identify historical elements of interest
(eg,ifthe matter dealt with issues of ethnicity, race, labour or family).59
e process also allowed for an overall rating of historical interest based
on a simple low-to-high scale. e variables upon which this ranking
could be based were not listed to remain exible, but might include
variables such as social context, detailed descriptions of social practices or
the political context within which a matter was occurring.
Hindus and his co-authors acknowledge that, while the process of
settling on a list of codes and assigning them to les was as robust as it
could be made, it cannot be argued that a dierent group of scholars,
or even dierent scholars, may have agreed on the same variables.60 is
is aweakness in the process. However, the broadly representative nature
of the committee, looking outside just the judges and court sta, and,
59 Ibid Appendix B.19.
60 Ibid 59.
255
10. ARCHIVING REVOLUTION
thereby, reecting a much broader range of perspectives, arguably makes
the list of codes more defensible. e importance of the contents ofthe
le was not being determined from a purely legal or administrative
perspective, but, at the same time, those elements were not ignored.
While the initial sample identied was up to 6,000 les, time constraints
and the amount of material on some les meant that, ultimately, a sample
of 3,500 les was inspected—1,422 criminal les and 1,968 civil les—
and the variables present in the les identied.
Once the les were coded for characteristics and signicance, the project
was then able to produce data on the extent to which the sample, and,
therefore, the complete collection of les, held material of historical value.
Surprisingly, the sampling process revealed two key ndings:
• Only 6.8 per cent of sampled civil les and 8.1 per cent of criminal
les were of historical interest, and the majority (4.6 per cent and
6.6per cent, respectively) were ranked of ‘low’ historical interest.61
• Out of the 82 dierent variables, the study found that the size of the
le (literally thickness), whether the matter had been taken on appeal
to a superior court and (in the case of civil matters) whether the matter
was one in equity were the only consistent indicators of historical
interest.62
Implementing Hindus: Summary and Lessons
As discussed earlier, the results of the Superior Courts Record Project
and the recommendations of the Hindus Report were consequently
adoptedas records retention policy in Massachusetts and continue to be
applied today.
However, the Hindus Report was also written with the intention
of providing a set of principles or practices for courts to follow in
emulating the records management practices of the Superior Court of
Massachusetts.63 While the methodology is summarised in this chapter,
there are some broader lessons and concepts that also need to be taken
into account.
61 Ibid 62, 66.
62 Ibid 62, 64, 71.
63 Michael Hindus, eodore Hammett and Barbara Hobson, ‘Preface’ in ibid.
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The Importance of Timing
e management of historical court records, both in Massachusetts and
across the United States, was not something on which the courts or
the NCSC had haphazardly or accidentally focused in the early 1970s.
AsChief Justice Burger and the AALL had highlighted, courts’ records
were generally in a parlous state by the early 1970s and management had
remained fundamentally unchanged ‘for a hundred years or more’.64
Records and records management was therefore hardly a new issue or
problem. However, what appears to provide the motivation for it to be
addressed is increasing community awareness of the value of the courts’
records, driven by external events coupled with an acknowledgement
by courts of the value of their records to the community as a whole.
Massachusetts was able to take advantage of Chief Justice Burger’s call for
the establishment of a National Center for State Courts and additional
resourcing from the NHPRC to give impetus to its own eorts.
In the context of the records of Australian superior courts, it is dicult to
identify an event or events that might provide the same level of national
focus and motivation as the country’s bicentenary. However, given the
nature of the Federal Court’s collection of materials in particular, events
such as the 30th anniversary of the Mabo decision65 or the introduction of
the Native Title Act 1993 (Cth) might provide the basis for a renewed focus
by the community and by the government on the value of those materials.
Nevertheless, there is an important and perhaps perennial issue bound
upwithin the issue of timing, which is also worth noting.
Content and Purpose of the Records
e development of a records management policy for Massachusetts
courts was not something that was compelled or forced by the bicentenary
or the clamour of researchers. Just as with Australian Commonwealth
courts, Massachusetts courts are constitutionally separate from the other
arms of government, and any decision to change its practices was required
to be made by the courts themselves. What is critical to understanding
how comprehensive the process becomes is the overall commitment by
the courts to that process.
64 Burger, above n 20.
65 Mabo v Queensland (No 2) (1992) 175 CLR 1.
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10. ARCHIVING REVOLUTION
As noted above, while the initial Colonial Courts Records Project was
prompted in part by an acknowledgement that administrative practices
needed to change simply as a matter of eciency, it also acknowledged the
value of court records to the community as a whole. at is, the project,
survey and Hindus Report all acknowledged that the records were more
than merely records of process, but were also invaluable historical, social
and cultural records that might form part of a larger narrative about the
colony, state and, ultimately, the nation. For example, the former Director
of Archives and Record Preservation at the Massachusetts Superior
Court, Bruce Shaw, notes the purpose of court records retention is not
‘warehousing dead and static paper’, but the retention of materials that
‘are living historical documents’.66
is acknowledgement is also evident in some of the decisions made about
permanent retention. For example, the decision to preserve pre-1859
records was in part made on the basis that as biographical (andnot process)
records, they formed an invaluable part of a wider narrative, whereas other
elements of a resource ‘community’ took up the same story after 1859.
It is also evident in the decision that the project and the Hindus Report be
overseen by a committee drawn from a diverse array of interests. It is not
only the diversity of interests that is important. It is also that the process
of drafting rules about the records to be retained was overseen rather than
conducted by that committee. is is an important distinction. To have
the same committee review samples or attempt to develop a denition of
‘signicance’ rather than to review the outcomes of the sampling process
avoids compromise or confusion in decision-making and drafting.
In the context of the Australian Federal Court’s records, there is a need
to acknowledge that its records have more signicance than simply
arecord of process. As is discussed elsewhere in this volume, the records
have the same historical, social and cultural value, and the same integral
role as apart of a larger narrative, as the records of Massachusetts courts.
However, that acknowledgement must also come with an understanding
that to determine how to approach the management of that resource,
lawyers and judges represent only one perspective.
66 Interview with Bruce Shaw, Director, Massachusetts Superior Judicial Court, Archives and
Records Preservation (Boston, Massachusetts, 5 July 2017).
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Signicance and Sampling
One of the most challenging aspects of the Hindus Report and
theimplementation of Massachusetts record management practice isthe
seemingly simplistic manner in which the issue of ‘signicance’ was
ultimately determined. Without context, the practice of random and
oversampling based on physical size of les can appear to be only a few
steps above simply tossing les down a set of stairs and keeping those
closest to the top.
However, as has been summarised in this chapter and is discussed at length
in the Hindus Report, the manner in which the practice was developed
was based on an understanding of the nature of the records being surveyed
and objective testing of the proposed method against a substantial section
of the existing les. Put another way, the random sampling of les was not
a practice arrived at randomly.
As noted much earlier in this chapter, the practice is, and has been,
the subject of little complaint and even less discussion. It was also one
developed by taking into account the nature of the records themselves.
Hindus and his co-authors acknowledge that the same methodology may
not be appropriate for every set of records. is is very similar to the
decision taken, for example, by the Federal Court of Australia to keep
every native title court le but to keep only a smaller proportion of other
matters.67
However, there is a further interesting sidenote to the Hindus Report
that reinforces the extent to which a similar process might apply. In an
Appendix to the Hindus Report entitled ‘Historical Interest and the Front
Page’, Hindus and his co-authors discuss steps taken to address concerns
that had been expressed by the committee overseeing the project that the
sampling process would lead to the destruction of matters of ‘unusual
interest’.68
As a means of assessing the extent to which matters that might have
been the subject of signicant community or media interest, the Hindus
Report reviewed front pages of the Boston Globe for 1933 and traced
matters mentioned through the Superior Court’s les. What the process
identied was that the focus of media attention was predominately on
67 Records Authority No 2010/00315821, Federal Court of Australia (FCA), 19October 2011.
68 Hindus Report, above n 18, 185.
259
10. ARCHIVING REVOLUTION
criminal matters, which was not representative of the bulk of the court’s
overwhelmingly civil work. Second, and perhaps importantly for public
organisations with limited resources, the process of historical media
review and tracing was found to be time-consuming and labour-intensive,
particularly in the case of matters that might have a number of related
proceedings.69
Ultimately, there are no recommendations made about retention practices
and ‘unusual interest’. at is not to suggest that a court considering
a similar approach might not nd a need to address media interest.
Oneof the issues identied in the Hindus Report, though, is the demand
of a historical media review. However, in relation to current or prospective
records, the same issues would not be applicable. A current or prospective
matter might be marked for permanent retention as a result of ongoing
media discussion.
What the Hindus Report does warn against is the potentially distortive
eect of relying on media attention as an indicator of signicance. One
of the key concerns of the Hindus Report was to ensure that the sample
taken was truly representative of the work of the relevant court. As a
result, a larger sample of civil matters compared to criminal matters was
taken, as well as a smaller proportion of modern proceedings, given the
similarity of their content. e case le numbers selected for any one year
were also randomly generated to avoid taking a sample that reected any
one part of a legal year than another.
e distortive eect of media attention is something that needs to be
considered in the context of the work of each court to which a similar
methodology might be applied. e Federal Court of Australia, for example,
has adiverse jurisdiction. To the extent that media interest was to be taken
into account in a determination of signicance, it would be necessary
to review that criterion in terms of the eect that it has on the sample
collected for any particular year. In a year in which there is a large degree
of media focus placed on television broadcast rights70 or the enforcement
of intellectual property rights against ‘torrent’ downloading websites,71 care
needs to be taken to ensure that it does not produce a sample of matters that
are not representative of the work of the court as a whole.
69 Ibid 186.
70 Seven Network Ltd v News Ltd [2007] FCA 1062.
71 See, for example, the extensive litigation leading up to Dallas Buyers Club LLC v iiNet Limited
(No 5) [2015] FCA 1437.
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Washing Records: Record Preservation versus
Record Retention
What is not apparent from the work discussed in this chapter and
the implementation of the Hindus Report’s recommendations is the
substantial commitment that Massachusetts was required to make not
only to the proper identication of records, but also to the process of their
physical preservation.
Although discussed as early as the 1970s, the poor physical state of court
records was as much of a concern to researchers as the poor identication of
their location.72 e former Director of Archives and Records Preservation
at the Superior Judicial Court noted that from the start of the Colonial
Courts Record Project, it was necessary not only to identify where records
were kept but also to begin a process of repairing and preserving those
records.73 Consequently, Archives and Record Preservation has a large
document-preservation facility in the Superior Judicial Court Building.
Figure 3: Document preservation facility, Superior Judicial Court.
Source: Author’s photograph.
72 See, for example, Brink, above n 4; Harrall, above n 26; Wroth, above n 32.
73 Interview with Bruce Shaw, Director, Massachusetts Superior Judicial Court, Archives and
Records Preservation (Boston, Massachusetts, 5 July 2017).
261
10. ARCHIVING REVOLUTION
Archives and Records Preservation has continued to work on the
painstaking process of preservation since the 1970s, and continues on
that work today. By virtue of the sheer volume of materials, the process of
recovering and repairing records means that the end of the process may
still be some years away.
e eort required in the case of Massachusetts records is principally the
result of almost 200 years of inattention—a problem that the Federal
Court of Australia does not face. However, what the experience of
Massachusetts does highlight is that the practice of records retention, and
their acknowledgement as a valuable source, does not stop at the point
of selecting records but incorporates everything required to maintain
that record permanently. e National Archives of Australia has the
necessary expertise and facilities to ensure that that occurs. However,
while adecision on ‘signicance’ by the Federal Court is outstanding, and
records remain in its possession, there is a need to ensure that appropriate
steps are taken to ensure those records’ physical integrity before additional
remedial measures are required.
Conclusion
As examples of English colonial legal systems, the United States and
Australia share a common heritage. ey are steeped in the concept
of superior courts’ records providing a perpetual and incontrovertible
record of their contents. Both legal systems also share aspects of
acommon experience in developing awareness of the wider signicance
of those records as a social and cultural resource. Although the originsof
Massachusetts courts and the Federal Court are separated by almost
300years, that same common experience is nevertheless evident.
As this chapter has endeavoured to summarise, because of internal and
external pressures, Massachusetts courts were compelled to nd a way
of balancing the value of their collected records with the administrative
and nancial cost of simply retaining everything. e practice adopted
of random sampling and oversampling based on the physical size of a le
might, on rst look, appear to be haphazard and potentially dangerous
in terms of the potential loss of important historical material. However,
what this chapter has attempted to make apparent is that the current
practice developed based on an understanding of Massachusetts courts’
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role as part of a larger narrative of the nation’s history—both in terms
of those records that might not be found elsewhere and those records in
which information might be duplicated.
It would also be incorrect to assume that the practice equates signicance
to size—it does not. rough a careful survey and sampling process,
Massachusetts has been able to identify that, in that particular jurisdiction,
le size provides a clear and consistent indication of the potential
signicance of that record into the future.
What this chapter does not suggest is that another court, seeking to apply
Massachusetts’ experience, adopt le size as an indicator of signicance.
What is instead required is a careful sampling and survey of records to
determine what indicators might provide the same level of condence
and consistency in identifying appropriate records for retention as a
permanent archive.