A legal battle over oral-history records housed at Boston College has cast light on just how little legal weight many researchers’ pledges of confidentiality to their subjects actually have.
As a federal court weighs whether to let the federal government seize, and hand over to British authorities, the college’s records of confidential interviews with participants in the conflict in Northern Ireland, experts on law related to academic freedom are asking not whether the records can be kept secret, but whether the researchers erred in saying they could.
Although the dispute is unusual in that it involves an international treaty between the United States and Britain, leading oral historians say a court decision ordering Boston College to turn over the records could undermine many other such studies, by prompting potential interview subjects to refuse involvement or censor themselves.
“Everyone is afraid that it will have a chilling effect,” Mary Larson, president of the Oral History Association, said in an interview this week.
John A. Neuenschwander, who is a professor emeritus of history at Carthage College, in Wisconsin, and the author of A Guide to Oral History and the Law, said the case raises the question of “whether there are any legal protections for academic researchers who offer confidentiality.” A court order in favor of the government’s position, he said, could be especially damaging to the growing body of oral history focused on very recent events, because those interviewed have more reason to fear repercussions than do those asked to recall events from decades ago.
Already, the case has threatened Boston College’s ability to retain any of the records from Northern Ireland, gathered as part of an oral-history research effort known as the Belfast Project and housed at its John J. Burns Library. In a statement issued this week, Edmund Moloney, a former director of the Belfast Project, and two of the other researchers involved, Anthony McIntyre and Wilson McArthur, said they strongly believed the record archive must be shut down and the interviews “either returned or shredded” because Boston College is no longer a safe place for them.
The Belfast Telegraph reported this week that William “Plum” Smith, a prominent member of one of Northern Ireland’s “loyalist” (Protestant) paramilitary forces, said he had undertaken legal action to force the college to return records of the interviews he gave, even though the British government is not seeking them. “I am concerned about the principle,” he said, because the college “cannot guarantee the basis on which the interviews were given.”
A second loyalist leader, Winston “Winkie” Rea, told the newspaper he also wanted his interview records returned, and expected other study participants to feel the same if Mr. Smith’s litigation is successful.
A Troubled History
According to court records, when Boston College’s trustees hired Mr. Moloney, an author and a journalist, to undertake the project in 2001, they asked him to contractually agree to maintain the anonymity of his subjects. Those interviewed—who formerly belonged to either the Provisional Irish Republican Army, a Roman Catholic paramilitary force, or Northern Ireland’s Protestant paramilitary groups—were to be guaranteed confidentiality to the extent allowed by American law.
Even before the research began, however, Mr. Moloney was cautioned by a Burns Library administrator that it could not guarantee the confidentiality of any interviews housed there in the face of a court order.
The college later told a federal judge, however, that the confidentiality assurances made to interviewees were absolute. The researchers and subjects had agreed that access to each interviewee’s records would be restricted until after his or her death, except if the interviewee requested otherwise.
Mr. McIntyre stated in an affidavit that he would not have become involved as a researcher if he had known the confidentiality assurances could be challenged.
The content of some interviews subsequently became widely known. Mr. Moloney used material from two deceased interviewees in a 2010 book, Voices From the Grave, and a related documentary. Newspapers in Northern Ireland interviewed one participant in the Belfast Project, Dolours Price, a former member of the Provisional Irish Republican Army, about the 1972 murder of Jean McConville, a Belfast mother of 10 killed by the Provisional IRA as a suspected informant.
Last spring, federal prosecutors, acting at the behest of the British government, subpoenaed Boston College for the records of Ms. Price and a second Provisional Army member, Brendan Hughes, as well as any interviews dealing with the kidnapping and murder of Ms. McConville.
The college turned over the interviews with Mr. Hughes, who died in 2008, but it fought the subpoena demanding the interviews with Ms. Price. In a decision issued on December 16, Judge William G. Young, of the U.S. District Court in Boston, announced his plan to review the records in confidence and decide which ones to hand over, in an attempt to balance academic freedom and the federal government’s interests.
In a subsequent ruling on December 27, Judge Young ordered Boston College to relinquish the interviews with Ms. Price.
Mr. Moloney and Mr. McIntyre accused the college of not doing enough to protect the research and intervened to appeal the decision. On December 30, the U.S. Court of Appeals for the First Circuit blocked the document transfer to give itself time to consider the researchers’ arguments that obliging the British government’s request would endanger Ms. Price and potentially provoke tensions in Northern Ireland.
Courtroom Losses
Federal courts first weighed in on confidentiality agreements between academic researchers and their subjects in the late 1960s, in a case touching on whether a strict obscenity law enacted by Indiana would hinder the work of the Kinsey Institute for sex research at Indiana University, according to a 1997 analysis by Robert M. O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, published in the journal Law and Contemporary Problems. Mr. O’Neil’s analysis concluded, however, that the federal courts had generally upheld such confidentiality agreements only in special circumstances, such as when there existed alternative sources to the information sought. For the most part, he concluded, “the status of the scholar’s or researcher’s right to resist compelled disclosure remains tenuous and uncertain.”
In interviews this week, legal experts said the courts remain unwilling to uphold most such agreements. The only exceptions have been in cases involving “certificates of confidentiality” created by federal law and issued by the Department of Health and Human Services and agencies under it to human-subject researchers and the institutions that employ them. The certificates give investigators and others with access to research records the power “to refuse to disclose identifying information on research participants in any civil, criminal, administrative, legislative, or other proceeding.” The federal agencies have substantial discretion in awarding the certificates, which are used mainly in federally financed health research.
Ann H. Franke, president of Wise Results LLC, a company that consults colleges on risk management, said an institutional-review board’s sign-off on pledges of confidentiality to research subjects might give the pledges some additional legal weight, by affording them “a layer of legitimacy beyond the researcher’s own assertions.”
But Ms. Larson, of the Oral History Association, said people involved in such research disagree on whether it should be subject to institutional review-board oversight, and the boards themselves vary widely in their approach to oral history, with some regulating it heavily and others opting not to regulate it at all.
The Belfast Project was not covered by certificates of confidentiality or scrutinized by an institutional review board.
Luck and Pluck
Ms. Franke said she thinks it would be wise for researchers to tell subjects their confidentiality will be protected only “to the extent possible or practicable,” so that study subjects “are at least given some implicit notice of the possibility of disclosure.”
For the most part, such confidentiality agreements survive mainly because the research is not controversial enough for anyone to bother challenging them, or because the researchers have rendered the identification of their subjects impossible.
“By and large, nobody cares, because most of the research is not going to be subpoenaed,” said Thomas L. Van Valey, a professor emeritus of sociology at Western Michigan University and a former chairman of the American Sociological Association’s Committee on Professional Ethics.
Sociologists, he said, are able to “promise at least a measure of confidentiality” to research subjects by “de-identifying” them. Among the most common means of doing so are using anonymous surveys or assigning the subjects numbers and eventually destroying any record showing which number belonged to which person. As long the researchers take such actions before ever getting a subpoena requesting the identities of research subjects, they should be on sound legal ground, Mr. Van Valey said.
But Ms. Larson said many oral historians want to retain the ability to identify their subjects, because such work “is just so tied to individuals’ perspectives.”
Chris Bray, a doctoral candidate in the history department at the University of California at Los Angeles who has written extensively on the Belfast Project case, faulted Boston College administrators for failing to take into account just how vulnerable the confidentiality guarantees would be and not defending them hard enough.
“Academic freedom exists to the extent that you are willing to pay a price for it,” Mr. Bray said. “Journalists are willing to go to jail to protect sources. What will Boston College do?”
