College has fought to deny access to interview materials
January 19th, 2012
THOMAS E HACHEY & DR ROBERT K O’NEILL
OPINION: INTERVIEWEES IN Boston College’s Belfast Project oral history undertaking understood that divulging their participation could potentially compromise the underlying premise that such testimony would remain undisclosed until the time of their demise.
That important need for discretion was honoured by all surviving participants, with the notable exception of one, Dolours Price, who chose publicly to volunteer her involvement, while making some provocative statements. Given how the details she freely disclosed entailed references to a still unresolved crime, the PSNI or some arm of British law enforcement sought to employ an enforceable Anglo- American legal assistance treaty to seek discovery of that material through the issuance of a subpoena by a US federal court.
Despite the fact that the subpoena was in no small part a direct result of this disclosure, and despite Price’s refusal to assist in its efforts, Boston College promptly sought to protect that participant from the consequence of her disclosures by moving to quash the subpoena that sought access to the Price interview materials.
The subpoena also demanded the delivery of the Brendan Hughes interviews, probably because they were thought to contain information related to some of the Price account. The demand for the Hughes material was curious as he was deceased and had previously assented to the posthumous access to his file by those who would use the oral history. It was therefore available for the asking by any creditable researcher or government official.
Presumably at the behest of British law enforcement, a subsequent subpoena was issued in August targeting any materials among the Belfast Project interviews that made reference to the abduction or death of Jean McConville, a widowed mother of 10, and which Price has apparently indicated to a reporter she has some knowledge of.
Boston College again promptly filed a motion to quash. Last month, the court did not agree to quash the subpoenas, but did accept Boston College’s request to fashion a procedure that would both honour the obligations of the US under its treaty with the UK, and recognise the significant interests of Boston College in protecting the integrity of its oral history project.
Despite the US government’s arguments that the court had no discretion in the face of an international treaty, Boston College’s arguments in opposition to the subpoenas succeeded in convincing the court to engage in a “balancing test” to weigh the competing interests of law enforcement against the academy’s interests in maintaining the confidentiality of academic research, through an in camera review of the contested materials.
Thus, the court has articulated a legal and procedural basis for possibly denying the disclosure of the materials. No one knows more about the contents of the interviews of former IRA members than the interviewer himself, Anthony McIntyre, who declined the court’s request to disclose which of the interviews were potentially responsive, thereby requiring Boston College to provide all the IRA interviews to the court for its review.
As of this writing, the court has not acceded to the government’s request that all the responsive interviews be turned over to British law enforcement.
Upon its initial in camera review, the court, which has access to sealed information about the underlying criminal investigation that Boston College does not have, ruled that the Price materials had to be turned over given their relevance to the investigation.
The court has not ruled on the remaining interviews in question, and our hope is that these remaining materials under the judge’s review will not have to be released. That is one reason why Boston College chose not to appeal the court’s decision, deeming this option to be the better course to protect the interests of interviewees and to help preserve the court’s recognition of the important interests in protecting academic research more broadly than had been previously recognised in law.
There have been people who have faulted Boston College for not adopting this or that particular stratagem, and we appreciate how expressions of concern have sometimes been prompted by either an honest difference of opinion over how best to serve all concerned, or simply by the failure to understand the need to respect American law while still seeking the desired outcome.
But the suggestion by former project director Ed Moloney that Boston College, defying the court, should pre-emptively burn the transcripts is an example of just how unhinged the dialogue has become in some quarters.
Universities do not engage in either the burning of books or in the torching of transcripts. Rather, we have engaged in legal proceedings in the hope of securing a favourable outcome.
That is our plan, and we hope that it will prove successful for the sake of the peace and reconciliation process in Northern Ireland, and the enterprise of oral history in the United States and abroad.
Thomas E Hachey, university professor of history and executive director – Center for Irish Programs; Dr Robert K O’Neill Burns Librarian, Burns Library, Boston College.