Breaking News: New Ruling in the Belfast Project Case

Boston College St. Ignatius Gate
Yesterday, Judge Young ruled that most of the interviews Boston College turned over to him for in camera inspection need not be produced in response to the government’s second subpoena. The decision doesn’t rest on any high constitutional principles. Rather, the gist of the judge’s decision is that most of the materials are not within the subpoena’s scope. According to BC’s second motion to quash, the subpoena called for:

  1. Original audio and visual recordings of “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.”
  2. Written transcripts, summaries, and indices of such interviews.
  3. Records that describe the arrangement and circumstances of the recordings and the chain of custody of the recordings.

(The first subpoena, in contrast, called for the interviews of Dolours Price and Brendan Hughes, and thus it hardly gave room for debate about what was or was not within its scope).

Judge Young found, following his review, that of the 176 interviews of 24 interviewees submitted for review, only 6 interviewees mentioned the McConville incident at all. Of these, one interviewee provided clearly responsive material. Another interviewee provided “information that, if broadly read, is responsive to the subpoena.” Three others made “passing mention of the incident”, though it is unclear whether they had personal knowledge of it. Judge Young ordered that the complete set of interviews of these five interviewees must be produced. the sixth “does nothing more than express personal opinion on public disclosures made years after the incident.” Judge Young held that that interviewee’s materials need not be produced. The judge also ordered that two additional interviews hat mentioned “a shadowy sub-organization within the Irish Republican Army that may or may not be involved in the incident” must be produced, though the entire set of interviews for those interviewees need not be produced.

This decision is a partial vindication of Boston College’s recent litigation strategy, which has been to agree to the turn-over of the Dolours Price interview, which was clearly related to the McConville investigation, and to fight to keep the other materials confidential. If the College agrees with the judge that any interviews relevant to that investigation should be turned over, then the decision may be a more-than-partial vindication. In a column in the Irish Times, Professor Thomas E. Hachey and Dr. Robert K. O’Neill, respectively the Executive Director of Irish Programs and Burns Librarian at BC, wrote:

Upon its initial in camera review, the court, which has access to sealed information about the underlying criminal investigation that Boston College does not have, ruled that the Price materials had to be turned over given their relevance to the investigation.

The court has not ruled on the remaining interviews in question, and our hope is that these remaining materials under the judge’s review will not have to be released. That is one reason why Boston College chose not to appeal the court’s decision, deeming this option to be the better course to protect the interests of interviewees and to help preserve the court’s recognition of the important interests in protecting academic research more broadly than had been previously recognized in law.

There may not be a good explanation for why Boston College turned over the non-responsive materials in the first place, a decision that partisans opposed to the subpoenas have blasted. Still, Boston College’s overall strategy seems to have been sound, given that it was ultimately willing to turn over the Price materials. (We must wait and see whether the College is also willing to turn over these additional materials without a fight).

The scope of the case has now been significantly narrowed (unless the government appeals from the new order). Now all that is at stake is the Dolours Price interview and the subset of interviews that bear on the McConville incident. This may be satisfactory to Boston College, but will it be satisfactory to Ed Moloney and Anthony McIntyre, the Belfast Project researchers who have mounted their own legal and political fight against the subpoenas?

This Tuesday, Judge Young will be hearing argument on the lawsuit brought by Mr. McIntyre and Mr. Moloney, who argue that both subpoenas were improper. I’ll be liveblogging the hearing, so please check out just before 2 pm Eastern time (7 pm Ireland time)!

12 responses to “Breaking News: New Ruling in the Belfast Project Case”

  1. I noted also that the court was able to do what BC said it could not: it determined, in a very few weeks, which interviews were responsive to the subpoenas. This is the center of the question about “why Boston College turned over the non-responsive materials in the first place.” Why could the court manage this task, but the archive that held the materials for ten years could not?

    1. Chris, as the post indicates, I agree with you that this is a good question.

      Do you think this decision will have any effect on the dynamics of the case going forward?

      I hope you’ll join in the liveblog on Tuesday!

      1. I’ll be at the hearing—I’ll coming in for the afternoon.

        1. Oh! Well, I’ll look forward to meeting you.

  2. Adding: BC has now been ordered to turn over material from nine of 24 interviewees—from a confidential collection of politically explosive material that they promised to protect until the deaths of its research subjects. 9/24ths of a defeat is some victory, and some remarkable vindication. The interviewees among this new group of seven will not regard this as a success. But you think BC should?

    1. Well, BC seems clearly to take the view that in light of Dolours Price’s interview that her materials ought to be turned over. My guess—it’s just a guess—is that because the judge asserted that the additional materials to be turned over bear on the investigation of the McConville crimes, BC will probably not challenge the ruling, because, as its spokesman said: “We would never want anyone to think that Boston College was obstructing a murder investigation.” So I guess whether this is a victory or not depends on what you think the College is trying to accomplish. It’s already clear that BC isn’t trying to accomplish what Moloney and McIntyre are trying to accomplish, namely, to quash both subpoenas in toto no matter how much the interviews have to do with the kidnapping and killing of Mrs. McConville.

      1. The great irony here is that Moloney and McIntyre are the two people on earth who bothered to pursue information about Jean McConville’s killing, while the police in Northern Ireland did nothing about it for forty years. There would be nothing at all on record anywhere about this killing without their effort. But that effort won’t be possible to replicate in the future, because future research subjects can learn about this outcome and realize that they are endangering themselves by speaking about topics the police might find interesting.

        Moloney and McIntyre aren’t protecting murderers—they’re the people who got discussions of the murder on tape. They’re protecting the confidentiality they promised to their subjects, and they’re protecting the viability of future research.

        1. I think that’s a really good statement of what’s at stake in this case: Is the benefit of oral history such that oral histories should be entitled to an evidentiary privilege, like the attorney/client privilege, even if they contain evidence of crimes? I’ve called this question a toss-up in prior posts, though my view is that the law doesn’t recognize such a privilege (yet?). But that’s not really what the Moloney/McIntyre case is most centrally about. Their complaint is really about the propriety of the subpoenas under the MLAT, not the evidentiary privilege. So even if they’re right about everything they say in their complaint, a win for them wouldn’t establish a rule that would prevent, say, the government from subpoenaing oral histories in a purely domestic case.

        2. Diann Isleñita Cook

          I believe that BC and its attorneys did an absolute disservice to all issues involved in this case. The fact that they chose not to appeal based on the Price interview was absurd. She was tricked into it, under psychiatric care and in order to proffer this argument the presenter must have clean hands. Clearly this was not the case. This should have been appealed by BC if for no other reason than to make a record for appeal. I have a feeling that BC knows they are now exposed to liability and are improperly trying to platform a defense in this proceeding.

  3. […] has posted the government’s motion for reconsideration of Judge Young’s order. I had noted the possibility of a government challenge to the order, but I’m a little surprised that the […]

  4. […] of the interviews of former members of the Provisional Irish Republican Army in the archive.  From Ted Folkman’s blog 21 January.  According to BC’s second motion to quash, the subpoena called […]

  5. […] Boston College has filed its reply brief in its appeal in the Belfast Project case. As I read the brief, BC is conceding the issue of evidentiary privilege in light of the First Circuit’s decision in McIntyre & Moloney’s appeal. In other words, BC is no longer claiming that there is a privilege to refuse to produce documents that are clearly responsive to the subpoenas. Instead, BC argues that under the Cusumano decision, in the academic research context, the judge had to apply heightened scrutiny to determine whether documents are sufficiently relevant to require production. This is a good point—Judge Young’s decision on the responsiveness of some of the materials, other than the Dolours Price and Brendan Hughes interviews, was questionable. We covered that issue back in January. […]

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