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Confidentiality Right Rejected

July 9, 2012

A federal appeals court on Friday rejected a lawsuit by two researchers seeking to quash a subpoena for access to oral history records held at Boston College.

The researchers argued that federal courts need to consider the impact on academic freedom and scholarly research if oral history transcripts for which the research subjects expected confidentiality are turned over. In this case, the records are being sought by the British government, which continues to investigate killings during the “Troubles,” a period of intense violence in Northern Ireland. The U.S., acting at Britain’s request under terms of a treaty between the two nations, is seeking to obtain the records.

Many research subjects give oral history interviews with the expectation of lifetime confidentiality (as was the case here), and historians say such agreements are essential to encourage frank answers to their questions, especially if their questions involve potential activities that are illegal or that may lead to recriminations for those giving the interviews. As a result, the case has been watched closely by researchers not only in the United States but in other countries where oral history is used.

While some courts have agreed that academic freedom interests deserve consideration in fights over subpoenas and confidentiality agreements, they have shied away from shielding scholars’ research in the same way that communication with one’s lawyer is protected.

In the current case, there are several overlapping suits seeking to quash the government’s subpoenas, and Friday’s ruling does not address them all. But the ruling weighs the government interest in investigating crime as far more important than scholars’ interest in promoting oral history.

“The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers,” said the decision issued Friday.

The decision cited other cases in which courts have rejected confidentiality agreements. Primarily the court relied on rulings that rejected reporters’ rights to maintain confidentiality agreements they made with sources. But the court also cited cases in which academic institutions were denied the right to keep confidential personnel records sought by the Equal Employment Opportunity Commission in investigating bias claims.

The cases, together, show that there is no absolute academic privilege of confidentiality, and why courts must defer in cases of law enforcement, the decision said.

The appeals court faulted the way the Boston College project was run, noting that at various points college officials told the researchers that confidentiality could be protected only to the extent of U.S. law, but that this was not stated in the agreements with research subjects. “We add that this situation was clearly avoidable,” the decision said. “It is unfortunate that BC was inconsistent in its application of its recognition of the limits of its ability to promise confidentiality.”

But the court said that this did not give the researchers any additional rights to challenge the subpoenas. “That failure in the donation agreement does not change the fact that any promises of confidentiality were necessarily limited” by the principle that individuals can’t generally make a pledge and assume that the government will respect it, especially if law enforcement is involved, the decision said.

While the decision was unanimous, one of the three appeals court judges -- Judge Juan R. Torruella -- expressed concern about the impact of the case on researchers’ academic freedom rights. In a concurring opinion, he said that he was bound by Supreme Court decisions to vote with the majority.

He said that it was important to state that there is “some degree of protection” under the First Amendment for the work of researchers.

“Confidentiality or anonymity, where prudent, naturally protects those who seek to collect or provide information,” Torruella wrote, adding that those who gather and provide information are entitled to First Amendment protection.

He wrote that it was important to remember that once First Amendment issues are raised, as they are here, “balancing the interests on either side” of a subpoena “is both proper and essential.”

The Supreme Court has ruled that treaty enforcement and law enforcement have so much power that the concerns he is raising are “regrettably moot,” the concurrence said. Torruella also defended the right of the researchers to push their own case, and not to rely on Boston College to do so.

“I harbor doubts as to whether Boston College could ever adequately represent the interests of academic researchers who have placed their personal reputations on the line, exposing both their livelihoods and well-being to substantial risk in the process,” the concurrence said.

Chris Bray, a graduate student in history at the University of California at Los Angeles who has strongly backed the researchers in blog posts, said Saturday that the appeals court had gone too far in simply accepting the government's word that Britain had legitimate law enforcement needs. Many legal actions are politically motivated, Bray said, and judges that admit that would give more credence to scholars' claims.

"The long-term implications [of Friday's decision] are that governments can pursue any kind of politicized fishing expedition into the archives that they feel like pursuing, and the courts will take their word for it when they say they're pursuing a criminal investigation," Bray said. "The phrase 'criminal activity' becomes a magic key that opens any door, whether or not the governmental intent is to seriously pursue criminal prosecution and whether or not there's a political angle to that pursuit."

Ed Moloney, one of the researchers, said via e-mail that he was "very disappointed" in the appeals court. And he said that he was "determined to continue our legal fight to stop these interviews from leaving the custody of Boston College."

Was Oversight Proper?

The comments in the decision about whether this controversy could have been avoided may focus more attention on the agreements between the researchers and the research subjects.

Jack Dunn, a spokesman for Boston College, said via e-mail that "the contract, which project director Ed Moloney signed, clearly stated that there were limits to confidentiality based on American law. The contract superseded the subsequent donor agreements. It is a shared regret and a shared responsibility among Ed Moloney, Anthony McIntyre [the other researcher] and Burns Librarian Bob O'Neill that this caveat was not included in the donor agreements, but the limitations of confidentiality were clearly expressed and known by Ed Moloney and Anthony McIntyre when they embarked on the interview process with former IRA members."

Moloney, however, said that this was the responsibility of the college. "Drawing up the contracts and decisions about their content was done by Boston College, not me, as was proper," he said.

The Boston College chapter of the American Association of University Professors has also been asking for more information about how the research project was approved.

A letter from the chapter to senior Boston College officials in March said that "recent reports have raised serious questions about the research procedures of the Belfast Oral History Project and whether they may have violated professional standards." The letter requested an independent outside investigation into the matter, saying that "Boston College must take proactive steps to answer these questions to uphold the university’s standing in the international scholarly community." Further, the letter said that, "given the sensitive nature of the research and the complexities of protecting human subjects in this case, the committee should also investigate the extent to which the research methods and procedures were subject to institutional review and oversight."

David Quigley, dean of arts and science at Boston College, wrote back that the college's legal counsel had determined that the project did not meet the definition of human subjects research that would require an institutional review board review and approval. As to the suggestion of an outside investigation, Quigley wrote that since the research was the subject of litigation, the college would be "better informed" after the litigation on whether an investigation was needed.

The AAUP is not satisfied with that answer and has sent another letter asking what oversight was provided of the project -- in the absence of IRB review. Further, the AAUP letter asked whether inadequate oversight may "have contributed to the differences of opinion between the researchers and Boston College over the legal limitations to confidentiality."

 

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