The Belfast Project and the Dangers of the Subpoena Power
Federal Bar Council Quarterly
Sep/Oct/Nov 2014, Vol XXII No 1
By James L. Bernard and Nathan H. Stopper
13 Dec 2014
In 2001, an ambitious project by Boston College (“BC”) to document the oral history of a brutal conflict began. Under the auspices of BC, a librarian, a journalist, and a former Irish Republican Army (“IRA”) paramilitant began interviewing individuals involved in the decades-long conflict in Northern Ireland. In what became known as the Belfast Project (the “Project”), they conducted candid interviews under the cloak of anonymity with 40 former members of the IRA and its rival Protestant paramilitary groups, along with one former law enforcement officer. By all appearances, this was a well-intentioned and noble project to explore in confidence a dark period in history, and to try to discover what lessons could be learned when all involved were able to speak freely and openly about what happened. Things did not turn out as planned. Once authorities in the United Kingdom learned of the Project, they tried to obtain the information that had been shared in confidence. This article explores what happened in the U.S. courts regarding those efforts, and lessons to be learned from the ensuing legal battle.
The interviews were nominally “donations” made by the subjects to BC, and each interviewee signed an “Agreement for Donation” that restricted access to the tapes and transcripts of their interviews until after their deaths, absent the subject’s written consent.1 An additional agreement between the Project’s director, Ed Moloney, and BC provided that “[e]ach interviewee is to be given a contract guaranteeing to the extent American law allows” strict safeguards to prevent the unauthorized disclosure of an interview.2
Notwithstanding these confidentiality agreements, in 2011 BC was served with two sets of subpoenas (the “Belfast Subpoenas”) by a commissioner appointed pursuant to 18 U.S.C. § 35123 and a mutual legal assistance treaty between the United States and the United Kingdom (the “US-UK MLAT”).4 The first subpoena sought materials from the interviews of former IRA members Dolours Price and Brendan Hughes, while the second requested all information obtained by the Project regarding the abduction and murder of Jean McConville, a mother of 10 “disappeared” by the IRA in 1972. With the exception of the materials related to Mr. Hughes,5 BC sought to have both subpoenas quashed in the U.S. District Court for the District of Massachusetts.
Mr. Moloney and the former IRA paramilitant, Anthony McIntyre, attempted to intervene in the lawsuit filed by BC, and separately filed a similar civil complaint seeking to block the production of these materials. The court, however, ordered the production of all materials responsive to the first subpoena and 85 interviews responsive to the second.6 While BC did not appeal the order regarding the first subpoena, Messrs. Moloney and McIntyre appealed to the First Circuit.7 The circuit court affirmed the district court’s decision and ordered the production of materials from the interviews of Ms. Price, “who had admitted to being involved in the murder and ‘disappearances’ of four persons targeted by the IRA, including Jean McConville.”8 BC subsequently filed an appeal regarding the second subpoena, and the First Circuit overturned the denial of the motion to quash as to 74 of the 85 interviews, finding that they were not responsive to the subpoena.9 Thus, after two separate appeals, BC was ordered to produce both Ms. Price’s interview materials and the materials from 11 interviews relevant to Ms. McConville’s “disappearance.”10
The production of even these materials had profound consequences as they led to the recent arrest of Gerry Adams, the president of Sinn Féin and a current member of the Irish Parliament. We explore further below both the scope of subpoena power as relevant to this proceeding and the accompanying statutory protections, as well as additional defenses with particular relevance to the Project: the reporter and academic privilege, and the self-critical analysis privilege.
The Power to Quash
Although the Federal Rules of Civil Procedure grant parties broad subpoena power, they also impose certain limitations. Among such limitations, a court “must quash or modify a subpoena that requires disclosure of privileged or other protected matter, if no exception or waiver applies.”11 However, “the mere fact that a communication was made in express confidence … does not create a privilege.”12
Because the Belfast Subpoenas were issued under 18 U.S.C. § 3512 and the US-UK MLAT, a major threshold issue was whether, because the applicable treaty gives the Attorney General “exclusive prerogative in initiating proceedings[,] federal courts have discretion to quash a subpoena in this context.”13 While the government argued that “the Attorney General’s exclusive prerogative … [barred] judicial oversight of the subpoena enforcement process,” the First Circuit held that it had jurisdiction because “the enforcement of subpoenas is an inherent judicial function which … cannot be constitutionally divested from the courts of the United States.”14 Thus, resolution of the appeals turned on whether the appellants were able to assert a recognized privilege.
The Reporter’s Privilege
The primary substantive issue raised in the Belfast Project litigation was the protection afforded by the First Amendment to academics.15 Because such protection closely mirrors the protection enjoyed by reporters, a review of the reporter’s privilege is helpful.
The seminal case addressing this privilege is the Supreme Court’s decision in Branzburg v. Hayes, a plurality opinion unevenly interpreted by the circuits. There, and briefly summarized, the Court held that even where revealing materials sought by a grand jury subpoena would break a reporter’s promise of confidentiality, the First Amendment does not protect the reporter from having to comply with the subpoena.16 Taking particular offense to the suggestion that the Constitution protected promises made to criminals that could undermine law enforcement, the Court reasoned that “we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”17
Despite the Supreme Court’s reluctance to recognize such a privilege, subsequent decisions in lower courts have approved of some protections for subpoenaed reporters when the facts are distinguishable from Branzburg, especially in the context of civil litigation.18 Building on Justice Powell’s Branzburg concurrence, courts have held that “a qualified reporter’s privilege under the First Amendment should be readily available in civil cases,” and that to determine whether the privilege applies, courts should weigh “the public interest in protecting the reporter’s sources against the private interest in compelling disclosure.”19 Other courts have gone beyond the civil context, stating that there is “no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter’s interest in confidentiality should yield to the moving party’s need for probative evidence.”20
Importantly for the Belfast Project litigation, the First Circuit has held that the Constitution offers some protection for reporters’ confidential sources.21 In In re Special Proceedings, it held that “the disclosure of a reporter’s confidential sources may not be compelled unless directly relevant to a nonfrivolous claim or inquiry undertaken in good faith; and disclosure may be denied where the same information is readily available from a less sensitive source.”22 The First Circuit therefore requires “heightened sensitivity” to First Amendment concerns in civil litigation.23
The existence of a reporter’s privilege, even when limited to civil litigation, is not unanimously accepted. The Seventh Circuit has held that while “[a] large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege … courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas.”24 Similarly, the Sixth Circuit has held that Justice Powell’s Branzburg concurrence is consistent with the majority opinion and creates no qualified privilege for the media.
Thus, while reporters in federal litigation may enjoy some protection for withholding subpoenaed information, such protection requires a favorable outcome of a balancing test whose existence and application diverge widely by circuit.25
The Academic Research Privilege
One of the primary concerns of the Branzburg plurality was that, because “almost any author could assert that he contributes to the flow of information to the public,” recognizing a reporter’s privilege for protecting confidential sources would force courts to define the scope of those covered by such a privilege, including whether it extended to academics.26 The Supreme Court subsequently declined to recognize an academic privilege in University of Pennsylvania v. E.E.O.C., an employment discrimination case, where it held that the First Amendment’s protection of academic freedom did not permit educational institutions to withhold subpoenaed confidential peer review materials relating to the tenure process.27
Nonetheless, as many courts recognized some form of a reporter’s privilege, they have also defined its scope to include academia. In one of the early cases addressing the coverage afforded by the journalist’s privilege, the Second Circuit held in von Bulow by Auersperg v. von Bulow that an individual claiming the privilege “must demonstrate … the intent to use material sought to disseminate information to the public,” but need not necessarily be a traditional journalist.28 Citing von Bulow, among other cases, the First Circuit endorsed the reach of a privilege beyond journalists in Cusumano v. Microsoft Corp., where it noted that “several of our sister circuits have held that the medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work.”29 The Cusumano court then held that “[a]cademicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists.”30
Despite the First Circuit’s recognition of this academic privilege, the courts in both Belfast Project appeals held that because the litigation involved underlying criminal proceedings, Branzburg’s analysis controlled their disposition.31 Thus, in the first appeal, the First Circuit held that even though compliance with the subpoenas could have some chilling effect, no academic privilege applied because Branzburg compelled the conclusion that the “choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”32 Similarly, in the second appeal, where BC argued that a heightened sensitivity standard of relevancy should have applied, the court held that under Branzburg, “the public’s need for information relevant to a bona fide criminal investigation precludes the recognition of a First Amendment privilege not available to the ordinary citizen,” and ordered the production of all relevant materials.33 The First Circuit was clear that “[t]he choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”34
The Self-Critical Analysis Doctrine
An additional, although more tenuous, argument for contesting the Belfast Subpoenas would have been the much-maligned self-critical analysis doctrine. Although frequently cited by parties seeking to protect information, “a majority of the Circuits have refused to recognize or apply the privilege.”35 Originally described in Bredice v. Doctors Hospital,36 the privilege’s contours are generally agreed upon: first, “the information [at issue] must result from a critical self-analysis undertaken by the party seeking protection; [second] the public must have a strong interest in preserving the free flow of the type of information sought; [and third] the information must be of the type whose flow would be curtailed if discovery were allowed.”37 Courts have also applied “the general proviso that no document will be accorded a privilege unless it was prepared with the expectation that it would be kept confidential, and has in fact been kept confidential.”38
In Bredice, a plaintiff in a medical malpractice suit sought to discover information from a hospital’s professional staff committee meetings. The court held that because the meetings were “not a part of current patient care, but [were] retrospective with the purpose of self-improvement, [they were entitled] to a qualified privilege on the basis of this overwhelming public interest.”39 The court further elaborated that “the public interest may be a reason for not permitting inquiry into particular matters by discovery,” and was especially concerned that the committee’s value would be destroyed if its proceedings were discoverable.40
Courts have subsequently been skeptical of the self-critical analysis privilege, but have frequently refrained from disavowing it, instead finding that specific facts in a particular litigation preclude its application. In Dowling, for example, the Ninth Circuit held that even if the privilege existed, pre-accident safety reviews conducted on a ship were not subject to it because holding such reviews discoverable would not create a “chilling effect” on the candid assessment of safety issues.41 Likewise, in In re Currency Conversion Fee, the court held that while “the availability of the self-critical analysis privilege is an open question in [the Second] Circuit,” it did not protect management control studies and internal audit reports.42 In Ganious v. Apache Clearwater Operations, Inc., however, the court disclaimed the privilege more explicitly, stating that “all of the courts in [the Fifth] Circuit confronting the issue have declined to find that the self-critical analysis privilege exists, even in the instance of a post-accident investigation.”43
Although not cited by the parties at any stage of the Belfast Project litigation, the Project satisfied some of the privilege’s elements. The interviews were certainly undertaken with the expectation of confidentiality, and the flow of sensitive information would undoubtedly cease if the subjects knew they were discoverable. Further, the public may have had an interest in the continuation of the Project, although likely not rising to the level of the hospital meetings at issue in Berdice. Most importantly, however, the interviews were not conducted for the express purpose of self-improvement, and lacking such a purpose, the privilege would most likely not have applied.
Individuals must proceed with caution when gathering information pursuant to confidentiality agreements. We imagine that everyone involved in the Belfast Project thought the contractual provisions of confidentiality were sufficient. The stakes, after all, were extremely high as individuals would be discussing criminal conduct, and therefore the interviews would not have taken place unless all involved believed those provisions would provide adequate protection. The lesson learned here, however, is that contractual obligations of confidentiality are sometimes insufficient. And here, that vulnerability came from abroad, in the form of a subpoena through a U.S. Commissioner providing assistance in a criminal matter to a foreign government. Imposing the benefit of hindsight on those involved seems harsh; it is hard to blame them for failing to assess the likelihood that a U.S. Commissioner would be appointed to assist a foreign government in a criminal investigation. But after this litigation, it seems clear that even assuming the First Amendment offers some protection to academics (or reporters), information gathered under contractual provisions of confidentiality will nonetheless be highly vulnerable to subpoena, especially for law enforcement purposes. BC learned this lesson the hard way: it recently announced that it will return the original recordings from the Belfast Project to any interviewee who requests them and will not preserve any additional copies or transcripts.44 That is a shame for the pursuit of academic research projects and good faith efforts to explore dark moments in history with candor, but the First Circuit’s decisions make clear that contractual promises of confidentiality must yield to law enforcement requests for information.
- In re Request from United Kingdom Pursuant to Treaty Between Gov’t of U.S. & Gov’t of United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, 685 F.3d 1, 5 (1st Cir. 2012) [hereinafter “Moloney”], cert. denied, 133 S. Ct. 1796 (2013).
- Id. Importantly, “[n]o lawyers vetted the wording of [the underlying agreement for participants], and no one at BC other than [the head librarian and the head of Irish Programs at BC] reviewed Mr. Moloney’s contract or the one drawn up for interviewees.” Beth McMurtrie, Secrets From Belfast, The Chronicle of Higher Education, Jan. 26, 2014, at 4, available at http://chronicle.com/article/Secrets-from-Belfast/144059/.
- Section 3512 permits the government to seek court orders and the appointment of a commissioner to collect evidence to effectuate a request from a foreign government for assistance in the investigation or prosecution of criminal matters.
- Moloney. 685 F.3d at 3.
- Because Mr. Hughes was deceased, as per his Agreement for Donation, BC was no longer bound by any contractual confidentiality obligations regarding his interviews.
- In re Request from the United Kingdom Pursuant to the Treaty Between the Gov’t of the U.S. & the Gov’t of the United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, MISC. 11-91078-WGY, 2012 WL 194432 (D. Mass. Jan. 20, 2012).
- See Moloney, 685 F.3d at 4.
- Id. at 5.
- Id. at 19; In re Request from the United Kingdom Pursuant to the Treaty between the Gov’t of the U.S. & the Gov’t of the United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, 718 F.3d 13, 27 (1st Cir. 2013) [hereinafter “Boston College”].
- See id.; Moloney, 685 F.3d at 4.
- Id. 45(d)(3)(A)(iii).
- Branzburg v. Hayes, 408 U.S. 665, 682 n.21 (1972).
- Boston College, 718 F.3d at 23.
- See Moloney, 685 F.3d at 16; Boston College, 718 F.3d at 20.
- 408 U.S. at 690-91; see also Moloney, 685 F.3d at 16.
- Branzburg, 408 U.S. at 690-91.
- See Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981) (stating that “every other circuit that has considered the question has ruled that a [reporter’s] privilege should be readily available in civil cases, and that a balancing approach should be applied”). See also, e.g., In re Grand Jury Proceedings, 5 F.3d 397, 400 (9th Cir. 1993) (holding that no privilege applied when the “circumstances of the case fall squarely within those of Branzburg”).
- See, e.g., Grand Jury Proceedings, 5 F.3d at 400.
- United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983). See also, e.g., United States v. Cuthbertson, 630 F.2d 139, 146-47 (3rd Cir. 1980).
- Cusumano v. Microsoft Corp., 162 F.3d 708, 716 (1st Cir. 1998); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st Cir. 1980).
- In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004).
- McKevitt v. Pallasch, 339 F.3d 530, 532-33 (7th Cir. 2003). See also In re Grand Jury Proceedings, 810 F.2d 580, 583-84 (6th Cir. 1987) (rejecting the existence of a reporter’s privilege).
- As of 2011, 40 states had enacted laws protecting reporters from subpoenas. See Aaron Mackey, Number of states with shield law climbs to 40, 35 The News Media & the Law 3, 27 (Summer 2011), available at http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2011/number-states-shield-law-cl. However, the federal law of privilege applies in federal cases involving state law claims. See, e.g., Virmani v. Novant Health Inc., 259 F.3d 284, 287 n.3 (4th Cir. 2001).
- Branzburg, 408 U.S. at 703.
- 493 U.S. 182 , 199-200. This case is distinguishable from Branzburg and the Belfast Project litigation for at least two important reasons: first, Univ. of Penn. was reluctant to recognize a privilege where Congress had extended the relevant statute to educational institutions and provided for broad subpoena powers, but chose not to create a privilege for peer reviewed documents; and second, Univ. of Penn. found that the asserted infringement of First Amendment rights was “extremely attenuated,” because it relied upon a long chain of causation to claim that disclosure affected academic freedom. Id. at 189, 199-200.
- 811 F.2d 136, 147 (2d Cir. 1987) (“On rare occasions the journalist’s privilege has been invoked successfully by persons who are not journalists in the traditional sense of that term”).
- 162 F.3d at 714.
- Moloney, 685 F.3d at 16; Boston College, 718 F.3d at 24.
- Moloney, 685 F.3d at 19.
- Boston College, 718 F.3d at 24.
- Moloney, 685 F.3d at 19.
- Davis v. Kraft Foods N. Am., CIV A 03-6060, 2006 WL 3486461, at *2 (E.D. Pa. Dec. 1, 2006).
- 50 F.R.D. 249 (D. D.C. 1970).
- Dowling v. Am. Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir. 1992) (citing Note, The Privilege of Self–Critical Analysis, 96 Harv. L. Rev. 1083, 1086 (1983)).
- Dowling, 971 F.2d at 426 (citing Peterson v. Chesapeake & Ohio Ry., 112 F.R.D. 360, 363 (W.D. Mich. 1986); Westmoreland v. CBS, Inc., 97 F.R.D. 703, 706 (S.D.N.Y. 1983)).
- Bredice, 50 F.R.D. at 251.
- Dowling, 971 F.2d at 426.
- In re Currency Conversion Fee, MDL 1409, 2003 WL 22389169, at *4 (S.D.N.Y. Oct. 21, 2003). But see Trezza v. Hartford, Inc., 98 CIV. 2205 (MBMKNF), 1999 WL 511673, at *3 (S.D.N.Y. July 20, 1999) (holding that self-critical analysis privilege protected voluntary internal studies regarding employment discrimination).
- CRIM.A. 98-207, 2004 WL 287366, at *2 (E.D. La. Feb. 11, 2004).
- Peter Schworm, BC will return its interviews on Ireland, The Boston Globe, May 6, 2014, available at http://www.bostonglobe.com/metro/2014/05/06/boston-college-says-interviewees-northern-ireland-troubles-oral-history-project-can-get-their-tapes-back/cRgXf2Th3My0H3zqOq1q6H/story.html.