First Circuit Upholds Order To Release Oral Transcript Archival Material for UK Criminal Investigation

The First Circuit Court of Appeals issued an opinion last Friday that should be read by every archivist that promises confidentiality to contributors who may be involved in criminal activities.  The case concerns interviews and transcripts held in Boston College’s Burns Library.  They were made by various participants in “The Troubles” between the British Government and Irish paramilitary groups.  Previous LLB coverage on the case is here. 

The United Kingdom requested copies of specific transcripts from the oral histories as part of an investigation into an unsolved murder of an alleged informant in 1972.  The UK made the request under the Mutual Legal Assistance Treaty it held with the United States.  Boston College initially resisted the multiple subpoenas from the United States for the materials.  The District Court denied various motions to suppress. The First Circuit now affirms that result. 

The appeal has a convoluted procedural history based on the interests of the different parties involved.  Ed Moloney heads the Belfast Project at Boston College.  Anthony McIntyre is a former IRA member who works as a researcher for the Project.  Boston College told Moloney to include a clause in the interviewee contract that confidentiality would be observed to the extent that American law allows.  That clause was not in the contracts, though Moloney did promise participants confidentiality. 

Boston College decided not to appeal some of the subpoenas in the case.  Moloney and McIntyre tried to intervene in the case but the District Court denied that attempt.  They filed separate suit alleging the right to intervene; a claim under the Administrative Procedure Act; and various constitutional and procedural issues.  That suit was dismissed and the opinion at hand addresses those issues, and disposing of most of them as failed claims or describing them as not controlling in the case. 

The most important elements of the opinion analyze the academic freedom issues compared to a reporter’s privilege.  The Court of Appeals stated they are not comparable, and even if they were, reporters have no special privilege when it comes to criminal investigation.  The Court dismissed the notion that the University could guarantee confidentiality by the accidental omission of the “full extent of American law” clause.  Money quote: 

The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers. 

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That failure in the donation agreement does not change the fact that any promises of confidentiality were necessarily limited by the principle that "the mere fact that a communication was made in express confidence . . . does not create a privilege. . . . No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice."  Branzburg, 408 U.S. at 682 n.21 (quoting 8 Wigmore, Evidence § 2286 (McNaughton rev. 1961)) (internal quotation marks omitted).

The Daily Beast has coverage on the case here.  [MG]