Citing precedent, especially Branzburg v. Hayes, 408 U.S. 665 (1972), the court majority found that "the choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers."
[In re Request from United Kingdom, Nos. 11-2511, 12-1159, --- F.3d ----, 2012 WL 2628046 (1st Cir. July 06, 2012)]
In a concurrence, Judge Juan Torruella is more sympathetic to the researchers, arguing that academic researchers are entitled to "a degree of protection" and possess "a cognizable interest under the First Amendment." However, he continues, "any such interest has been weighed and measured by the Supreme Court and found insufficient to overcome the government's paramount concerns in the present context."
The Inside Higher Ed story by Scott Jaschik includes the IRB angle on this, noting that in April the Boston College (BC) chapter of the AAUP called for the creation of a university committee that would, among other tasks, "investigate the extent to which the research methods and procedures were subject to institutional review and oversight."
Jaschik reports that "David Quigley, dean of arts and science at Boston College, wrote back that the college's legal counsel had determined that the project did not meet the definition of human subjects research that would require an institutional review board review and approval."
As the court notes, Boston College did provide review, just not from an IRB.
Before the Project started, Robert K. O'Neill, the Director of the Burns Library, informed [project director Ed] Moloney that, although he had not yet conferred with counsel on the point, he could not guarantee that BC "would be in a position to refuse to turn over documents [from the Project] on a court order without being held in contempt."
Against this background, the Project attempted to guard against unauthorized disclosure. The agreement between Moloney and BC directed him as Project Director to require interviewers and interviewees to sign a confidentiality agreement forbidding them from disclosing the existence or scope of the Project without the permission of BC. The agreement also required the use of a coding system to maintain the anonymity of interviewees and provided that only the Burns Librarian and Moloney would have access to the key identifying the interviewees. Although the interviews were originally going to be stored in Belfast, Northern Ireland, as well as Boston, the Project leadership ultimately decided that the interviews could only be safely stored in the United States. They were eventually stored in the "Treasure Room" of the Burns Library, with extremely limited access.
The agreement between Moloney and BC requires that "[e]ach interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period if it becomes necessary" (emphasis added). The agreement, in this clause, expressly acknowledged that its protections could be limited by American law. The agreement also directs that the Project adopt an "appropriate user model, such as Columbia University's Oral History Research Office Guidelines statement."
Yet, "the donation agreements do not contain the 'to the extent American law allows' language that is contained in the agreement between Moloney and BC."
Moloney and BC blame each other for writing those faulty donation agreements. And Moloney and a fellow researcher claim the college told them "that BC had taken legal advice on this and the guarantee of confidentiality was iron clad; that there was no possible way this material could be accessed or used by anyone outside the terms of the donor agreement (i.e., death or consent)." But the fact remains that the college warned Moloney, in writing, about the limits of the guarantee it was offering, and Moloney signed a contract with that warning.
[Note to The Heights: I admire your reporting, but the truckload of Flash content on your site threatens to crash my computer every time I try to read a story.]
Perhaps, then, the lesson is that oral historians need to work more closely with the lawyers at the institutions with which they are affiliated, e.g., by making sure the lawyers have a chance to review materials given to donors. But we should not confuse expert review by lawyers with the inexpert review offered by IRBs, which may not include any historians or lawyers in their ranks.
For extensive, continuing coverage of this case, and links to coverage in other media, see Boston College Subpoena News.