Archives and Knowledge Management

The Challenges and Benefits of Establishing Foundation Archives: A Legal Perspective

Editors’ Note: John Tyler, general counsel for the Ewing Marion Kauffman Foundation, adds his perspective to HistPhil‘s forum on archives and knowledge management.

As other posts in HistPhil’s forum on archives have ably demonstrated, foundations contribute to the creation of extraordinary amounts of knowledge, tools and information. As foundations consider options for what to do with those creations, both now and for posterity, several important factors should inform their determinations.

First, there are questions of “what” is being created and “how” it is created. Also relevant and perhaps even more determinative – depending on the objectives for preservation – are the foundations’ underlying legal rights and privacy interests. Last but not least are foundations’ perspectives on their roles and responsibilities, strategies and goals, and approaches to cost. Being thoughtful about these topics will facilitate the inevitable balancing between various priorities and values that must be made when considering how to approach foundations’ knowledge products, especially with regard to posterity.

For instance, different answers to questions about what is being created, and how, can present different efficiencies and/or impediments to archiving.

The “what” includes an extensive array of intended outputs such as analyses of programs and participation, platforms, studies, aggregations of results, reports, curricula, databases, diagnostic tools or treatment interventions, evaluation methodologies, artwork, photographs, and videos. These might be called “primary” because they are both ultimately intended objectives and may be most important to the grant and its purposes for the foundation, grantee, or otherwise.

The “what” also includes products that are incidental, secondary, or in service to those primary ends: landscape surveys and analyses, intervention hypotheses and methodologies, analytical algorithms, tracking and survey tools, delivery or access platforms, experimental components or frameworks, infrastructure, security protocols, surveys, assessments of proposals, community organizing strategies and tactics, contact information, websites, logos, etc. These products are less often thought of as the focus of archival attention, but they can provide valuable information for researchers.

The “how” created also has two relevant sub-categories. One is the knowledge, tools, and information that foundations create directly through their own employees, contractors, programs and operations. These direct creations – both primary and incidental – should be relatively easy to direct, preserve, and make available, both today and tomorrow, because of the foundation’s direct involvement in their creation.

Probably much more common, however, are the primary and incidental creations of grantees using foundation funds and other resources. These “indirect” or “other-created” sources of knowledge, tools, and information are more challenging for a foundation to use, allow others to use, or archive. Yet these challenges need not be prohibitive, as long as they are understood and addressed, ideally in advance.

Foundations naturally have unique vantage points for thinking about maximizing the usefulness of primary outputs and their incidental but often no less important companion creations. As funders across multiple grantees, foundations, for instance, can aggregate knowledge, tools, and information, and they can connect providers, tools, and resources.

Across those and other roles, foundations have the luxury (or perhaps the responsibility) of acting for the here and now while at the same time planning for what yet may come. It is in that forward-looking mode that foundations have opportunities to affirmatively consider posterity; that is, preserving knowledge, tools and information for future generations and uses, and anticipating what may be useful for those generations and uses.

As with many goals in philanthropy, there is no single way to pursue preservation. There isn’t even a single way to go about deciding whether or how to go about doing so. So much depends on a foundation’s purposes, including donor intent and its philosophies about the roles of philanthropy in our social, economic, and political systems. Many practical, legal, and other considerations can lead similarly situated foundations to diametrically opposite conclusions. It may even be that the same foundation makes different decisions at different times based on then existing conditions or assumptions.

Consider two similarly sized foundations both focused on a local community. One may believe more deeply in maximizing impact of present-day services. The other might recognize that tomorrow’s opportunities for serving the community are built on capturing and learning from today’s knowledge and experiences, some lessons only available over time with more experience. It might then invest more in archiving its learning. Even that foundation may change its approach in the wake of fires, tornadoes, deep unemployment, or other circumstances that impact its target community. Or a later generation of board members or managers may believe differently and want to focus resources on then existing needs and services.

Thus arises another key aspect of the analyses: preservation takes money, time, energy, and infrastructure – physical and digital – and not just for development but also for ongoing maintenance. Some might dismiss these efforts as “administrative” and thus wasteful. Others might conclude that opportunity costs and harms from not preserving are too great.

Moreover, it isn’t just costs to the foundation; costs to grantees, who may or may not be eager to engage, can also be a concern. They may lack staff, technology, or other resources necessary to devote to preservation, even if supportive. Absent thoughtful consideration and engagement with grantees, foundations risk imposing “unfunded mandates,” “mission drift” or other “distractions” on those they fund.

Clear goals for preservation – being able to definitively state “why” — can help mitigate the potential for those downsides and even protect against incurring them.

A principled, goal-oriented approach can also be essential for calibrating the various legal issues that arise with archiving, especially issues of ownership, use and delegation rights, and privacy concerns. These issues are not necessarily complicated if the goal is serving the foundation’s internal purposes. The necessary rights presumably will already exist for what the foundation creates internally, and rights or permissions to be acquired from grantees are minimal, provided the foundation has requested the relevant materials from the grantee.

A foundation that wants to be able to replicate, scale, or expand or allow others to do so – whether now or in the future – must have the right to do so. It can either acquire those rights as part of the grant or agreement or it will need to acquire them later, which may not be as efficient. If it uses, or allows someone else to use, another’s property without permissions, a foundation risks being sued for infringing those rights, which might involve punitive damages.

Another foundation may be less proactive and more conservative in only wanting the knowledge, tools, or information for itself or perhaps for third party research. For instance, a researcher may be less interested in expanding on a survey tool than she will be in the circumstances under which the tool was developed, its iterations, how it was deployed, and what was learned from it. Ownership or use rights will not be as relevant then as the ability to allow third party access to the relevant knowledge, tools, or information. Confidentiality expectations or obligations that might apply morally, contractually, or legally will be much more important to archival considerations.

Privacy interests might exist for the foundation itself, its employees and board members, and its donors and family members. Grantees, those whom they serve, and those who provided information and their progeny may also have protectable interests. These various interests might run the gamut from the merely uncomfortable or embarrassing to that which the law explicitly protects, such as information from minors or about health, education, homelessness, or national security.

Thus, more than providing only for aggregation and preservation, the foundation also may need to ensure the physical and digital security of its archived content, even if it only intends limited internal uses.

All these considerations must be taken into account by a foundation thinking through its commitment to archiving. There is, of course, no one-size-fits-all approach to the task. The posts in this series make that point quite well. But the common theme among them all is the importance of careful planning, deliberate reflection about aims, objectives and costs, and thoughtfulness about the interests of the multiple groups that could be benefited or affected by the foundation’s approach to preserving its past.

-John Tyler

John Tyler is General Counsel, Secretary and Chief Ethics Officer for the Ewing Marion Kauffman Foundation. He also serves and has served as a member of various governing and advisory boards in the sector (e.g, Philanthropy Roundtable, Independent Sector’s Public Policy Committee, NYU’s Nat’l Center on Philanthropy and the Law), and frequently speaks and writes on topics related to the roles of philanthropy in society, impact investing and social business, among others.

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