IRA subpoenas affirmed by 1st Circuit

IRA subpoenas affirmed by 1st Circuit<a title="Permanent Link: IRA subpoenas affirmed by 1st Circuit
by Tom Egan
Massachusetts Lawyers Weekly
July 6th, 2012

The 1st U.S. Circuit Court of Appeals has upheld a federal judge’s refusal to quash subpoenas seeking oral history recordings and associated documentation from interviews that Boston College researchers had conducted with two former members of the Irish Republican Army.

Two appellants, Ed Moloney and Anthony McIntyre, argued that production of the subpoenaed interviews would be contrary to the confidentiality they say they promised to the interviewees.

But the 1st Circuit found such an argument foreclosed by U.S. Supreme Court precedent holding that the fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality is not by itself a legally cognizable First Amendment or common law injury.

“To be clear, even if participants had been made aware of the limits of any representation about non-disclosure, Moloney and McIntyre had no First Amendment basis to challenge the subpoenas,” Chief Judge Sandra L. Lynch wrote for the majority. “Appellants simply have no constitutional claim.”

Judge Juan R. Torruella “reluctantly” concurred in the judgment.

“It is one thing to say that the high court has considered competing interests and determined that information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings,” he commented. “It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants ‘a measure of protection … in order not to undermine their ability to gather and disseminate information.”

The 46-page decision is In Re: Request From The United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price, Lawyers Weekly No. 01-166-12.