Court of Appeals says Boston College must release 11 confidential interviews with former IRA members

Boston College must turn over 11 confidential interviews with former Irish Republican Army members for an investigation of a 40-year-old murder case in Northern Ireland, but a lower court was wrong to tell the college to release 74 others, the U.S. Court of Appeals in Boston (1st Cir.) ruled last week.

“After a detailed review of the materials in question, we find that the district court abused its discretion in ordering the production of several of the interviews” because those recordings were not relevant to the federal government’s subpoena, Judge Juan Torruella wrote in the court’s opinion.

The circuit court reasoned that the 11 remaining tapes were relevant because they related to the disappearance and death of Jean McConville, a Belfast mother of 10 and suspected U.K. informant who was murdered by the Provisional IRA in 1972. The Justice Department subpoenaed the college in 2011, on behalf of the British government under a treaty, for all records connected to the McConville case.

The interviews in question were collected as part of The Belfast Project, a Boston College oral history program on the violent struggle over Northern Ireland. Former IRA members spoke with researchers on the condition that the interview recordings would remain confidential until the deaths of the subjects.

The college argued that since confidential research is part of a process that produces constitutionally protected academic speech, the court should show “heightened sensitivity” in this case and uncover only documents that are “directly relevant” to the subpoena.

The court rejected this reasoning and concluded that an ordinary relevance standard was appropriate because the case was controlled by the U.S. Supreme Court’s decision in Branzburg v. Hayes. The Branzburg opinion concluded the First Amendment did not provide reporters a privilege to avoid testifying before a criminal grand jury proceeding. The “directly relevant” standard for subpoena enforcement applies only to cases that are distinguishable from Branzburg, the First Circuit ruled.

The First Circuit, in reviewing whether the lower court overstepped its bounds in releasing so many interviews, concluded that federal courts ultimately are responsible for overseeing the enforcement of subpoenas issued under the U.S.-U.K. treaty that drew the American government into the McConville investigation.

“In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States,” Torruella wrote.

Most states now have so-called shield laws to protect reporters from subpoenas that interfere with their ability to collect and publish news, but academic researchers generally are not covered by that statutory protection, and those shield laws would not apply in federal court.

In an earlier case over Belfast Project materials, Boston College researchers tried to get a subpoena quashed by arguing that the interviews were shielded by a First Amendment academic research privilege similar to the reporter’s privilege, but the First Circuit disagreed. The Reporters Committee for Freedom of the Press submitted an amicus brief late last year urging the U.S. Supreme Court to accept review of the case, which the high court in April ultimately declined to do.