Researchers who conduct oral history have no right to expect courts to respect confidentiality pledges made to interview subjects, according to a brief filed by the US Justice Department on Friday.
The brief further asserts that academic freedom is not a defence to protect the confidentiality of such documents.
With the filing, the US government has come down firmly on the side of the British government, which is fighting for access to oral history records at Boston College that authorities in the UK say relate to criminal investigations of murder, kidnapping and other violent crimes in Northern Ireland. The college has been trying to quash the British requests, arguing that those interviewed as part of an archive on the unrest in Northern Ireland were promised confidentiality during their lifetimes.
Particularly now that the Justice Department has weighed in, the case could have an effect on oral history well beyond the archives at Boston College – and some experts predict a negative impact.
The US position in the case deals with a number of issues raised by Boston College – some of which don’t relate to issues of academic rights. (For example, the college suggests that release of the records could endanger the peace process in Northern Ireland, and the US rejects that view.)
On the issues related to the rights of researchers and colleges, the brief rejects all of the college’s arguments. The government argues that there is no right of confidentiality a researcher can grant that would withstand a subpoena. The Justice Department notes that Boston College acknowledged in its communication with research subjects that its confidentiality pledges assure privacy “to the extent American law allows”, which the government says isn’t very far in cases like this – whatever implication may have been read into that statement by researchers or by interview subjects.
Just because college researchers thought they could maintain confidentiality – and told sources they would do so – is no reason for the courts to go along, the brief says. Boston College wants “the court [to] enforce a promise simply because it was unwisely or mistakenly made”, the brief says. “This too should be rejected because it would turn the law on its head. To grant the motion to quash would encourage other persons engaged in collecting ‘oral histories’ – whether they be legitimate academics, or the purveyors of pulp fiction collecting ‘confessions’ about organized crime – to promise complete confidentiality, relying on the court to enforce that ill-advised promise.”
The brief goes on to argue that while professors’ documents have been protected from release in the context of civil lawsuits, this case involves serious criminal charges. Academic protections don’t apply, the Justice Department says.
“Courts have not recognized an ‘academic privilege’ akin to the attorney/client privilege or the Fifth Amendment protection against self-incrimination,” says the federal brief.
Many historians have been backing Boston College in the case. Clifford M. Kuhn, a historian at Georgia State University who is a past president of the Oral History Association, filed an affidavit on behalf of Boston College in which he said that if Britain’s request is granted, the field of oral history could be damaged.
“Trust and rapport are at the very core of the oral history enterprise,” he said in his brief. As part of the process of “informed consent”, interview subjects request certain levels of confidentiality, and researchers approve them. “The reason for this protocol is to foster candor and openness in the interview itself, so as to most fruitfully and fully enhance the historical record.”
If researchers can’t make such pledges, Kuhn said, they may face “self-censorship during the interview”. He added that “if promises made by a repository are not kept to narrators, there might be a damaging ripple effect on potential future oral history interviews and projects.”
Writing on the history blog Cliopatria, Chris Bray, a graduate student in history at the University of California at Los Angeles, called the Justice Department’s brief “unmistakably aggressive in tone and in scope”.
Kathi Westcott, associate counsel of the American Association of University Professors, said that the AAUP recognises that colleges are not immune from subpoenas. But she said that the association rejects “the government’s contention that academic freedom is irrelevant to the court’s assessment of what circumstances necessitate a response to these types of subpoenas and the scope of response that is appropriate”.
Westcott said it was “disappointing to see the government take a position that disregards clear legal precedent protecting academic research”. She said that many courts have “recognised that academic scholarship is deserving of specified protection and that such protection requires a balancing approach in attempting to ensure that investigative demands are sufficiently factually based and narrow so as to limit the potential chilling effect these types of requests might have on future academic research”.
One leading expert said that it is possible that both sides are correct in this case: oral history may not have the legal protections Boston College asserts, and the field may pay a big price if the British government prevails.
John A. Neuenschwander is the author of A Guide to Oral History and the Law (2009). In an interview, Neuenschwander said that he searched for precedents that would create a true legal privilege for oral history confidentiality pledges – and could not find any. “There is nothing to absolutely defend a promise of confidentiality,” said Neuenschwander, a professor emeritus of history at Carthage College and a municipal judge in Kenosha, Wisconsin.
At the same time, Neuenschwander said that offers of confidentiality are common and much needed to create a frank record of history. “Let’s say you are working on a project on the Texas Legislature, and you talk to legislators right after a session. You promise to seal the interviews for 20 years, and they in turn can really let rip because what they say won’t be out any time soon. That’s the bargain you make, and it gets the historian the fullest possible record,” he said.
Typically, these promises aren’t challenged in court by anyone. And Neuenschwander said that he thought it was safe to indicate that they would protect confidentiality – unless hit with a court order. “They just can’t give an ironclad guarantee.” (Boston College is private, but he noted that public colleges and universities also need to check state open records requirements on these issues to see if they can protect interview subjects.)
For many oral history projects, it is hard to imagine a subpoena, but trends in research may mean more controversies, Neuenschwander said. In the past decade, oral history projects have been much more likely than in previous years to examine recent history and to interview people who may have committed or who know about illegal acts, Neuenschwander said.
Social scientists who study dangerous or controversial behaviours (some of which are illegal) deal with these issues, Neuenschwander said, by simply making the names of research subjects anonymous. There is a process through which the National Institutes of Health can grant “certificates of confidentiality” for such research. But history research is different, Neuenschwander said, in that – eventually – historians want to say who did what. A long-term seal of an interview protects confidentiality while needed, but eventually lets people write about the players involved.
The Boston College case – involving charges of murder and an information demand from Britain – is highly unusual, Neuenschwander said. He said he hoped that people “don’t overreact” based on the outcome in this case.
“Given the publicity this case has had, I think it’s going to have a fallout effect of people not being willing to come forward,” he said. “It will have a chilling impact on future interviewees, and that’s very sad.”
Boston College, asked about the Justice Department’s brief, released a statement on Monday that said: “In filing the motion to quash the subpoena, Boston College is asking the court to weigh the important competing interests in this matter in light of our contention that the premature release of the tapes could threaten the safety of the participants, the enterprise of oral history, and the ongoing peace and reconciliation process in Northern Ireland. Given the ongoing legal proceedings, we will reserve further comment until the matter is resolved by the court.”