A federal appeals court last week proved what many had known already: Boston College researchers should not have promised full confidentiality to former Irish Republican Army members who were subjects in an oral-history project. The court’s decision should compel BC to provide recordings that British authorities believe can help solve decades-old murders. In addition, other colleges should heed the lesson, and make clear that future confidentiality agreements with interview subjects be conditioned on legal approval.
The opinion has potentially sweeping consequences for all research institutions, as it succinctly limits the notion of an academic-freedom privilege: “The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.” As important as the legal ruling is, the case is also a cautionary tale about the need for proper oversight of research projects, even if done in the name of history.
Administrators of the Belfast project, who sought to provide an open forum for members of the IRA to discuss the historic unrest in Northern Ireland, had originally done the interviews with the full backing of BC. But in early 2011, based on statements published under the project’s auspices, the British government issued subpoenas to the college for information related to open criminal investigations. The appeals court sided with the request for information, holding that the mere fact that a legitimate institution offers a privilege does not mean the law needs to recognize it.
BC was not a party to the recent case, but continues to oppose other aspects of the British request. The researchers, Ed Moloney and Anthony McIntyre, have insisted that the confidentiality agreements be honored in all forums.
As the court noted, this is a legal drama of BC’s own making. The school takes tremendous pride in its involvement in peace efforts in Ireland. But, as BC discovered during the course of the litigation, the problem with the confidentiality agreements is that they did not warn participants that legal entities might eventually seek information through subpoenas.
While BC, Moloney, and McIntyre have all raised the First Amendment and the fear of reprisals against participants as reasons to protect the oral history tapes, the facts suggest that the project had strayed from accepted oral-history norms. Agreements at most research facilities, including even the contract between BC and Moloney, limit confidentiality to the extent provided by law. It was the agreements with the participants that did not have that caveat — an error of management more than anything else.
BC is right to insist that oral history is an important tool. In order to ensure its continuing viability at BC and all other institutions, the college ought to focus its energies now on institutionalizing appropriate oversight of its research.