Discussion of Boston College/IRA Oral History Case
SAA’s Government Affairs Working Group has drafted a document summarizing a case in which Boston College had signed an agreement to house oral histories regarding the “Troubles in Ireland” that later were subpoenaed.
- Boston College/IRA Oral History Project Discussion Document
Prepared by the SAA Government Affairs Working Group for Council Discussion in January 2013; Revised and Posted on February 11, 2013
March 2013: NOTE: This document is currently under review and being revised.
- See also: SAA: Discussion of Boston College/IRA Oral History Case – Ed Moloney Response
Response of Belfast Project Lead Researcher Dr. Anthony McIntyre
Lead researcher for the Belfast Project, Dr. Anthony McIntyre, offers his response to the SAA/GAWG document on the Boston College/IRA Oral History case.
In response to a recent statement prepared by the Society of American Archivist Government Affairs Working Group for SAA Council discussion on the ‘Boston College/IRA Oral History Situation’ it was somewhat dispiriting to read the following comment from Society of American Archivists President, Jackie Dooley:
Today we hear from Frank Boles, SAA past president and chair of our Government Affairs Working Group, who led the work to develop our statement. He and his merry band of GAWGers always do excellent research and thinking before they send a document to Council, and this one is no exception.
It struck me that a casual reader could be forgiven for deducing that that Ms Dooley and I had been reading different documents from Frank Boles: the one he submitted to the SAA Council and then another which the Council put out as a discussion statement outlining its stance in respect of the Boston College legal battle.
Without being dogmatic, it simply defies standards of excellence to attribute ‘excellent research’ to Boles and his colleagues who took the lead role in the preparation of the SAA statement on the Boston College affair. This is hardly a churlish response from an aggrieved researcher. It is easily borne out by the litany of incontestable mistakes that ‘excellent research’ could never have plausibly churned out. Ms Dooley, if she is familiar with Euripides, would appreciate the prudence in his comment that ‘a bad beginning makes a bad ending.’ Alternatively a purposeful bad end can produce a bad beginning. Consequently, one is compelled to explore the possibility that the end result of taking no action was decided in advance and the research tailored to fit.
Some of the mistakes that litter the SAA discussion statement are surface flaws, which, while indicating sloppiness, are not catastrophic. Others are serious foundational errors and for that reason are considerably more egregious. Both sets, when aggregated, point in the direction of an absence of serious research and in its stead a superficial scan.
This is all the more regrettable because in spite of being asked by some of its membership to intervene in the Boston College Subpoena case, ‘the SAA Council believes that it is inappropriate for the Society to take a formal position on the case or on the concept of “archival privilege” at this time.’ While ultimately any strategic initiative is a matter for the Council, it would be an intellectual travesty if this disappointing decision by the Council is based on specious reasoning.
While the interpretation of the facts is a matter for the authors who, in the interests of intellectual autonomy must have latitude to interpret, it is not within the gift of the authors to designate as facts matters that have no demonstrable basis in fact.
Moving from surface to foundational, an itemisation of the errors that appear in the SAA Council statement should suffice to indicate something other than best practice.
- The introductory paragraph of the background section confuses the donor agreement with the contract between Project Director Ed Moloney and Boston College, and suggests it is unclear whether Boston College had signed it or not. The Moloney contract was signed, not ‘apparently’ signed, by Burns Librarian Robert O’Neill, as were the donor agreements given to each interviewee. O’Neill refers to having signed the Moloney contract in his affidavit; his signature is clearly visible in the copy attached to his affidavit and submitted to the court:
“I signed an agreement with Ed Moloney to serve as Project Director for the Belfast Project dated January 31, 2001. A true and complete copy of the January 31, 2001, Agreement is annexed to this statement and marked O’Neill Attachment1.” (Paragraph 5, page 2, Affidavit of Robert K. O’Neill)
- The “Disappeared Commission” is not part of the Police Service of Northern Ireland (PSNI). It is an independent entity that has won the legal right not to divulge to the PSNI or any other state agency information about the sources that make information available to it. http://bostoncollegesubpoena.wordpress.com/supporting-documents/concerns-expressed-by-the-iclvr/
- The only disappearance in December 1972 was that of Mrs Jean McConville. There were not eight others disappeared that month. (For background on the McConville investigation see: http://bostoncollegesubpoena.wordpress.com/supporting-documents/jean-mcconville-investigation/)
- I was at no time subpoenaed.
- At no time did I refuse to turn over material in my possession for the simple reason that I had no material in my possession. What I refused to do, as a matter of academic and journalistic principle, was assist Boston College on the eve of court, to filter the material in its possession for anything that might be responsive to the subpoenas. To the extent that I am an archivist/researcher, I am most definitely not a gatherer of evidence for law enforcement agencies.
- Neither I nor Moloney on September 1, 2011 asked the court to quash the subpoenas. We asked for the right to intervene in the case as we had little faith in the efforts being made by Boston College. Our Motion to Intervene and our Complaint for Declaratory Judgement, Writ of Mandamus and Injunctive Relief are available both online.
- No subpoenas have been issued against Ed Moloney. Two subpoenas have been issued, in each case against Boston College. In December our request to intervene was denied, not a request to quash which we had not been afforded an opportunity to make.
- The subsidiary agreement was not drawn up between the ‘scholars undertaking the project and the interviewees.’ It was an agreement between Boston College and the interviewees, written up by Boston College on Boston College headed paper, and signed by the Burns Librarian at Boston College. An example of the agreement form given to all interviewees is available online: http://bostoncollegesubpoena.wordpress.com/exhibits/respondent-hughes-agreement/
- Boston College staff did not merely either fail to ‘review or reviewed insufficiently the agreements drawn up for participants’ signatures.’ Boston College drew up the agreements for the participants’ signatures. This is a matter of public record for which there is an easily accessible paper trail, and which Ed Moloney has thoroughly addressed in his response to the SAA.
- The researchers at no time ‘made additional written promises to participants in the oral history project that went beyond those offered by Boston College, but project staff did not disclose to participants that these additional assurances were made on behalf of the project staff and did not represent the position of Boston College … These additional assurances apparently were founded in the researchers’ belief in a legal theory of “archival privilege” previously rejected by a federal court.’
This last assertion on the part of the SAA Council is so demonstrably false and misleading that only with extreme reluctance could it be accepted as something issued in good faith. Not a scintilla of evidence for such a bald statement has been forthcoming. Where is the evidence that the researchers ever gave ‘additional assurances’ to the participants?
In a matter considered so important that the SAA Council thought it worthy of public comment, it is striking that so little effort was put into getting it right. The Council simply packaged a falsehood based on lazy rather than excellent research, and passed it off as factual. It is not difficult to conceive of a corollary whereby the researchers would be excoriated and Boston College exonerated. Is the instinct to protect the institution so strong that it cannot resist the tendency to close ranks and displace culpability onto those considered least able to fight their corner?
There was no additional written agreement made available to the interviewees. What appeared in the Hughes [donor] Agreement, minus Mr Hughes’ own amendments, was the sole template for the donor agreement that was used in every case. It was inscribed on Boston College headed paper and signed off on by the Burns Librarian, Professor Robert O’Neill. Again, from O’Neill’s affidavit, paragraphs 6 and 7:
“6. Each person interviewed for the Belfast Project was offered a donation agreement directing that his or her interview materials be deposited in the Burns Library at Boston College. If the interviewee agreed to the donation, the donation form reassured the interviewee that no part of the interviews would be released without the interviewee’s approval or until the interviewee died, whichever came first.
7. A uniform donation agreement for Belfast Project interview materials was offered to all interviewees. It was the same as the form signed by one of the interviewees, the late Brendan Hughes, that is annexed to this statement as O’Neill Attachment 2, except that the Hughes donation form has additional handwritten terms that he requested.”
There is nothing whatsoever that would lend itself to even a speculative assumption, let alone the firm conclusions arrived at by the SAA Council, that the researchers ever at any point entered into a side agreement with the interviewees or expanded the terms of confidentiality independent of Boston College. The researchers gave to the participants only what Boston College drew up and approved. Neither a word more nor a word less; no side agreements or undertakings.
Much of the skewed thrust of the SAA Council statement aims at establishing the case that Boston College, because it mentioned in the agreement between it and project director Ed Moloney that the project was subject to ‘the extent of American law’, should somehow be absolved of the lion’s share of responsibility. And so we have this:
Boston College officials appear to have been clear, when an agreement initially was reached to undertake this project and house the resulting oral histories in the college library, that all promises of confidentiality made to interviewees were subject to U.S. law.
I first take issue with the claim that “Boston College officials appear to have been clear… that … promises …were subject to U.S. law”; up until the arrival of the subpoenas, Boston College were very clear that the confidentiality of the archive would be protected, by Boston College, in all circumstances. For example:
- In the preface to Voices from the Grave, Hachey and O’Neill wrote,
“Boston College is contractually committed to sequestering the taped transcriptions unless otherwise given a full release, in writing, by the interviewees, or until the demise of the latter.”
- In a 2010 interview with the Irish News, Hachey said,
“They [interviewees] also needed to know that we would honour an agreement not to publish any of their testimony until death. The only caveat is that if they give their consent before their death in writing, that would clear us legally.”
- He also said, in an interview with the News Letter,
“We began this oral history on the understanding that the documents would be sequestered and embargoed in the archives at the Burns Library here in Boston. That seemed to be very reassuring to a number of people.”
- In a 2011 article written by Editor Sean Smith for Boston College’s in-house publication, The Boston College Chronicle, for which the sources were Hachey and O’Neill and neither myself nor Ed Moloney, Boston College’s position was very clear:
“[Brendan Hughes and David Ervine, subjects of Voices from the Grave], along with nearly three dozen other former combatants interviewed for the project, were guaranteed that no interview material would be used without their consent or until after their death. Ervine died in 2007, Hughes in 2008.”
Even after the arrival of the first subpoena, Boston College remained clear:
- “There was information that was clearly granted on the condition of confidentiality, with the expectation that it would provide a benefit for posterity, a historical narrative of the Troubles. That was our sole role in getting involved in the project, continuing our effort at peace and reconciliation in Northern Ireland, being a repository for these tapes of great historical value.” – Jack Dunn, 25 May 2011
- “The assurances of confidentiality at the start and during the interview process were subsequently documented when the interviews were concluded. Each interviewee was given a form to donate his or her interview materials to the Burns Library at Boston College on the express condition that the materials would not be disclosed, absent the interviewee’s permission, until after his or her death.” – MOTION OF TRUSTEES OF BOSTON COLLEGE TO QUASH SUBPOENAS
- “I want you to know and you can quote me on this, any one of you, because I don’t think the president (Fr Leahy) would mind me divulging this and he would certainly confirm it, but he said: ‘I want you to understand,’ he wasn’t talking to me specifically but to my two colleagues (Jack Dunn & Nora Fields), ‘I want you to understand that we are not going to allow interviewers or interviewees to be compromised in this.’” – Professor Thomas Hachey, May 16th 2011
- “We aren’t letting anybody into (the archive) and they are not touching it. That’s going to be the bottom line”. – Professor Thomas Hachey, May 16th, 2011
- “B.C. is firmly and unconditionally committed to respecting the letter and intent of what is a contractual agreement never to release any of the material to anyone unless given permission in writing (notarized) beforehand by the participant, or until the demise of a participant.” – Professor Thomas Hachey, 23 May, 2010
All of these quotes and more are available online: http://bostoncollegesubpoena.wordpress.com/supporting-documents/boston-college-confidentiality-public-references-to-agreement/
In addition, it is my definite understanding that the donor agreement/Hughes Agreement issued to the participants was predicated on the initial agreement [the Moloney contract] which contained the phrase to ‘the extent of American law’.
If the donor agreement produced by Boston College was in any way inconsistent with ‘the extent of American law’, why was it codified by the College and issued as an informed consent form to the participants?
Had US law not have enabled the terms of the donor agreement, then it was incumbent on BC to state that ultimate power of release lay with the interviewees ‘except as required by law, subpoena or court order’. BC, having knowingly stated outside the donor agreement that the conditions of the interviews were to the extent allowed by American law, must have issued a donor agreement it believed consistent with US law, and not contrary to it.
Professor John Brewer, whom I remain fundamentally at odds with in relation to the issue of where culpability resides on the Boston College case, does make a valid point when he says that “informed-consent forms always explain that confidentiality will be maintained only to the full extent provided under the law”.
In my response to Professor Brewer I made the point that, ‘Always … except when the forms are issued by Boston College.’
Boston College has yet to explain what many observers feel is a discrepancy between its own two agreements.
Other issues in the SAA paper are matters of interpretation arguably underpinned by asymmetrical reasoning:
Boston College officials failed, however, to exercise ongoing diligence over the project … Such review should have led Boston College staff to draw this matter to the attention of the project staff in order to utilize appropriate language in the agreements regarding confidentiality.
This begins to sound like an attempt to create a shield which protects the institution. It suggests that Boston College at worst adopted a hands-off approach. Because the SAA Council failed to do the research that its ultimate deliberations should have been underpinned by, it is incapable of following the linear logic that would easily permit it to conclude that Boston College did not leave it to the researchers in the field to reach agreement with the interviewees and that therefore the failing of the College is not one of post facto inadequate supervision but one that was built into the design of the project. There was no distance between Boston College staff and the donor agreements, no mediators acting with latitude, through which the College’s intent was misinterpreted.
On the issue of Ed Moloney’s book, Voices From the Grave, the SAA Council statement fails to follow through on the logic and shies away from asking the very obvious question: if Boston College, which gave its imprimatur to the book, genuinely believed that the extent of American law restricted rather than enabled confidentiality, was it not imperative on the College prior to the publication of the book to warn Moloney then?
So the flawed reasoning underpinning the SAA Council’s approach to the matter naturally produces a conclusion consistent with the errors in the research:
Given these circumstances—that the project staff, for whatever reason, chose to ignore existing case law and assure participants that a greater level of confidentiality could be given the oral histories than could reasonably be assumed, and that Boston College failed to carefully review the legal agreements signed by participants for conformity with the promises about confidentiality made by the College and to insist that those promises be represented in writing—the Government Affairs Working Group suggests that SAA take no position on the case at hand.
Distilled down it simply means the GAWG suggested to the SAA Council that it do nothing because the GAWG got it wrong and was incapable of arriving at a more balanced conclusion.
The SAA Council, having based its non interventionist recommendation on deeply flawed research, is ethically required to make right what it did wrong. There is so much at stake in this case for archivists that to allow an adverse outcome to result from badly informed inaction, would be to do irreparable harm to the art/practice of archiving and research.
The SAA Council, now that the shortcomings underpinning its ultimate decision have been brought to its attention, could do worse than retrace its steps, review its own research and revise its strategic position in relation to the ongoing legal battle by positively responding to the requests for intervention made by some of its membership.
Louis XVI once said, ‘surely the archbishop of Paris must at least believe in God.’ The Society of American Archivists must at least believe in the right to protect archives.