United States v. Trs. of Bos. Coll.

• Decision Date: 16 December 2011
• Docket Number: No. 11–91078–WGY.,11–91078–WGY.
• Citation: 831 F.Supp.2d 435,279 Ed. Law Rep. 878
• Parties: 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 UNITED STATES of America, Petitioner, v. TRUSTEES of BOSTON COLLEGE, Movant, John T. McNeil , Commissioner, Ed Moloney, Anthony McIntyre, Applicants for Intervention.
• Court: U.S. District Court — District of Massachusetts

831 F.Supp.2d 435

279 Ed. Law Rep. 878

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 PriceUNITED STATES of America, Petitioner,

v. TRUSTEES of BOSTON COLLEGE, Movant,John T. McNeil ¹, Commissioner,Ed Moloney, Anthony McIntyre, Applicants for Intervention.

No. 11–91078–WGY.

United States District Court, D. Massachusetts.

Dec. 16, 2011.

Jeffrey Swope, Edwards Wildman Palmer LLP, Boston, MA, for Movant.

John T. McNeil, United States Attorney's Office, Boston, MA, for Petitioner.

James J. Cotter, III, Quincy, MA, for Ed Moloney.

MEMORANDUM & ORDER

YOUNG, District Judge.

I. INTRODUCTION

The Trustees of Boston College (“Boston College”) move to quash or modify subpoenae requesting confidential interviews and records from the oral history project known as the “Belfast Project.” The subpoenae were issued by a commissioner pursuant to 18 U.S.C. § 3512, the United Kingdom Mutual Legal Assistance Treaty (“UK–MLAT”),² and a sealed Order of this Court. ³ The government asserts that the terms of the UK–MLAT requires the Court to grant its order and deny any motion to quash absent a constitutional violation or a federally recognized testimonial privilege. Opp'n Gov't's Mot. Quash & Mot. Order Compel (“Gov't's First Opp'n”) 8, ECF. No. 7. Boston College asks the Court to review the subpoenae under the standard set forth in Federal Rule of Criminal Procedure 17(c)(2), where “the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.” Mot. Trustees Boston College Quash Subpoenas (“Mot. Quash”), ECF. No. 5. This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK–MLAT.

A. Procedural Posture

On June 7, 2011, Boston College filed a motion to quash or modify the subpoenae. Mot. Quash, ECF. No. 5. The subpoenae requested documents and records connected with interviews of two individuals, Brendan Hughes and Dolours Price. Boston College complied with the requests for documents relating to Brendan Hughes as doing so did not conflict with their self-imposed conditions of confidentiality (Mr. Hughes is deceased). Boston College then filed a motion to quash or modify the subpoenae on June 6, 2011. Mot. Quash. The government opposed the motion to quash and requests that the Court enter an order compelling Boston College to produce the materials responsive to the commissioner's subpoenae. Gov't's First Opp'n 1. After the government voluntarily narrowed the subpoenae, Boston College filed a new motion to quash. Mot. Trustees Boston College Quash New Subpoenas (“New Mot. Quash”), ECF No. 12. The government continues to oppose the motions to quash. Mem. Opp'n Mot. Quash New Subpoenas, ECF No. 14.

District Court Judge Stearns and District Court Judge Tauro recused themselves from this case, and the case was transferred to this session of the Court on October 5, 2011. ECF Nos. 8, 30.

B. Facts

1. The Subpoenae

The subpoenae referenced in this case were filed under seal and all discussion of their contents is drawn from the public record. Boston College received the first set of subpoenae on May 5, 2011, which named as recipients the John J. Burns Library at Boston College, Burns Librarian Robert K. O'Neill, and Boston College Professor Thomas E. Hachey. Mot. Quash 2. The subpoenae were issued by a commissioner under the authority of 18 U.S.C. § 3512 and the UK–MLAT. Id. The subpoenae included demands for the recordings, written documents, written notes and computer records of the interviews of Brendan Hughes and Dolours Price to be produced on May 26, 2011. Id. The interview materials of Brendan Hughes were produced in a timely manner to the government because the terms of confidentiality of his interviews ended with his death. Id. at 3. By agreement with the United States Attorney's Office, the date for production of other documents was extended to June 2, 2011. Id.

A second set of subpoenae was served on August 4, 2011 to counsel for Boston College. New Mot. Quash 2. These subpoenae additionally demanded the recordings, transcripts and records of “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” Id. at 2. Both sets of subpoenae requested documents gathered as part of an oral history project sponsored by Boston College. Id. at 1–2.

2. The Belfast Project

In 2001, Boston College sponsored the Belfast Project, an oral history project with the goal of documenting in taped interviews the recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 forward. Mot. Quash, Ex. 6, Aff. Robert K. O'Neill (“Aff. O'Neill”) 2, ECF No. 5–6. The research also sought to provide insight into the minds of people who become personally engaged in violent conflict. Mot. Quash, Ex. 5, Aff. Ed Moloney (“Aff. Moloney”) 8, ECF No. 5–5. As such, its progenitors saw it as a vital project to understanding the conflict in Northern Ireland and other conflicts around the world. Id. The Belfast Project was housed at the Burns Library of Rare Books and Special Collections at Boston College. Aff. O'Neill 3–4. Boston College sponsored the project due to its ongoing academic interest in Irish Studies and its prior role in the peace process in Northern Ireland. Id. at 2. The Burns Library serves as the archive for a variety of valuable documents, including an Irish Collection. Id. at 1. Ed Moloney, a journalist and writer, originally proposed the Project. Aff. O'Neill 7. Prior to the commencement of the Project, Robert K. O'Neill, the Burns Librarian, cautioned Moloney that although he had not spoken yet with Boston College's counsel, the library could not guarantee the confidentiality of the interviews in the face of a court order. Gov't's First Opp'n, Ex. 10, Fax from Robert K. O'Neill to Ed Moloney, May 10, 2000, ECF No. 7–10.

The Trustees of Boston College contracted in 2001 with Moloney to become the Project Director for the Belfast Project. Mot. Quash, Ex. 5, Aff. Moloney, Attach. 1, Agreement between Trustees of Boston College and Edward Moloney (“Moloney Agreement”), ECF No. 5–6. The contract required the Belfast Project Director, interviewers and interviewees to sign a confidentiality agreement forbidding them to disclose the existence or scope of the Project without the permission of Boston College. Id. at 2. The contract also required the adoption of a coding system to maintain the anonymity of interviews. Id. Only Robert K. O'Neill and Ed Moloney would have access to the key identifying the interviewees. Id.

Originally the interviews were to be stored in Boston and in Belfast, Ireland, although ultimately the project leadership decided that interviews could only be stored safely in the United States. Id.; Aff. Moloney 4–5. The interviews were eventually stored in the Burns Library “Treasure Room” with extremely limited access. Aff. O'Neill 3.

Each interviewee of the project was to be given a contract guaranteeing confidentiality “to the extent that American law allows.” Aff. Moloney, Attach. 2, Moloney Agreement 2 (“Moloney Attach. 2”), ECF No. 5–5. The contract recommended adopting guidelines for use, similar to those in Columbia University's Oral History Research Office Guidelines.⁴Id. The Belfast Project subsequently employed two researchers to conduct interviews with members of the Irish Republican Army and the largest Protestant paramilitary group, the Ulster Volunteer Force. Aff. Moloney 9. One interviewer, Anthony McIntyre, contracted with Moloney in an agreement governed by the terms of Moloney's contract with Boston College. Moloney Attach. 2. McIntyre's contract required him to transcribe and index the interviews, as well as abide by the confidentiality requirements of the Moloney Agreement. Id. The interviewers conducted twenty-six interviews which were subsequently transcribed. Gov't's Opp'n. Mot. Quash New Subpoenas 2–3, ECF No. 14.

Although the legal agreement between Moloney and Boston College was appropriately equivocal in its guarantee of confidentiality, Boston College asserts that the promises of confidentiality given to interviewees were absolute. Mot. Quash 5–6. Interviewees apparently signed a confidentiality and donation agreement that promised that access to the interviewee's record would be restricted until after the death of the interviewee, except if the interviewee gave prior written approval following consultation with the Burns Librarian. Aff. O'Neill, O'Neill Attach. 2, Agreement for Donation by Brendan Hughes, ECF. No. 5–6; Aff. O'Neill 3 (explaining that each interviewee signed a donation agreement largely identical to the Brendan Hughes agreement). In general, Boston College believes that interviewees conditioned their participation on the promises of strict confidentiality and anonymity. Mot. Quash 5. In an affidavit, McIntyre stated that he would not have been involved if he had understood that the interviews might be susceptible to legal process. Mot. Quash, Ex. 4, Aff. Anthony McIntyre (“Aff. McIntyre”) 2, ECF No. 5–4.

Boston College further alleges that the premium on confidentiality in the Belfast Project was exacerbated by the possibility of retaliation by other Irish Republican Army members enforcing their “code of silence.” Mot. Quash 5–6. Nonetheless, the existence of the Belfast Project is now widely known, and in 2010, Moloney publisheda book using material from two deceased interviewees. Aff. Moloney 9. Moloney also co-produced a documentary film using those interviews that is available online. Gov't's First Opp'n 4. The interviews with Dolours Price by Boston College were also the subject...