A brief filed by the United States Department of Justice could significantly affect researchers doing oral histories or working with subject confidentiality agreements. The brief, filed on July 1st, concerns the extent to which courts will respect academic confidentiality agreements between researchers and subjects, and clearly outlines the government’s position against such agreements when measured against court authority. The issue emerged from a dispute between Boston College and the United Kingdom over a Boston College oral history archive on the socio-political unrest in Northern Ireland. The British government wants access to the documents which they argue relate to criminal investigations in Northern Ireland, while the college has protested that interviewees were promised confidentiality during their lifetimes.
The U.S. government’s position essentially rejects all of Boston College’s objections, arguing that no confidentiality a researcher may grant would withstand a subpoena, regardless of any promises made by the researcher. The brief acknowledges that academic confidentiality has been used to protect documents in civil lawsuits, but states that these protections do not extend to criminal cases, and says courts have not recognized an academic privilege comparable to the attorney/client privilege or Fifth Amendment protection against self-incrimination.
Not surprisingly, many historians and academics have come out in defense of Boston College’s position, arguing that the loss of trust between researcher and subject will have a chilling effect on research.
Read the full article from Inside Higher Ed: Oral History, Unprotected.
A Word From the DePaul University Office of Research Protections
Susan Loess-Perez, Director
The federal Office for Human Research Protections (OHRP) has indicated that oral history and similar activities (biography, history, journalism) that document historical events or experiences of individuals and do not aim to draw conclusions, inform policy or generalize findings do not constitute research and therefore do not require Institutional Review Board (IRB) review and approval. Only activity with research intent requires IRB review and approval.
Although this article calls the project research and those conducting it researchers, Boston College has confirmed in other articles that IRB review and approval were not obtained for the project. The article indicates that a common protection for researchers working with sensitive data is to obtain a Certificate of Confidentiality (COC). However, since oral history is not research, a COC could not be obtained and it is unclear whether it would hold up against a federal subpoena of this nature. Had this project undergone IRB review, the IRB would have had difficulty in determining whether the benefits of the research (presumably the indirect benefits of the knowledge gained) outweighed the risks (the direct risks of criminal prosecution for individuals).
The article underscores that even activities that are not research can involve potential risks to the subjects of the activity, as well as to the persons conducting the activity and their institution. Although the interviewers had interviewees sign a confidentiality agreement indicating that their identity would be sealed for a specified period of time, the government argues that there is no promise of confidentiality a researcher may grant that can withstand a subpoena. In the context of research, it is important to remember that a consent agreement is not a legal document and usually includes language about the limitation of confidentiality, including a lack of protection from subpoenas requesting the data.
From an ethical standpoint, the interviewees were never told that the content of the interviews might be subject to legal subpoena and therefore could result in substantial risk to them. The oral historians argue that this is an issue of academic freedom, but academic freedom refers to the faculty’s right to discuss or investigate any topic without interference or penalty from officials and does not appear to apply to this situation.
When conducting studies on sensitive topics that could involve risk to the researcher, subjects and the institution, it is a good idea to have a discussion with the DePaul University Office of General Counsel (OGC) regarding local or other laws that might affect the activity, and other legal issues such as limitations of confidentiality agreements and academic freedom.