Sensitive Materials Processing Guidelines

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Sensitive Materials Processing Guidelines

December 2006 These guidelines currently are under review by legal counsel of the University Library.

In processing personal and organization papers, archivists come across all manner of material that could be deemed “sensitive.” What constitutes sensitive material may vary widely among donors, archivists, and researchers. These guidelines establish a sensitive materials processing policy for the SHC by defining the parameters of sensitive materials and providing examples of what has been done in specific cases in the recent past. The goal is to manage the legal risk the University is exposed to by limiting the disclosure of certain information pertaining to identifiable living individuals represented in SHC collections without the consent of those individuals. The guidelines address information that is protected directly by federal laws, such as FERPA and HIPAA, and less directly, as when a cause of action under common law for invasion of privacy may arise if facts concerning an individual's private life are published that would be deemed highly offensive to a reasonable person.

Though it is not the primary responsibility of the processing archivist to identify sensitive materials in a collection, the archivists’ professional code of ethics calls for a good faith effort at identifying sensitive materials and bringing them to the attention of the donor. One would expect that donors would be aware of any sensitive material in the collection relating to him or her, but experience makes clear that donors are not always aware of what they give and they are even less aware of sensitive material that concerns third parties, such as their heirs. These two points, the variant interpretations of what constitutes “sensitive,” and the archivists’ professional code of ethics, necessitate guidelines to shape a common sense approach to sensitive materials that favors access over restriction.

A significant portion of concern for sensitive material can be eliminated by asking a couple of basic questions before imagining ahead to a lawsuit brought against the University for knowingly making a “sensitive” document available for research:

  • Does this document have research value?
  • Does it deserve attention above and beyond the fact that it has a sensitive materials concern attached to it?

If no, the document should be discarded with a clear conscience.

If yes, the below guidelines will help determine whether or not restricted access should be recommended to the donor and for how long.

As you, the processing archivist, evaluate the sensitive material at hand, remember these points:

  • The control file should be revisited to review restrictions outlined in the gift agreement. Donor correspondence may contain other clues.
  • Regardless of whom the sensitive material concerns, only the donor/person who signed the gift agreement should be contacted to discuss possible restrictions. If the matter concerns a third party represented in the collection, the person to contact is still the donor. If the donor needs time to consider a restriction, a time frame for resolving the matter should be established: “If I don’t hear back from you by __________, I will assume that no further restrictions are required.”
  • Contact with the donor should be documented in the control file with a copy of the letter or email or notes from the telephone conversation.
  • Sensitive materials with research value would never be returned to a donor or third party, unless the SHC should not have had the material in the first place.
  • For materials not governed directly by law, the bar for restriction is set high: the SHC seeks to provide access to as much material as possible that is NOT “extremely sensitive,” i.e., deemed highly offensive to a reasonable person.
  • Privacy ends with death. There are exceptions to this rule, but they should be few and far between. In the case of a deceased donor, contact an heir if possible.

Student Records

  • Report cards
  • Transcripts (personal copies)

Though the SHC does not collect institutional records, collections of personal papers occasionally include copies of institutional student records. FERPA takes an interest in these records for living persons, and accordingly processing archivists should too. It is important to remember that student materials referring to deceased persons do not carry any restrictions. Typically the SHC does not keep transcripts and report cards because they lack research value, but sometimes there is a compelling reason to retain the information or the artifact. If the item is worth keeping, and it refers to the donor of the collection or to a related third party, such as a spouse or child of the donor, then the item requires no restriction. It is reasonable to assume that a closely related third party would have some knowledge of the donor’s holdings of student materials. If the item refers to a non-family member, a restriction may be necessary if the item reveals information that would be offensive to a reasonable person. If there is nothing offensive, then no restriction is needed.

If, however, in any of the above cases the social security number is present and the person represented is still alive, physically separate the item and restrict for 70 years from the end date of the materials involved.

  • Papers and tests with grades/evaluations

Unlike report cards and transcripts, the decision to keep or discard these materials is nuanced. It is reasonable to keep papers and tests, with or without grades or evaluations, if they are the work of the donor of the collection. No restriction is necessary. The case for keeping is less compelling if they are the work of less significant third parties represented in the collection, such as the children of the donor. In general, no restriction would be necessary because it is reasonable to assume that a closely related third party would have some knowledge of the donor’s holdings of student materials.

Example

Richardson Preyer (#5111): The processing archivist kept Richardson Preyer’s college essays, but discarded most of the miscellaneous tests and essays of his children because the research value was not compelling. No restrictions necessary because Richardson Preyer is deceased and the third party material refers to his children.

When the papers and tests refer to unrelated third parties represented in the collection, such as when the donor is a faculty member who intentionally or unintentionally has kept student papers, then the resolution is different. Restrictions are necessary because these materials are considered student records by FERPA and the individual students are identified. It is possible to make student research papers available by a Deed of Gift or release form (in which the student basically waives FERPA rights for a specific term paper).

Example

Shelby Stephenson (#4653), English professor at UNC-Pembroke: Given experience with Stephenson’s papers donated thus far, the processing archivist assumed unintentional retention of student papers, and as such, discarded the whole group of them because they had little or no research value. Even if student papers had been intentionally retained, the processing archivist still would have questioned the research value and likely would have discarded.

It is worth noting that in the above case the school affiliation plays no part in deciding to keep or discard the student papers. If Stephenson taught at UNC-Chapel Hill, the student papers still would have been discarded because they lack compelling research value.

It is also worth noting that the student’s papers, as are all other materials in the SHC, are copyright protected and the researcher is responsible for determining fair use of these materials.

  • Letters of recommendation

These typically are copies of outgoing correspondence. The letters are open without restriction because they (typically) do not contain sensitive information. That the institution that receives a recommendation letter holds them in confidence for a period of time does not affect the SHC’s ability to make them accessible.

Example

Frank H. Kenan (#5078): The collection includes numerous letters of recommendation written by Frank Kenan. Although these letters in and of themselves do not have a lot of research value, they were kept because they reflect Kenan’s influence in education circles. No restrictions necessary.
  • Miscellaneous student records

Other miscellaneous records might include materials collected by an educational institution or organization. Keeping in mind special concern for third parties who inadvertently and unknowingly find their way into the SHC, carefully consider a restriction for materials that identify individuals.

Examples

Anne C. Stouffer Foundation (#4556): The collection includes files for individual students who participated in a secondary school scholarship program funded by the foundation. Files include grade reports, teacher evaluations, recommendations, and scholarship application materials of the individual students. Though these are not institutional student records governed by FERPA, the student files are closed to protect the privacy of the individuals identified. The restriction period is for 70 years from the end date of the student files. An individual who is represented in the collection may view his/her file and/or grant permission (in writing) to researchers to view his/her file.
Penn School (#3615): The collection includes Head Start materials with evaluations and profiles of students who are identified by name. Given that this is a high profile collection used by researchers both connected and unconnected to the donor, the processing archivist restricted these materials for 70 years.

Refereed Journals and Grant Proposals

  • Correspondence and writings of authors whose submissions were rejected

Scholarly and other journals typically do not make available the rejected author materials in order to protect the intellectual copyright of authors. Accordingly, these materials typically are discarded before a restriction is considered.

Example

Oyster Boy Review (#4897): This collection initially included rejected author correspondence, but the curator contacted the donor and suggested removing this material to comply with standard journal practice. The donor agreed.

For future accessions of journal records collections, the curator will model a restriction on that of the Southern Economic Journal Records (#4886):

The files in Series 3 (Undecided Article Issue Correspondence) and Series 4 (Rejected Article Issue Correspondence) are closed to research for a period of 70 years from the issue date as it appears on individual folders. The files in boxes 153-165 (Accepted Article Issue Correspondence) may be read for information only. Copying, citation, quotation, or publication of any material written by a living individual is prohibited without the written permission of that individual. The files in boxes 133-152 (Rejected Article Issue Correspondence and Returned Without Review) are closed to researchers until 1 January 2075.

If the donor is an organization that accepts grant proposals, the curator may or may not model a restriction similar to the Southern Economic Journal Records in the absence of direction from the donor.

Example The Lyndhurst Foundation (#4723): This collection has no automatic restrictions on grant materials. The gift agreement states:

Upon delivery of the materials to Library, there shall be no restrictions on access or use by the Library, unless explicitly specified by Owner at the time of delivery.

However,

If Library in the course of its use or examination of the materials delivered hereunder discovers any items which may reasonably be deemed as personal correspondence or otherwise containing sensitive information pertaining to ongoing grant programs or to persons involved in the work of the Owner, Library shall use reasonable efforts to notify Owner of such items and to request instructions as to how Owner would like such items to be handled. Library shall suffer no liability for its failure to so communicate to Owner in accordance with this paragraph.

The addendum suggests that the SHC staff needs to make a good faith effort to advise the donor of potential privacy and confidentiality concerns with respect to grant programs and employees, but ultimately is not responsible for identifying these materials. This disclaimer is particularly important because the SHC litely processes this collection. Identifying sensitive information would necessitate much more intensive examination of the materials.

In most cases, scholarly articles and grants will arrive as part of an individual donor’s collection:

If the donor is an individual who reviewed articles for scholarly journals, the reviewed articles should not be in the collection. Scholarly journals typically request that reviewers return articles to the editor, or dispose of them in order to protect the intellectual copyright of authors: discard accordingly. Because the articles should not be in the collection in the first place, the research value is not relevant to the decision to keep or discard.

If the donor is an individual who reviewed grants for a federal agency (such as National Endowment for the Humanities), there should not be any copies of grant proposals in the files. Federal guidelines mandate that grant reviewers dispose of grants immediately after a review has been filed with the agency, or after a designated amount of time, never more than a year: discard accordingly. Because the grant applications should not be in the collection in the first place, the research value is not relevant to the decision to keep or discard.

If the donor is an individual who reviewed grants for a private foundation, assume a similar set of guidelines and discard the grant applications. Even though we don’t know whether or not the donor was obligated to discard the grants at the time of review, we can safely discard them on the precedent of federal agency policy and lack of research value: while the grant proposals may be interesting, they do not carry much research value if the context in which they were created or the outcome of the funding process is unknown.

Barring specific circumstances noted in the control file, the only reason to keep an unpublished article or grant proposal in personal papers is if it was written by the donor of the collection. The same assumptions should be applied to fellowship applications. Unless a fellowship application was written by the donor of the papers, there is no reason to keep it, and often one or more reasons not to keep it.

Financial Materials

  • Salary information
  • Charitable giving history or potential
  • Banking, investments, insurance

If these materials relate directly to the donor, then there is no need to restrict access. If the materials relate to a known third party, such as another member of the donor’s family, then consider restricting the material. If the third party is unrelated, the materials should be open, unless the third party contacts the SHC and requests that they be restricted. Do not draw specific attention to these materials if they relate to a third party.

Example

William Clement (#4024): Financial information relating to the children of the creator is closed until 2051.
  • Income tax records

The SHC typically does not keep income tax records because they lack context, and therefore research value, but occasionally they are kept because in the absence of other financial material they can provide a good financial overview of the donor. If the processing archivist elects to keep an income tax form, and the donor is alive, the records must be closed until the donor dies because of the social security number. Physically separate the item and restrict for 70 years from the end date of the materials involved. If the income tax records are of a third party, such as the donor’s child, and the records are to be kept, set the restriction to “closed: review in 70 years.” A later review is required because the person could still be alive, in which case the restriction would be extended.

Example

Prudhomme Family Papers (#613): The income tax forms were kept because they provide an overview of the general store business operated by the family. The materials are open because there are no personal identification numbers and/or represented persons are deceased.

Medical Records

  • Medical bills
  • Correspondence with insurance companies
  • Correspondence with medical professionals

Scattered routine medical materials, especially hospital bills, more than likely will not be worth keeping because they lack research value. If for some reason they are to be kept, check for a social security number. If a SSN is present, and the person is still alive, the records will have to be restricted. Physically separate the items and restrict for 70 years from the end date of the materials involved.

Medical materials, such as correspondence, that provide substantial or descriptive information about a person’s health, such as concerning long term treatment of a disease or condition, are more promising in terms of research value. If the processing archivist decides to keep these items, they may need to be restricted if there is something of an “extremely sensitive” nature. The threshold for extremely sensitive, of course, will vary from one person to the next. Some medical conditions that bear consideration as extremely sensitive could include serious mental or reproductive health or substance abuse conditions. When in doubt, consult with the supervising archivist.

If the subject of the sensitive material is deceased, concerns for privacy diminish as it is widely accepted that privacy ends with death. If there is extremely sensitive material about a living donor or third party in the collection, the processing archivist should contact only the donor/person who signed the gift agreement to discuss a restriction. In the case of a deceased donor of a collection with extremely sensitive material relating to a living third party, concern lingers and the processing archivist might contact an heir of the donor to discuss a restriction. Whether or not a restriction is put in place by the donor or an heir at the time of processing, the SHC remains open to the possibility that a third party represented in the collection may at any time request a restriction on materials relating to him or her.

A word about HIPAA...

As understood by the SHC staff, HIPAA regulations do not affect SHC collections because the SHC is not a covered entity (see flow chart at http://www.cms.hhs.gov/hipaa/hipaa2/support/tools/decisionsupport/CoveredEntityFlowcharts.pdf).

The SHC may hold records of formerly covered entities that have protected health information that connects an identifiable person with treatment or billing, but because the SHC is not a covered entity, the SHC is not bound by HIPAA restrictions. However, the SHC fulfills its ethical responsibility to protect the privacy of individuals by placing reasonable restrictions on its medical materials. A 70 year closure from the end date of the materials involved is standard practice.

  • Papers of a medical professional or organization (could include patient files; correspondence with patients and insurance companies; a doctor’s journal of patient appointments, charges, explanations for visit)

Because of the potential volume of sensitive materials in such collections, the curator may want to consult with the donor and/or university counsel about legal and ethical considerations before accepting a collection from a currently or formerly covered entity, but technically is not obligated to. At the very least the curator will want to raise the issue of restrictions with the donor at the point of accession, and suggest that these materials be closed for 70 years from the end date of the materials involved.

Examples

Trent Busby Medical Records (#4948): The collection is comprised of medical records, 1950s-1990s, documenting a medical practice that today would be considered a covered entity. The records provide information on specific illnesses and treatments for individuals and on women's health in general. The collection automatically was closed until 2062, which is 70 years after the end date of the materials.

Bartlett Jones (#2204): The collection consists of physician account books, 1817-1830, with patient names, treatments, and charges for services provided. No restrictions are necessary because all patients represented in the collection are long deceased.

Legal Materials

  • Court materials (including motions, judgments, depositions, and other filings)

Court materials are public documents and therefore always available without restriction.

  • Case files (including correspondence, notes, and other materials) relating to a donor’s law practice

Making case files available for research is a question of risk management. In criminal and civil proceedings, when a person hires a lawyer, exchanges between the two are attorney-client privileged because the lawyer is acting on behalf of the client. Lawyers are legally and ethically bound to uphold this confidence at least until the client’s death, if not in perpetuity. Given the attorney-client privilege, a reasonable archivist might question whether a lawyer legally or ethically can place case files in an archive. Since archivists are not subject to the same codes that lawyers are legally and ethically bound to uphold, it is not the archivist’s responsibility to determine whether or not a lawyer can legally and/or ethically place his or her case files in the SHC.

Nevertheless, the curator will want to consult with the donor and/or university counsel about legal and ethical considerations (keeping in mind that these vary by state) before accepting a collection with case files, but technically is not obligated to. A thorough risk assessment should be done before accepting and providing access to the material.

Once the materials are accessioned the usual ethical responsibilities of archivists come into play. In keeping with the special concern for the privacy of third parties who inadvertently end up in the collection, case files of a donor who is a lawyer or law firm will be closed for a period of 70 years from the end date of the materials involved.

Examples

Richardson Preyer Papers (#5111): Case files are closed until 2025, which is 70 years after the last date in the case files series.
Harriet & Henderson Cotton Mills (#4961): Arbitration files are closed for a period of 75 years from the end date of the series.

It may be possible to write a restriction that allows researchers to consult the files, but not cite the names of the individuals involved without written permission from the individuals. This limited restriction would provide for more immediate access to the material and place ethical responsibility on the researcher. Of course the researcher may or may not abide the restriction, which could put the University at increased risk.

The personal case file(s) of living donors are open without restriction, based on the assumption that a donor is aware of what he or she has given to the SHC. The exception, of course, is for material that is of a sensitive nature, which may be restricted for a period of time. Some legal records that bear consideration as “extremely sensitive” could include divorce and child custody proceedings, in particular because these often involve third parties and could contain psychological evaluations. If the third party subject of the sensitive material is deceased, concern for privacy diminishes as it is widely accepted that privacy ends with death.

If the collection contains sensitive legal material about a living donor or third party in the collection, the donor/person who signed the gift agreement should be contacted to discuss a restriction. In the case of a deceased donor of a collection with sensitive legal material relating to a living third party, concern remains and an heir of the donor should be contacted to discuss a restriction. Whether or not a restriction is put in place by the donor or an heir at the time of processing, the SHC remains open to the possibility that a third party represented in the collection may at any time request a restriction on materials relating to him or her.

Business Records

Administrative Files

Donors of business records sometimes restrict current administrative materials as a matter of course. Allowances are sometimes made for access with written permission from the donor. Be sure to check the control file for the gift agreement.

Examples

Roses’s Stores (#5097): Donor imposed a 30 year restriction on access to records dating from 1985 forward (to 1996). The donor wanted to open a new portion of the records each year as materials passed the 30 year mark, but the curator instead closed all of the 1986-1996 materials until 2027 (30 years from the latest date) to simplify restriction maintenance.
Pierce & Company (#4614): Donor imposed a 20 to 30 year restriction: "All records hereby transmitted and antedating 1971 may be used without restriction. All 1971-1980 records may be used without restriction after the year 2000. All 1981-1990 records may be used without restriction after the year 2010."

Personnel Records

  • Pay stubs
  • Job applications and resumes
  • Miscellaneous employee records

These materials may or may not have research value. If you decide to keep them, they should be open without any restrictions, unless they include social security numbers of living people. If a personnel record is worth keeping and the social security number relates to a person who is alive, physically separate the item and restrict for 70 years from the end date of the materials involved.

Examples

American Furniture Manufacturers Association Records (#4957): Donor restricted personnel records relating to the pension plan for a period of 70 years. Records relating to terminations have an earlier end date and are restricted for a period of 80 years, probably to simplify restriction maintenance.
Rocky Mount Mills Records (#5211): Employee biographical data cards include social security numbers and are closed until 2066, a period of 70 years from the end date of employee records.
  • Grievance files

As with legal case files, grievance files typically are closed for a period of 70 years to protect the privacy of third parties who are unaware that they are represented in SHC collections.

Examples

Harriet and Henderson Cotton Mill Records (#4961): The donor requested that the non-arbitrated grievance files be closed for 75 years from the last date in series. The curator agreed to this slightly longer period of restriction.
Gerald A. Barrett (#4978): Files that include grievance reports related to Barrett’s work as an arbitrator between labor unions and companies are closed for a period of 70 years.

It may be possible to write a restriction that allows researchers to consult the files, but not cite the names of the individuals involved without written permission from the individuals. This limited restriction would provide for more immediate access to the material and place ethical responsibility on the researcher. Of course the researcher may or may not abide the restriction, which could put the University at increased risk.

Other Materials

  • Any item with a social security number

If the item is worth keeping and the social security number relates to a person who is alive, physically separate the item and restrict for 70 years from the end date of the materials involved. The SHC does not redact.

  • References to legal troubles, financial mismanagement, health problems, marital troubles, sexual identity, sexual relationships, and the like in correspondence, diaries, and other unexpected places.

If the sensitive information relates to the donor, there is no obligation to restrict the material because it is assumed that the donor is aware of what he or she donated. Nevertheless, a good faith effort on the part of the processing archivists is still required because donors sometimes are unaware of potential privacy and confidentiality concerns in the materials they donate, especially when it comes to third parties represented in the collection.

Example

Jeffery Beam (#4888): The collection contains material with explicit sexual content in which third party participants are identified. The curator suggested to the donor that this material be closed for a period of 80 years to protect the privacy of the identified third parties involved. The donor agreed.

If the donor is an heir of the creator, he or she possibly is unaware of the full content of the donation. If the processing archivist discovers sensitive material, it is a good idea to consult the donor about a possible restriction.

Example

Antonina Hansell Looker (#4482): The curator contacted the donor, the heir of the creator, to discuss a possible restriction on diaries with sexual content and identified third parties. The donor declined to restrict access. Given the age of the diaries (1930s), the SHC is less concerned with the privacy of the identified individuals than in the Jeffery Beam case above. Nevertheless, the SHC remains open to the possibility that an identified person in the diary may some day come forward to request a restriction.

Between the two above examples it should be evident that sexual content in and of itself is not cause for restriction; the devil is in the explicit description WITH identified third parties.

If the creator of sensitive material is a third party represented in the collection, consider whether the material passes the test for extremely sensitive: would a reasonable person find this offensive? If the material qualifies as such, consult with the supervising archivist as to whether or not to contact the donor for input about a restriction.

Example

Perry Deane Young (#5169): The collection includes a letter written to Perry Deane Young containing sexual content that could prove extremely sensitive to the letterwriter’s spouse and children, all of whom are identified by name in the letter and presumably living. The processing archivist restricted the letter for a period of 75 years from the postmark. (Upon review of the finding aid, the donor objected to any restrictions placed on the collection and withdrew the letter from the collection.)

If the sensitive material does not qualify as extremely sensitive, make no restrictions. The third party creator may at a later date request a restriction, but it is not our place to encourage limitations to access.

Examples

Allard K. Lowenstein (#4340): A third party represented in the collection requested that all materials relating to him be restricted until his death. The curator agreed to the request.
Paul Jones (#4787): A third party represented in the collection expressed interest in withdrawing materials related to him. The curator denied the request with this explanation: “I understand your concerns and would be willing to send you a copy of the letters for you to examine. However, since the letters were the legal property of Mr. Jones and he in turn transferred the property rights to the University, the originals cannot be destroyed or returned.” (Note: once a letter is received by the addressee, he or she becomes the owner of the letter. Copyright on the letter remains with the letterwriter.)

There are instances in which material that is not overtly sensitive has been restricted by the donor in order to protect privacy during one’s lifetime, but these should be few and far between.

Example

Louis Rubin (#3899): All materials of living persons other than Louis D. Rubin Jr. are closed to research until January 2018 (25 years) or until date of death of such persons, whichever occurs first, except with the written permission of the persons involved. This restriction requires that the researcher provide written permission from or proof of death of the person represented in the collection.

The SHC would never return materials with research value to a donor or third party because of content extremely sensitive or otherwise.

Example

Kay Kyser and Georgia Carroll Kyser (#5289): A third party represented in the collection contacted the curator to request that a script he had written and given to the donor be returned to him. The curator explained that the script was now state property covered by a gift agreement and could not be returned. The curator offered to remove the reference to the script in the finding aid and to close the script for a period of ten years. Even though the copyright still belongs to the scriptwriter, we respect the scriptwriter's concern for protection of his intellectual property for a defined period of time.

One exception to this rule is in the case in which the SHC never should have received the material in the first place.

Examples

Gail Godwin (#5055): The processing archivist identified sensitive content—sexual content with identified third parties and recreational drug use with identified third parties—in a diary written by someone other than the donor, whereupon the curator contacted the donor to discuss a possible restriction. The donor requested that the diary be returned to her because it never was intended to be part of the collection. That the diary contained sensitive content is secondary to the fact that it did not belong to the SHC in the first place.
Algonquin Books of Chapel Hill (#4736): Personal papers of Shannon Ravenel, an editor, were returned to her as she already had promised them to another repository.

The SHC has discarded or returned sensitive materials, but only after determining that the research value was negligible. A processing archivist, for example, elected to discard unproven, slanderous material assembled by a collection creator about a third party. The material was of negligible research value and presented a liability risk for the University.

Example

Morris R. Mitchell (#3832): The processing archivist elected to restrict some personal correspondence that evidenced the marital problems of the donor and his first wife until both parties were deceased. Some time afterward an heir of the donor withdrew the material altogether. Given the negligible research value of the material the curator did not object.

Concluding Thoughts When all is said and done, the processing archivist should take heart and sleep well at night by adding the following University Counsel-approved statement to the finding aid of any collection that has sensitive materials, either discovered or awaiting discovery:

“This collection may contain materials with sensitive or confidential information that is protected under federal or state right to privacy laws and regulations. Researchers are advised that the disclosure of certain information pertaining to identifiable living individuals represented in this collection without the consent of those individuals may have legal ramifications (e.g., a cause of action under common law for invasion of privacy may arise if facts concerning an individual's private life are published that would be deemed highly offensive to a reasonable person) for which the University of North Carolina at Chapel Hill assumes no responsibility.

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