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Reprieve for Oral History

January 3, 2012

A last-minute stay from the U.S. Court of Appeals for the First Circuit has blocked efforts by British authorities to obtain documents from an oral history project at Boston College. While the college was prepared to turn over the documents, as ordered by a lower court, a stay was obtained on behalf of those involved in the oral history project.

The stay -- issued Friday -- followed two December rulings by a district court judge, William G. Young. First, he refused a request by Boston College to have subpoenas for the documents quashed, instead saying that he could conduct a private review of the papers. In the ruling, Judge Young said he would weigh a variety of factors, including U.S. treaty obligations to Britain, and the impact of turning over confidential oral history documents on future academic research. Then last week, in a follow-up ruling, Judge Young ordered the release of documents related to interviews with Dolours Price, a woman in Northern Ireland who backed efforts by the Irish Republican Army to gain independence from Britain.

When Boston College declined to appeal the ruling, two of those who conducted interviews for the project requested the stay -- and it was granted just as the documents were supposed to be turned over to British authorities. The brief stay order said simply that the appeals court was acting "to preserve the status quo" pending a review -- and gave the U.S. government until Monday to respond.

Last week's legal actions were the latest in a complicated, controversial case that some fear could hinder scholarship by discouraging research subjects from granting oral history interviews that they hope to be confidential for set periods of time. While many oral history interviews are not remotely controversial, scholars who study violent conflicts or illegal acts (or, as is the case in the Boston College project, both) routinely report that research subjects will give interviews only on the condition that they be kept private for some length of time -- and sometimes for the duration of the life of the research subject. Scholars say that such interviews may be the only way to get honest assessments of historical events from key participants.

The issue before various federal courts has been how much protection scholars have to protect confidentiality pledges they have made. Boston College and academic groups have acknowledged that there is not the same absolute privilege for things told to a researcher that exists for, say, communications with one's lawyer. Still, they have argued, there are many precedents in which courts have respected academic freedom as a vital value, and one that deserves significant consideration by courts. But the U.S. government has argued that there is no confidentiality privilege for academic work -- and that researchers cannot expect courts to protect the pledges they have made to research subjects.

The documents in question are part of the Belfast Project, an oral history collection of interviews with key players in "the Troubles," a period of considerable violence in Northern Ireland. British authorities -- citing obligations made by the United States in a treaty -- say that they need access to the documents to investigate serious criminal acts (including murder). Some Irish and Irish-American groups have questioned the British motives in the case, saying that the real goal is to score political points against and to harass Irish nationalists.

Jack Dunn, a spokesman for Boston College, said that the institution did not appeal the judge's order, even though it had originally sought to quash the subpoenas. Dunn explained that the judge -- after reviewing all of the materials -- decided to order the release only of those documents involving Dolours Price.

"We are complying with his ruling because it is the best legal outcome at our disposal," Dunn said via e-mail. "Judge Young has ordered that we turn over nothing more than the Price interviews at this time. By appealing the judge's decision we would have run the risk of a circuit court judge ordering that all of the Belfast Project materials be turned over to British law enforcement, which would be the worst possible outcome for proponents of oral history."

Dunn said that the college did not play any role in the request for a stay filed by those who conducted the interviews for the Belfast Project.

While Boston College has portrayed itself as defending its oral history collection, some historians and some of those involved with the Belfast Project say that the university has not done enough -- and that it should have exhausted all appeals before turning over anything to a judge.

Chris Bray, a graduate student in history at the University of California at Los Angeles who has been blogging about the case, wrote last week that "Boston College has allowed itself to be turned into a police agency of the United Kingdom, securing extraordinarily sensitive information with a promise of confidentiality that was then abandoned."
 
Ed Moloney, an Irish author who oversaw the Belfast Project interviews, is one of those who successfully asked for the stay of the judge's order. In an interview with Inside Higher Ed, he said that those who participated in the project never would have done so but for their expectation of confidentiality. He said that most of the interview subjects never would have talked, even with confidentiality pledges, except that the project was going to be housed in the United States, "the land of the First Amendment."

Moloney said that he was led to believe that Boston College "would fight tooth and nail" before turning anything over to anyone in violation of a confidentiality pledge.

He stressed that he viewed this issue as "one of life or death." Moloney said that information in the project could be used by British authorities to try to put people in jail for many years. And when people find out who has been interviewed, he said that they will be in danger of being killed by people who do not want them to testify in any court proceedings ahead. "This is about people who can lose their lives," he said. "Interviewees could be charged or could be shot."

Among the historians who have been monitoring the case is John A. Neuenschwander, a professor emeritus of history at Carthage College, a municipal judge and the author of A Guide to Oral History and the Law, published in 2009 by Oxford University Press.

Neuenschwander said he was concerned about the precedent set by turning over such records, and so was pleased to learn of the stay granted by the appeals court. "I think that for the academic community and oral historians, it's obviously a positive step that the First Circuit would give a stay," he said.

In terms of the long-term impact on the willingness of people to do oral history interviews, Neuenschwander said this may depend on the circumstances. He noted that a large part of the legal battle over the records at Boston College is based on a treaty between the United States and Britain that appears to give wide ability of law enforcement agencies to gain access to information in the other country. He noted that most disputes involving oral history confidentiality are unlikely to be determined in part by interpreting a treaty between two allied nations.

 

But the Belfast Project is not the only oral history work that involves violent conflict or illegal acts, Neuenschwander. For people doing work on such topics, he said, "this is an unfavorable precedent that could have a chilling effect."

 

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