Confidentiality Controversy at Simon Fraser University
Lowman & Ted Palys
School of Criminology
[This page was updated last on 5 December 2000]
The purpose of this web page is to facilitate access to a series of articles, briefs, legal opinions and other documents that are part of or relate to the research ethics controversy at Simon Fraser University (SFU). This page provides a brief description of the controversy with links to various articles and other documents that emerged from it.
There are three components to the lengthy controversy over research confidentiality that began in 1994 when a Vancouver Coroner subpoenaed SFU criminology graduate student Russel Ogden and asked him to reveal confidential research information at an inquest.
∑ The first involved the SFU administration's (1994) decision not to defend research participants and research confidentiality in court when it was challenged by a third party.
∑ The second concerned the administration's subsequent imposition (commencing in 1994 and 1995) of "limited confidentiality" on researchers according to its "Law of the Land" doctrine of research ethics.
∑ The third concerns the SFU Ethics Committee's more recent (2000) imposition of yet another version of "limited confidentiality": researchers' supposed "duty to report" to the authorities whenever they hear of any possibility of harm to a third party.
The story began with SFU graduate student Russel Ogden's MA thesis reporting the results of interviews with people who had assisted in the suicides and euthanasia of persons with AIDS. In 1994, when the Vancouver Coroner subpoenaed him to give evidence at an inquest, Ogden became the first and apparently still the only researcher in Canada to face the prospect of a contempt of court charge for refusing to divulge confidential research information.
The SFU administration decided at that time they would not mount a legal defense of Ogden's ethical undertaking to keep "absolutely confidential" the identities of research participants and information that could be linked to them. Ogden sued SFU to recover the legal fees he sustained in the process of defending research confidentiality and academic freedom in Coroner's Court. Although there is no statutory protection of academic researchers equivalent to the protections Sections 17 and 18 of the Statistics Act provide for Statistics Canada researchers, it is possible to assert evidentiary and testimonial privilege in common law using the Wigmore test. Using this test, the Coroner determined that Ogden's communications were privileged -- i.e., the court could not compel him to release them.
Although Ogden's suit against the University was unsuccessful, Judge Steinberg lambasted the University administration for its "surprising lack of courage" and "hollow and timid" approach when a subpoena threatened academic freedom and the research enterprise (Russel Ogden v. Simon Fraser University). Members of the School of Criminology affirmed much the same in a series of articles that challenged the university's decision in the Ogden case, and subsequent action by the Vice-President of Research. The controversy over the administration's treatment of Ogden was finally resolved when Drs. Steve Davis and Nicholas Blomley conducted a review of the Ogden decision (Russel Ogden Decision Review) and again pilloried the administration for its treatment of Ogden and his research participants. President Blaney accepted all three of Blomley and Davis' recommendations by:
a. Reimbursing Ogden's legal fees and lost wages.
b. Sending Ogden a letter apologizing for the way he had been treated. The letter acknowledged that Ogden's stand in the Coronerís Court was appropriate and principled.
c. Guaranteeing that, in future, the University would assist any researcher who finds him/herself in the position of having to challenge a subpoena (assuming their research complies with the University policy).
The minutes of the University Research Ethics Review Committee (URERC) meeting of 9 September 1994 show that, at the behest of the Vice President Research, the Committee decided to "require" researchers to limit confidentiality:
It was agreed that in cases where it can be foreseen that the researchers may not legally be in a position to ensure confidentiality to their subjects, these researchers must be required to provide only limited confidentiality in the wording of the consent form. It was recognized that limited confidentiality might serve to discourage participation of some subjects, and conceivably even prevent the research from taking place at all due to lack of subjects. Nevertheless, it was agreed that causing the researchers to provide limited confidentiality in appropriate cases would protect the subjects, the University, and the researchers.
In November 1995, the URERC began forcing researchers to use a "limited confidentiality" consent statement that included the following:
Any information that is obtained during this study will be kept confidential to the full extent permitted by law... It is possible as a result of legal action the researcher may be required to divulge information obtained in the course of this research to a court or other legal body.
The VP-Research outlined three justifications for use of this consent statement:
1. Because researcher-participant privilege is not recognized in Canadian statutory law, there is no point in challenging a subpoena.
2. Researchers are "not above the law of the land." The University cannot condone law breaking because it must respect the Rule of Law. Consequently, the university cannot approve an unlimited guarantee of confidentiality because it implies that a researcher would deliberately break the law by refusing to comply with a court order to disclose confidential information.
3. Research participants must be warned of every risk, no matter how remote. Therefore, in the interest of informed consent, it is necessary to warn prospective participants of the legal limits to confidentiality (e.g., see Bruce Clayman, "The Law of the Land", Simon Fraser News, 1997).
In 1997, two criminologists (us) informed the URERC that we could not use the limited confidentiality consent statement because:
1. The view that a subpoena represents the limit of the law abrogates the ethical responsibility to do everything legally possible to protect research participants from harm. Researchers can use a case-by-case analysis in common law to assert privilege, as Ogden did. Worse, a court might interpret the limited confidentiality consent statement as a waiver of privilege.
2. The limited confidentiality statement falls short of providing informed consent. The SFU Research Ethics Policy states that, "the subject will be fully informed, in advance, of the nature of information required and the subsequent use to be made of the information" including "what [personal] information is to be communicated to or withheld from others". Far from satisfying this requirement, the limited confidentiality consent statement provides information only about the legal limit of confidentiality. It says nothing about the researcher's ethical stand on this eventuality, because it assumes that law establishes the ethical limit. In the interests of informed consent, researchers must inform prospective participants if law sets the ethical limit to their guarantee of confidentiality.
3. It infringes academic freedom. Many social science ethics codes recognize that the researcher's primary professional obligation in the last instant is to ethics, not law. Consequently, in those very rare circumstances where law and ethics conflict, researchers should oppose compelled disclosure if it creates an ethical conflict. Researchers have a professional duty to know the law and use ethical criteria to shape and uphold their guarantees of confidentiality. If universities value academic freedom, university administrations have a duty to support researchers in this endeavor.
Fighting Limited Confidentiality: the Grievance Procedure
As a result of our refusal to use the URERC's limited confidentiality protocol, two of our research projects on prostitution were held up for eighteen months. We appealed the URERC's refusal to approve our research proposals. The Vice President Academic heard the appeal, as per the procedure specified in the SFU Research Ethics Policy and upheld the URERC's "Law of the Land" position. In response, we initiated a grievance of the appeal decision using the procedure outlined in the SFU Framework Agreement. The grievance asserted that imposition of the university administration's "limited confidentiality" doctrine infringes academic freedom and thus violates the Framework Agreement, several university policies and our disciplinary ethics code. The result was a rejection of the Appeal Decision and upholding of our right not to use the limited confidentiality consent statement. The consent statement we are now using makes it clear to research participants that we will not hand over confidential information to any third party, including a court, unless there is an ethical reason to do so. One such possibility is the unanticipated revelation of a real, serious, imminent, prospective harm to a clearly identified third party. Even then, we acknowledge that our ethical obligations to the research participant continue, and would seek a resolution that best safeguarded the interests of all concerned.
The SFU Research Ethics Policy Revision Task Force
In 1998 President Blaney established the Research Ethics Policy Revision Task Force to convene hearings, invite submissions and rewrite the SFU research ethics policy so it would comply with the Tri-Council Policy Statement. As part of this process, we prepared three submissions for the Task Force:
These submissions were designed to:
a. Expose problems with the administration of the SFU research ethics policy;
b. Articulate an "ethics-first approach" to the threat of court-ordered disclosure and show why SFU's "Law of the Land" approach is not consistent with various social science ethics codes;
c. Demonstrate that the URERC's limited confidentiality approach endangers research participants because it could be interpreted as a waiver of privilege.
d. Argue that the "ethics-first" approach is consistent with the Tri-Council Policy Statement;
e. Show that in the U.S., where many researchers have received subpoenas, a researcher has not yet confronted a situation where it would have been ethical to release confidential research information; and
f. Show that U.S. courts usually have protected the identities of research participants.
The Task Force arranged for Professors Michael Jackson and Marilyn MacCrimmon of the UBC Faculty of Law to prepare a legal opinion on the law of confidentiality as it applies to research (see "Research Confidentiality and Academic Privilege: A Legal Opinion").
Our commentary on the Jackson-MacCrimmon opinion is entitled: "Research Confidentiality and Researcher-Participant Privilege: An Ethics-Based Opinion."
The Research Ethics Revision Task Force Draft Policy
In February 2000, the Task Force presented its "Draft Policy" to Senate. However, various SFU commentators found the Draft Policy wanting in numerous respects, and there is clearly disagreement as to how to interpret the Tri-Council Policy Statement when it comes to the provisions that relate to potential conflicts between research ethics and law. Unfortunately, the Draft Policy did not resolve the numerous issues at the heart of the research ethics controversy. Consequently, Senate did not adopt the Draft Policy and handed the task of redrafting it to a Senate committee. Eight months later, the Committee has not yet distributed a new draft of the policy for comment.
In the mean time, because none of the University authorities responsible for drafting the new ethics policy contacted the three granting councils to request clarification of the Tri-Council Policy Statement, we did so (see letter). The response clearly indicates that the Policy Statement does not subordinate ethics to law in the last instant.
Using this information and the lessons to be learned from Russel Ogden's successful defence of confidential research information using the Wigmore test, we recently published a paper entitled "Ethical and Legal Strategies for Protecting Confidential Research Information" (Canadian Journal of Law and Society, 15(1)39-80) that provides a blueprint for Canadian researchers to design their research so as to provide the best possible legal protections for their research participants. The article also outlines the ethics-first philosophy of research ethics, the ethical justification for refusing to yield confidential research information to court, and the problems created by a priori limitations of confidentiality.
In October 2000, when the URERC posted the minutes from their July 2000 committee meeting, it became apparent that the URERC had substantively changed the SFU ethics policy once again. With the issue of "limited confidentiality" resolved as it pertains to the possibility of court orders for disclosure, the URERC's newest policy involves the imposition of limitations on confidentiality for the situation where a researcher hears about any harm that may be done to a third party. The minutes describe it as follows:
The Committee agreed that if the researcher receives information obtained from the subject, which reveals that harm will be done to an individual, this information must be reported to the authorities immediately (July 4th, 2000 minutes).
Like "limited confidentiality" before it (see above), the URERC's "duty to report" policy marks another substantive change to R20.01. The URERC does not have jurisdiction to substantively change this policy. Further, the policy change is ill-advised for several reasons: (a) it violates disciplinary standards and thereby infringes academic freedom; (b) is inconsistent with principles laid out in Canadian common law; (c) takes a formulaic approach to a complex ethical issue; (d) may create legally actionable harms to participants, in contrast to our ethical obligation to protect them; (e) and is impractical not only because of its broad inclusiveness, but also because of the absence of ethical guidelines for its realization (e.g., advice as to how researchers can determine whether a threat is a "fantasy" or "real").
This change in policy, coupled with the URERC's and VP-Research's continuing violations of the existing policy, which were drawn to the university administration's attention more than two years ago (see Lowman & Palys, 1998, The History of Limited Confidentiality at SFU), make it clear there are still two sets of rules at SFU -- one for faculty members and other researchers, who must follow the university's policies and are subject to disciplinary action if they do not, and another for administrators, who apparently can do what they like, and administer by fiat.
University Policy A30.01 (SFU Code of Faculty Ethics and Responsibilities) says that faculty, "have a responsibility to abide by the rules and regulations established for the orderly conduct of the affairs of the University, provided that the rules and regulations do not infringe the academic freedom of faculty and students..." For several years the VP-Research and URERC have not abided by the rules and regulations specified in the university ethics policy (R20.01), and, instead, have applied it in a way that infringes academic freedom and the URERC's duty to fairness. Because they continue to do so, on 31 October 2000 the two of us invoked policy A30.01 and are refusing to undergo ethics review until the university formally resolves the eight problems we outlined in a letter to President Blaney. Dr. Blaney's reply (dated 27 November 2000), agreed that most of our concerns were well-founded, and ordered the VP-Research and URERC to stop violating the ethics policy.