United States v. Trustees of Boston College

718 F.3d 13, 2013 WL 2364165, 2013 U.S. App. LEXIS 11016
CourtCourt of Appeals for the First Circuit
DecidedMay 31, 2013
DocketNo. 12-1236
StatusPublished
Cited by18 cases

This text of 718 F.3d 13 (United States v. Trustees of Boston College) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Trustees of Boston College, 718 F.3d 13, 2013 WL 2364165, 2013 U.S. App. LEXIS 11016 (1st Cir. 2013).

Opinion

TORRUELLA, Circuit Judge.

As part of its academic mission, Boston College (“BC”), an institution of higher learning, undertook research into the armed conflict surrounding the independence movement of Northern Ireland during the second half of the Twentieth Century. In the course of said research, which it labeled the “Belfast Project” (“Project”), BC compiled extensive oral histories in the form of personal interviews and testimonies from formerly active participants in that volatile period, including from past members of the Irish Republican Army (“IRA”) and its various related organizations. Said materials are deposited in a secure section of BC’s Burns Library, where they are accessible only for academic research and study, subject to strict confidentiality agreements entered into between BC and the interviewees.

On August 11, 2011, pursuant to Article 5 of the Treaty Between the Government of the United States and the Government [17]*17of the Kingdom of Great Britain and Northern Ireland on Mutual Legal 'Assistance on Criminal Matters, U.-S.-U.K., Dec. 2, 1996, S. Treaty Doc. No. 104-2 (“US-UK MLAT”)1 and 18 - U.S.C. § 3512, a commissioner appointed to represent Petitioner-Appellee the United States (“Petitioner”) issued, and thereafter sought enforcement of, a subpoena (the “August 2011 subpoena”) in the United States District Court for the District of Massachusetts. Said subpoena is aimed at compelling the production by BC of the recordings and/or transcripts of all interviews collected by the Project’s researchers, “containing information about the abduction or death of Mrs. Jean McConville,” an apparent casualty of the interstitial conflict in Northern Ireland.

BC filed a motion to quash this subpoena, seeking to preserve the confidentiality of its research. The district court denied BC’s request, but agreed to perform an in camera review of the documents sought by the Petitioner. Following said review, the Court ordered that 85 interviews in BC’s possession be turned over to the Petitioner for eventual transfer to the UK authorities.

BC now appeals the district court’s order to produce the interviews. Relying, on In re Special Proceedings, 373 F.3d 37, 45 (1st Cir.2004), it claims that “ ‘heightened sensitivity’ to First Amendment concerns” applies and that materials in the interviews “may not be compelled unless directly relevant to a” bona fide investigation.

After a detailed review of the materials in question, we find that the district court abused its discretion in ordering the production of a significant number of interviews that do not contain any information relevant to the August 2011 subpoena.

I. Background

In 2012, we issued a decision in two consolidated appeals relating to the instant appeal. See In re Dolours Price, 685 F.3d 1 (1st Cir.2012), cert. denied sub. nom. Moloney v. United States, — U.S. -, 133 S.Ct. 1796, 185 L.Ed.2d 856 (2013). Those appeals came about after the district court rejected the efforts of two BC researchers closely related to the Project, Ed Moloney and Anthony McIntyre, to intervene in the subpoena enforcement proceedings. We shall only recount the facts and holding of that case as is necessary to frame and decide the present appeal.

As is apparent from the record, the origins of these proceedings lay in the UK’s request for Petitioner US’s assistance in investigating the 1974 disappearance of Mrs. McConville from her home in Belfast, Northern Ireland. The UK seeks to scrutinize the Project’s materials for information aiding that investigation, and thus requested the United States’ assistance in obtaining them. In March 31, 2011, as provided in the US-UK MLAT and 18 U.S.C. § 3512,2 the district court appointed [18]*18a commissioner to pursue the UK’s request.

Shortly thereafter, in May 2011,. the commissioner served his first set of subpoenas on BC seeking the production of the interviews of two individuals who had taken part in the Project, Brendan Hughes (who by then had passed away) (“Hughes”) and Dolours Price. BC produced the Brendan Hughes materials right away because the terms of the confidentiality agreement ended with his death. BC, however, filed a motion to quash the subpoena aimed at the Dolours price materials. While that motion was pending, the commissioner served BC with another subpoena in August 2011 (the subject of the present appeal). Instead of being directed at the production of specifically named interviewees, the August 2011 subpoenas sought “[t]he original audio and video recordings” and “[a]ny and all written transcripts, interview summaries, and interview indices” “of any and all interviews containing information about the abduction or death of Mrs. Jean McConville.” BC moved to quash this subpoena as well.

On December 16, 2011, the district court denied BC’s requests to quash both sets of subpoenas. See United States v. Trustees of Boston College, 831 F.Supp.2d 435 (D.Mass.2011). It did, however, grant BC’s alternative request to conduct an in camera review. On December 27, 2011, after reviewing the Dolours Price interviews, the district court ordered their production. BC has since handed over said materials. The district court also conducted an in camera review of the August 2011 subpoenaed materials “to see whether, fairly read, they f[e]ll within the scope of the subpoena.” It declined to consider whether a materiality or relevance analysis was necessary and found that the judicial role was circumscribed to “checking to see whether the data produced conforms to the subpoena.”

On January 27, 2012, the district court issued a Findings and Order in which it summarily explained how it conducted its in camera review. The Order included a Sealed Appendix listing the specific materials to be produced. The list identified the materials according to BC’s coding system, using random letters and numbers to identify the interviewee and the interview number to be released. It neither explained why it ordered particular interviews to be released, nor why it ordered the production of all interviews by a given interviewee. In some cases it ordered the whole series of interviews conducted with a particular interviewee to be produced while in other cases only one interview from the series was ordered released. Before us now is BC’s appeal from that order.

While the present appeal was pending, BC filed a Suggestion of Death pursuant to Fed. R.App. P. 43(a)(1), informing this court that, “[a]ccording to news reports, Dolours Price was found dead on January 23, 2013, at her home in Malahide, Northern Ireland.” In asking the court to take notice of her death, BC also requested that we vacate the district court’s order to produce the August 2011 subpoenaed materials, dismissing this appeal as moot. Its main argument was that since the subject of the case, as identified in its caption, was Dolours Price, her death meant that criminal matters in relation to her could not continue.

The government opposed BC’s request.

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718 F.3d 13, 2013 WL 2364165, 2013 U.S. App. LEXIS 11016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-trustees-of-boston-college-ca1-2013.