Disclosure of BC interviews reversed in part

Boston College, Boston College case, Confidentiality, DOJ, First Circuit

Disclosure of BC interviews reversed in part
Tom Egan
Mass. Lawyers Weekly
05-31-2013

The 1st U.S. Circuit Court of Appeals has handed Boston College a partial victory in its battle against a subpoena for interviews conducted by “Belfast Project” researchers.

The subpoena was issued pursuant to Article 5 of “US-UK MLAT” — the Treaty Between the Government of the United States and the Government of the Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance on Criminal Matters.

U.S. District Court Judge William G. Young ordered that 85 interviews in BC’s possession be turned over for eventual transfer to the UK authorities.

The federal government contended that courts do not have discretion under the US-UK MLAT to review for relevance materials subject to a subpoena. “It states that only the Attorney General, not the courts, has discretion to decline, delay or narrow a request under the treaty,” Judge Juan R. Torruella noted for the 1st Circuit panel.

“If we were to accede to the government’s position and hold that courts must always enforce a commissioner’s subpoenas, we would be (1) allowing the executive branch to virtually exercise judicial powers by issuing subpoenas that are automatically enforced by the courts; and (2) impairing our powers by acceding to act as rubber stamps for commissioners appointed pursuant to the treaty,” the 1st Circuit reasoned.

“Such subservience is constitutionally prohibited and, ergo, we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers,” Torruella announced.

“In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States,” the court concluded. “Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

The court went on to find some of the interviews to be irrelevant.

“After carefully reviewing each of the materials in question, we find that although a number of interviewees provide information relevant to the subject matter of the subpoena and that the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena,” Torruella explained.

The 29-page decision is United States v. Boston College, Lawyers Weekly No. 01-135-13.