Limited Right to Confidentiality

A federal judge on Friday ruled that he would conduct a private review of confidential research interviews by Boston College to determine whether they should be turned over to the British government, as it and the U.S. Justice Department have requested.

The decision by Judge William G. Young said that Boston College and the two governments both have "significant interests" in their positions in the dispute -- with the governments seeking to enforce the law and treaty obligations, and the college seeking to preserve confidentiality promised to research subjects.

In different parts of the decision, Judge Young sided with each party. In support of the government position, he rejected the college's request to quash the subpoenas, and said that the material they were seeking was important and related to legitimate government interests (law enforcement). But he sided with the college (and its scholarly supporters) in saying that academic freedom issues deserve consideration here. In so doing the judge directly rejected government claims in the case. Similarly, the judge discarded the notion that courts should simply grant such subpoenas without a review.

The case is attracting significant interest in Ireland and Britain -- and among historians in the United States who fear the implications the dispute could have for those who conduct oral history interviews. Many such interviews are conducted under pledges of confidentiality for set time periods or (as in the case of the Boston College interviews) until the deaths of the people being interviewed. Researchers say that confidentiality pledges allow scholars to obtain valuable information over the long run -- from people who would be reluctant for legal, political or safety reasons to talk frankly if the interviews were made public in the short term.

The Boston College case is a perfect illustration, researchers say, of both the promise of oral history and the complications raised by demands that confidentiality pledges be broken.

The materials in question are part of the Belfast Project, a set of interviews with key figures during "the Troubles," a period of violence in Northern Ireland from 1969 that extended for several decades. The interview subjects for the project include people who were affiliated with groups accused of numerous violent acts. The British government maintains that access to the records would assist in investigation of serious criminal acts, including murder. The British government, with backing from the U.S. Justice Department, says that treaties between the United States and Britain compel the court to order Boston College to turn over the relevant records.

The U.S. government, acting on behalf of the British government, asserted that the court should just enforce the request for information. Judge Young rejected that idea, and said that while certain kinds of government requests deserve deference, there is no immediate requirement that courts simply enforce these requests.

In its various filings, the government also asserted that there were no academic freedom issues at play in the case -- a position that alarmed many historians. A federal brief in the case said that courts "have not recognized an 'academic privilege' akin to the attorney/client privilege or the Fifth Amendment protection against self-incrimination." Further, the brief said that granting Boston College's request for consideration of academic freedom issues would have a dangerous impact.

"To grant the motion to quash would encourage other persons engaged in collecting 'oral histories' -- whether they be legitimate academics, or the purveyors of pulp fiction collecting ‘confessions’ about organized crime -- to promise complete confidentiality, relying on the court to enforce that ill-advised promise," the Justice Department argued.

But Judge Young said that the potential impact of a ruling on the ability of scholars to conduct research was relevant and appropriate to consider. While he did not recognize any broad immunity for academic documents, he noted evidence that Boston College collected this information in ways that assured research subjects of confidentiality. And he said that government requests "targeting confidential academic information deserve heightened scrutiny."

The ruling said that it is appropriate to consider the college's "attempts to ensure the long term confidentiality of the Belfast Project, as well as the potential chilling effects ... on academic research."

At the same time, Judge Young said that the government's requests were legitimate. Some critics of the government's request for information have questioned the motivation of the British government in seeking the information, suggesting that it is seeking political revenge against proponents of Northern Ireland's leaving British rule. But Judge Young made clear that he views the requests for information as part of a law enforcement process -- and that view may make it hard for the college to prevail, even with the judge considering the impact on academic research.

"The United States government's obligations under the [treaty with Britain] as well as the public's interest in legitimate criminal proceedings are unquestioned," he wrote in the conclusion of his 48-page opinion. And earlier in the opinion, he first outlined the crimes Britain is investigating -- murder, conspiracy to murder, incitement to murder, aggravated burglary, false imprisonment and kidnapping, among others. Then, he said: "These are serious allegations and they weigh strongly in favor of disclosing the confidential information."

Judge Young ordered Boston College to turn over the documents by noon on Wednesday, but noted that he was giving the college time to appeal for a stay.

The college, however, says it will comply with the ruling, and has no plans to seek a stay. "The court's decision recognizes the importance of protecting confidential oral history material gathered for academic research, and the need to weigh those considerations against the compelling interests of law enforcement," said a statement from the college. "Boston College is grateful that the court is willing to undertake the review of the materials in the archives and will cooperate fully with the court as it carries out its review."

Chris Bray, a graduate student in history at the University of California at Los Angeles who has been blogging about the case at Cliopatria, wrote Friday that Boston College should ask for a stay, and said that academic leaders have not recognized the significance of the case. He said he didn't have "much hope" that Boston College would appeal, given "the politeness of their arguments before the court."

Added Bray: "[A]cademia as a whole has been almost entirely silent about these subpoenas. That silence, and the indifference it implies, will continue. After all, we're only talking about tearing down the confidentiality of academic research. The mere governments of the world are nowhere near as terrifying and powerful as a real behemoth like the Wisconsin GOP. Academics have a shrewd eye for the really important stuff."