USA: Court upholds subpoena of confidential IRA interviews requested by UK criminal authorities

Judgment of court: Two sets of subpoenas – mutual legal assistance treaty – US and UK – 1972 abduction and death – oral history recordings subject of subpoena – applications to quash subpoenas – applications to intervene – whether request for subpoenas violated the US-UK Mutual Lateral Assistance Treaty (MLAT) – refusal of applications to intervene – oral history project – history of “Troubles” – confidentiality agreement – guarantee “to the extent American law allows” – restriction of access to interviews until after death of interviewee – application by Boston College to quash subpoenas – application by directors of project to intervene – order that subpoenas be enforced – amicus curaie brief filed by American Civil Liberties Union of Massachusetts – hearing de novo – explanation of MLAT – whether directors of project had any rights derived from MLAT – no express language in treaty creating private rights – no private rights existing – whether treaty applied to material held by third parties – whether person in requested state could be compelled to produce documents – whether applicants trying to impede the execution of a request – whether APA provided claim for judicial review – whether District Court abused its discretion in denying relief – (whether DC had discretion was not argued) – whether balance of interest favoured grant of relief – whether constitutional claim properly dismissed – first amendment rights subject to constitutional limits – whether appellants had standing to raise constitutional claim – requirement that injury be concrete, particularized, actual or imminent, fairly traceable to the action and redressable by a favourable ruling – alleged injury traceable to the issuance of the subpoenas – failure to state a first amendment claim – “freedom to impart historically important information for the benefit of the American public, without the threat of adverse government reaction” – breach of “confidentiality” – academic research privilege – breaking of a promise of confidentiality – lack of general purpose reporter’s privilege – interest in prosecuting crime and law enforcement – chilling effect on academic research – limitation provided by Boston College not expressly included in contracts with interviewees.

Torruella (concurring opinion): Reluctant concurrence – relief foreclosed by Branzburg – appellants afforded some protection by first amendment – protections at times shielded “information gatherers and disseminators” – whether academic researchers axiomatically came within scope of protections – balancing of interests on either side.