Abstract
Although in the US there have been dozens of subpoenas seeking information gathered by academic researchers under a pledge of confidentiality, few cases have garnered as much attention as the two sets of subpoenas issued to Boston College seeking interviews conducted with IRA operatives who participated in The Belfast Project, an oral history of The Troubles in Northern Ireland. For the researchers and participants, confidentiality was understood to be unlimited, while Boston College has asserted that it pledged confidentiality only “to the extent American law allows.” This a priori limitation to confidentiality is invoked by many researchers and universities in the United States, Canada and Great Britain, but there has been little discussion of what the phrase means and what ethical obligations accompany it. An examination of the researchers’ and Boston College’s behaviour in relation to the subpoenas provides the basis for that discussion. We conclude that Boston College has provided an example that will be cited for years to come of how not to protect research participants to the extent American law allows.
Notes
The Troubles constituted the most recent period of armed conflict over the sovereignty of Northern Ireland dating back 300 years. The conflict involved mostly Catholic republicans seeking to unite Ireland under independent rule in armed conflict with mostly Protestant loyalists, who support Northern Ireland’s continued membership in the U.K. The Good Friday Agreement of 1998 led to formal ceasefires by the main republican and loyalist paramilitary organizations involved (http://www.dfa.ie/uploads/documents/Anglo-Irish/good%20friday%20agreement.pdf).
See Boston College confidentiality—Public references to agreement at http://bostoncollegesubpoena.wordpress.com/2012/01/02/boston-college-confidentiality-public-references-to-agreement/ and http://bostoncollegesubpoena.wordpress.com/2012/02/26/boston-college-confidentiality-public-references-to-agreement-2/
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. (hereafter In RE: Request from the UK re Dolours Price). M.B.D. No. 11-MC-91078. Moloney Agreement. Attachment to affidavit of Robert K. O’Neill. Document 5-6. Online at http://bostoncollegesubpoena.wordpress.com/exhibits/respondent-moloney-agreement/
The policy holds that “Researchers shall maintain their promise of confidentiality to participants within the extent permitted by ethical principles and/or law” (p. 58).
Email from Vincent Lynch, PhD, Chair, Boston College IRB, to Palys dated 12 January 2012, including “Statement from Boston College” signed by Jack Dunn, University Spokesperson.
Email from Jack Dunn, University spokesperson, Boston College, to Palys dated 20 January 2012. Dunn made the same claim to journalist David Cote (2012b).
In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Document 5. Motion of Trustees of Boston College to Quash Subpoenas, p.5. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-to-quash/
Boston College (30 December 1996). Policies and Procedures for Use of Human Subjects in Research. Online at http://web.archive.org/web/20010211141503/http://www.bc.edu/bc_org/avp/gsas/ora/HumSubjPol.pdf, p.1.
In 2003 the Office of Human Research Protections accepted representations that many, though not all, oral history projects did not meet the conventional definition of “research” and thus should not require ethics review. Even today, however, it is questionable whether the Belfast Project would be exempt. At the very least it would have to be submitted to the IRB to determine its status.
In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Document 5. Motion of Trustees of Boston College to Quash Subpoenas, p.5. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-to-quash/
In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Agreement for Donation. Attachment to Moloney affidavit, p.9. Online at http://bostoncollegesubpoena.wordpress.com/exhibits/affidavit-of-ed-moloney/
Both forms were the responsibility of Boston College. An alternative interpretation is that the two are consistent: the Donor Agreement did exactly and only what the agreement with Moloney said it would do, i.e., contractually outline “the conditions of the interview” (i.e., that it would be taped and transcribed) and “the conditions of its deposit at the Burns Library” (i.e., copyright held by interviewee until death; copyright goes to Boston College thereafter) “to the extent American law” (as opposed to Irish law) allows. This explanation is more consistent with university spokesperson Jack Dunn’s statement in a TV interview right after the receipt of the first Boston College subpoenas was made public, that “There was information that was clearly granted on the condition of confidentiality…” (Rooney 2011) and would mean that Boston College had no contingency plan in place in the event of a subpoena. This interpretation also is consistent with Moloney and McIntyre’s assertion that Boston College went into the project believing the risk of subpoena was zero and thus kept reassuring the researchers that their pledges of confidentiality were rock solid (Moloney and McIntyre 2012).
We asked the university spokesperson whether a formal legal opinion was sought prior to engaging the project, and if so, whether we might obtain a copy. (Email dated 25 January 2012 from Palys to Jack Dunn, University Spokesperson, Boston College). The query was repeated in follow-up emails on 17 February and 25 May. No response was received.
The individual agencies comprising DHHS are all authorized to issue confidentiality certificates as long as they generally fall within the mission of the National Institutes of Health.
People v. Newman (1973) at paragraphs 12, 15, 20, 43.
We asked the Boston College spokesperson whether Boston inquired about either of these protections, but did not receive a reply. (Email from Palys to Jack Dunn, University Spokesperson, Boston College, dated 20 January 2012. Follow-up emails asking the same question were sent 25 January, 17 February and 25 May.) When asked the same question Project Director Moloney replied that he never heard anything at the time from any Boston College representative about these certificates.
The information is on p.30 of Boston College’s “Standard Operating Procedures for Researchers” (dated 2010) available at http://www.bc.edu/content/dam/files/research_sites/oric/human/pdf/BC_IRB_PI_Procedures.pdf. We asked the IRB Chair in an email—from Palys to Vincent Lynch, IRB Chair, dated 13 January 2012—whether the information would have been available to researchers in 2000 when the Belfast Project was being formulated but did not receive a reply.
In RE: Request from the UK re Dolours Price. United States Court of Appeals for the First Circuit, No. 11-2511. US v Moloney, McIntyre. dated 6 July 2012, p.8. Online at http://bostoncollegesubpoena.wordpress.com/2012/07/06/first-circuit-court-of-appeals-ruling/
The loss of privilege in this case is all the more provocative because it goes against the grain of many other US court decisions that protect confidentiality.
In RE: Request from the UK re Dolours Price. United States Court of Appeals for the First Circuit, No. 11-2511. US v Moloney, McIntyre. dated 6 July 2012, p.7.
The database on which this article is based began to be compiled as soon as we first heard about the case in the summer of 2011. We joined Twitter @BC Subpoena News (see https://twitter.com/#!/BCSubpoenaNews) in order to ensure that we heard about every new document that was posted on the archive at http://bostoncollegesubpoena.wordpress.com/, an extraordinarily useful site. Also we conducted occasional Google searches to try and identify any media or scholarly commentary that the bostoncollegesubpoena site might have missed. At the time of writing well over 600 unique legal documents, blog entries, news articles, audio files, video files and images comprise the collection.
An anonymous reviewer wondered whether the guarantees by the researchers and those found in the Donor Agreement were misplaced given what s/he thought is every citizen’s legal obligation to report past crime to the police if they become aware of it. In fact, there is no such generalized legal obligation in most Western jurisdictions (e.g., Teitelbaum 1983). Some reporting requirements are to be found in mandatory reporting laws, such as the requirement in many provinces and states to report when children have been abused and are in need of protection. These laws are designed to identify situations where a crime is on-going in order to prevent it recurring. If there was a general legal obligation to report past crimes to the police, specific mandatory reporting laws would be redundant.
In RE: Request from the UK re Dolours Price). M.B.D. No. 11-MC-91078. Document 5-4. Affidavit of Anthony McIntyre, pp.2–3. Online at http://bostoncollegesubpoena.wordpress.com/exhibits/affidavit-of-anthony-mcintyre/
In RE: Request from the UK re Dolours Price). M.B.D. No. 11-MC-91078. Document 5-5. Affidavit of Ed Moloney, p.11. http://bostoncollegesubpoena.wordpress.com/exhibits/affidavit-of-ed-moloney/
In RE: Request from the UK re Dolours Price). M.B.D. No. 11-MC-91078. Document 5-2. Affidavit of Thomas Hachey, p.3. Online at http://bostoncollegesubpoena.wordpress.com/exhibits/affidavit-of-thomas-e-hachey/
In RE: Request from the UK re Dolours Price). M.B.D. No. 11-MC-91078. Document 5-6. Affidavit of Robert K. O’Neill, p.4. Online at http://bostoncollegesubpoena.wordpress.com/exhibits/affidavit-of-robert-k-oneill/
The film won the award for “Best Documentary” at the 8th Annual Irish Film and Television Awards ceremony held in Dublin’s Convention Centre on 12 February 2011. The film can be seen on Youtube.
However, in a recent affidavit, Moloney (2012b) states that by the time the book was being published, the existence of the archive was well known. For example, he recounts phone calls from a journalist asking him about details of Brendan Hughes’s interviews in early 2010 prior to the book’s publication.
Sinn Féin originated as the political wing of the IRA, and became the second largest party in Northern Ireland’s government.
In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Document 5. Motion of Trustees of Boston College to Quash Subpoenas, pp.2–3. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-to-quash/
In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Document 7. Government’s Opposition to Motion to Quash and Motion for an Order to Compel, p.20. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/government-opposition/
In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Document 10. Memorandum of Trustees of Boston College in reply to Government’s Opposition to Motion to Quash Subpoenas and in Opposition to Government’s Motion to Compel. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/reply/
The offer was made in In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Document 5. Motion of Trustees of Boston College to Quash Subpoenas, p.16, filed 7 June 2011. The interviews were handed over within days after Judge Young took them up on their offer in his decision, which was given on 16 December 2011, despite his anticipation that the College would likely seek to stay his order while they appealed. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-to-quash/
Email from Ed Moloney to Tom Hachey dated 31 May 2011. The email appears in Bray (2012a). The original was written mostly in lower case and has been edited here for capitalization.
Email from Thomas Hachey to Ed Moloney dated 2 June 2011. The email appears in Bray (2012a).
In RE: Request from the UK re Dolours Price. M.B.D. No.: 11-MC-91078. Motion of Trustees of Boston College to Quash New Subpoena, p.2. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-to-quash-new-subpoena/
In RE: Request from the UK re Dolours Price. M.B.D. No.: 11-MC-91078. Document 12. Motion of Trustees of Boston College to Quash New Subpoenas, p.2. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-to-quash-new-subpoena/
In RE: Request from the UK re Dolours Price. M.B.D. No.: 11-MC-91078-JLT. Document 14. Government’s Opposition to Motion to Quash New Subpoenas and Motion to Compel, pp.2–3. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/government-opposition-to-second-motion-to-quash/
In RE: Request from the UK re Dolours Price. M.B.D. No.: 11-MC-91078 (JLT). ECF Motion for Leave to Intervene. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-for-leave-to-intervene/
In RE: Request from the UK re Dolours Price. Memorandum and Order, dated 16 December 2011, District Judge William Young, p.21. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/young-ruling/
In RE: Request from the UK re Dolours Price. M.B.D. No. 11-MC-91078. Document 5-6. Affidavit of Robert K. O’Neill, p.3. Online at http://bostoncollegesubpoena.wordpress.com/exhibits/affidavit-of-robert-k-oneill/
In RE: Request from the UK re Dolours Price. No. 12-1236. Brief of Appellant Trustees of Boston College, p.7. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/brief-of-appellant-trustees-of-boston-college/
In the matter of an application by Anthony McIntyre for judicial review and in the matter of a decision of the Police Service of Northern Ireland to request the United States Government to seek on its behalf confidential material held by Boston College, Massachusetts, USA, pursuant to the treaty between the United States and the United Kingdom on mutual assistance in criminal matters. First affidavit of Ed Moloney. 12 September 2012. Online at http://bostoncollegesubpoena.wordpress.com/2012/09/17/boston-college-subpoenas-caused-by-journalists-lies-and-psni-failings/
RTÉ News/Ireland. (8 January 2012). Belfast Project interviewer fears for his life. Online at http://www.rte.ie/news/2012/0108/belfastproject.html
In RE: Request from the UK re Dolours Price). M.B.D. No. 11-MC-91078 (WGY). Motion for Stay or Injunction Pending Appeal to the Court of Appeals from the Order of the District Court for the District of Massachusetts, p.1. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-for-stay/
For Boston College’s written submissions, see In RE: Request from the UK re Dolours Price. No. 12-1236, dated 3 May 2012. Brief of appellant trustees of Boston College. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/brief-of-appellant-trustees-of-boston-college/ and In RE: Request from the UK re Dolours Price. No. 12-1236, dated 6 August 2012. Reply brief of appellant trustees of Boston College. Online at http://bostoncollegesubpoena.wordpress.com/court-documents/motion-for-stay/ . For an audio and transcript of oral arguments, see http://bostoncollegesubpoena.wordpress.com/2012/09/09/audio-transcript-of-oral-arguments-first-circuit-court-of-appeals-September-7-2012/
College officials ended up examining the loyalist interviews, which made little sense given that it should be obvious that they would be unlikely to know anything about McConville’s abduction and murder. But more importantly, if Boston College had the ability to search through the loyalist interviews, their arguments about why they handed over republican interviews to the court seem even less compelling.
RTÉ News/Ireland. (8 January 2012). Belfast Project interviewer fears for his life. Online at http://www.rte.ie/news/2012/0108/belfastproject.html
See Boston College confidentiality—Public references to agreement at http://bostoncollegesubpoena.wordpress.com/2012/01/02/boston-college-confidentiality-public-references-to-agreement/ and http://bostoncollegesubpoena.wordpress.com/2012/02/26/boston-college-confidentiality-public-references-to-agreement-2/
Presumably such behaviour is no longer possible in Canada with the publication of TCPS2 (CIHR et al. 2010), which states, “Researchers shall safeguard information entrusted to them and not misuse or wrongfully disclose it. Institutions shall support their researchers in maintaining promises of confidentiality.” (Article 5.1)
Many cases could be cited. Examples include Richards of Rockford Inc. v. Pacific Gas and Electric 1976; Dow Chemical v. Allen 1982; Deitchman v. E.R. Squibb & Sons, Inc. 1984; In re Grand Jury Subpoena Dtd January 4 1984; Snyder v. American Motors Corp. 1987; Cusumano v. Microsoft 1998. See Cecil and Wetherington (1996) and Lowman and Palys (2001) for further examples.
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The authors thank Chris Bray, Anthony McIntyre, Ed Moloney, Russel Ogden, John Russell, and an anonymous reviewer for their comments.
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Palys, T., Lowman, J. Defending Research Confidentiality “To the Extent the Law Allows:” Lessons From the Boston College Subpoenas. J Acad Ethics 10, 271–297 (2012). https://doi.org/10.1007/s10805-012-9172-5
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DOI: https://doi.org/10.1007/s10805-012-9172-5