Protecting Research Confidentiality : Towards a Research-Participant Shield Law

Canadian Journal of Law and Society

Volumn 21, Issue 1, 2006, Pages 163-185

  Palys, Ted ^a   Lowman, John ^a  

^a SIMON FRASER UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38049047128     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1353/jls.2006.0040     Document Type: Article

References (78)

1. Canadian Institutes of Health Research, Natural Sciences and Engineering Research Council of Canada, Social Sciences and Humanities Research Council of Canada, Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (1998) at i-5 (with 2000, 2002 and 2005 amendments), online: Interagency Advisory Panel on Research Ethics [TCPS].
2. R.S., 1985, c. C-5.
3. R.S., 1985,c.S-19.
4. R.S. s. 18.
5. TCPS, R.S. 1.
6. For an overview of challenges that have occurred in the United States and Canada, see J. Lowman & T.S. Palys, “The Ethics and Law of Confidentiality in Criminal Justice Research: A Comparison of Canada and the United States” (2001) 11 Int'l Crim. Just. Rev. 1 [Lowman & Palys, “Confidentiality in Criminal Justice Research”].
7. For example, the TCPS, R.S. 1, asserts that, “[t]he researcher is honour-bound to protect the confidentiality that was undertaken in the process of free and informed consent, to the extent possible within the law. The institution should normally support the researcher in this regard (…).”
8. See Social Sciences and Humanities Research Ethics Special Working Committee (SSHWC), Reconsidering Privacy and Confidentiality in the TCPS: A Discussion Paper (2005), online: Interagency Advisory Panel on Research Ethics
9. See J.H. Wigmore, A Treatise on the System of Evidence in Trials at Common Law, Including the Statutes and Judicial Decisions of All Jurisdictions of the United States, England, and Canada (Boston: Little, Brown and Company, 1905).
10. For a discussion of the application of the Wigmore test to the researcher-participant relationship see T.S. Palys & J. Lowman, “Ethical and Legal Strategies for Protecting Confidential Research Information” (2000) 15 C.J.L.S. 39 [Palys & Lowman, “Ethical and Legal Strategies”]
11. T.S. Palys & J. Lowman “Anticipating Law: Research Methods, Ethics and the Common Law of Privilege” (2002) 32 Soc. Method. 1 [Palys & Lowman, “Anticipating Law”].
12. Inquest of Unknown Female (1994) Vancouver Regional Coroner, Burnaby, B.C., Decision 91–240–0838 [Inquest].
13. Palys & Lowman, “Anticipating Law”, Inquest of Unknown Female 9
14. J. Lowman & T.S. Palys “Subject to the Law: Civil Disobedience, Research Ethics and the Law of Privilege” (2003) 33 Soc. Method. 381 [Lowman & Palys, “Subject to the Law”].
15. See Palys & Lowman, “Ethical and Legal Strategies”, Soc. Method 9.
16. S. Edwards, “Freed Reporter Talks to CIA Leak Inquiry” Vancouver Sun (1 October 2005) A15.
17. Jaffee v. Redmond, 518 U.S. 95 (1996).
18. U.S., at 27.
19. See J. Lowman & T. S. Palys, “Ethics and Institutional Conflict of Interest: The Research Confidentiality Controversy at Simon Fraser University” (2000) 2 Soc. Practice: Am. J. of Clin. & Applied Soc. 245 [Lowman & Palys, “Institutional Conflict of Interest”].
20. See B. Clayman “The Law of the Land” Simon Fraser News (30 October 1997) 5.
21. For a similar statement to therapists advocating they limit confidentiality, see J. Ogloff “New threats to confidentiality safeguards” Psynopsis (1996), online: Canadian Psychological Association .
22. TCPS, Psynopsis 1.
23. Unpublished Memorandum, Psynopsis 18.
24. TCPS, Psynopsis 1.
25. In criminology, see e.g., M. Wolfgang, “Criminology: Confidentiality in Criminological Research and Other Ethical Issues” (1981) 72 J. Crim. L. & Criminology 345.
26. Even now, the code of ethics of the Academy of Criminal Justice Sciences asserts that, “Confidential information provided by research participants should be treated as such by members of the Academy, even when this information enjoys no legal protection or privilege and legal force is applied.” See Academy of Criminal Justice Sciences, Code of Ethics, s. B-19, online: ACJS .
27. See Palys & Lowman, “Ethical and Legal Strategies”, Code of Ethics 9.
28. Richards of Rockford v. Pacific Gas and Electric, 71 F.R.D. 388 (N.D. Cal. 1976)
29. J. Caroll & C. Knerr, “Confidentiality of Social Science Research Sources and Data: The Popkin Case” (1973) 6 Pol. Sci. Q. 268
30. In re Michael A. Cusumano & David B. Yoffie (United States of America v. Microsoft Corporation), no. 98–2133, (1st Cir. 1998), online:Emory School of Law .
31. R. Leo, “Trial and Tribulations: Courts, Ethnography, and the Need for an Evidentiary Privilege for Academic Researchers” (1995) 26 Amer. Sociologist 113 [Trial and Tribulations].
32. In re Grand Jury Subpoena Dtd. January 4, 750 F.2d 223 (2nd Cir. 12/13/1984)
33. M. Brajuha & L. Hallowell, “Legal Intrusion and the Politics of Field Work: The Impact of the Brajuha Case” (1986) 14 Urban Life 454.
34. See R.J. Reynolds Tobacco Co., v. Fischer, 427 S.E.2d 810 (Ga. Ct. App. 1993)
35. P.M. Fischer, “Science and Subpoenas: When Do the Courts Become Instruments of Manipulation?” (1996) 59 L. & Contemp. Probs. 159.
36. In re Grand Jury Proceedings. James Richard Scarce, 5 F.3d 397 (9th Cir. 09/17/1993)
37. R. Scarce, “(No) Trial (But) Tribulations: When Courts and Ethnography Conflict” (1994) 23 J. Contemp. Ethnography 123
38. R. Scarce, “Good faith, bad ethics: When scholars go the distance and scholarly associations do not” (1999) 24 L. & Soc. Inq. 977.
39. It is noteworthy that three of these four cases (Leo at Berkeley; Brajuha at SUNY-Albany; and Scarce at Washington State) involved graduate students. Ogden's experiences at SFU and Exeter arose when he was a graduate student as well. The TCPS (L. & Soc. Inq. I) neither makes a distinction between the ethical responsibilities of graduate students and faculty members, nor in its admonition that research confidentiality should be defended.
40. M. Traynor, “Countering the Excessive Subpoena for Scholarly Research” (1996) 59 L. & Contemp. Probs. 119.
41. See Ogden v. Simon Fraser University, [1998] B.C.J. 2288, Burnaby Registry No. 26780, online: Simon Fraser University
42. see also N. Blomley & S. Davis, Russel Ogden, Decision Review: A Report to the President of Simon Fraser University (British Columbia: Simon Fraser University, 1998), online: Simon Fraser University .
43. K. Lemon “Secret Files, Subpoena and Suicide” The Peer Review (2005, 2:1), online: TPR .
44. TCPS, The Peer Review 1.
45. The Peer Review.
46. See Inquest, The Peer Review 10
47. see also Lowman & Palys, “Institutional Conflict of Interest”, The Peer Review 16.
48. This is in part because the U.S. Supreme Court has yet to hear a case involving a claim of research-participant privilege, and it is only that Court that can create a binding recognition of privilege, as they did in Jaffee v. Redmond (The Peer Review 14) for the therapist-client relationship; the highest level courts involved in adjudications regarding research participant privilege have been District Courts of Appeal. Also, the advent of Confidentiality Certificates and Privacy Certificates has likely had the effect of dissuading third party challenges to the research that they protect.
49. Lowman & Palys, “Confidentiality in Criminal Justice Research”, The Peer Review 6.
50. See the 2002–2003 Annual Report of the Office of the Information Commissioner of Canada, particularly Chapter 1: “20th Anniversary Year in Review, B. Privacy vs. Openness–Census Records”, online: Office of the Information Commissioner .
51. Canada Evidence Act, R.S.C. 1985, C-5. Section 10 states, “[n]othing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) a record made in the course of an investigation or inquiry; (ii) a recordmade in the course of obtaining or giving legal advice or in contemplation of a legal proceeding; (iii) a record in respect of the production of which any privilege exists and is claimed; or (IV) a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record; (b) any record the production of which would be contrary to public policy; or (c) any transcript or recording of evidence taken in the course of another legal proceeding.”
52. Articles that argue for the establishment of what has variously been described as an “academic privilege” or “researcher's privilege” include Leo, see Trial and Tribulations, R.S.C. 25
53. F. Levine & J.M. Kennedy, “Promoting a Scholar's Privilege: Accelerating the Pace” (1999) 24 L. & Soc. Inq. 967 [Levine & Kennedy, “Promoting a Scholar's Privilege”]
54. R.H. McLaughlin, “From the Field to the Courthouse: Should Social Science Research be Privileged?” (1999) 24 L. & Soc. Inq. 927 [McLoughlin, “From the Field to the Courthouse”]
55. R.M. O'Neil, “A Researcher's Privilege: Does any Hope Remain?” (1996) 59 L. & Contemp. Probs. 35 [O'Neil, “A Researcher's Privilege”].
56. L.E. Wolf, J. Zandecki & B. Lo, “The Certificate of Confidentiality Application: A View from the NIH Institutes” (2004) 26 IRB: Ethics & Human Res. 14.
57. See National Institutes of Health, “Certificates of Confidentiality Kiosk” (2004), online: National Institutes of Health, Office of Extramural Research .
58. “Certificates of Confidentiality Kiosk”.
59. “Certificates of Confidentiality Kiosk”.
60. People v. Newman, 32 N.Y. 2d 379.
61. 298 N.E. 2d 651.
62. 345 N.Y.S. 2dn 502 (1973).
63. See National Institutes of Health, “Certificates of Confidentiality Kiosk” (2004), online: National Institutes of Health, Office of Extramural Research .
64. National Institutes of Justice, “Privacy Certificate and Confidentiality Requirements of NIJ Funding” (2003), online: online: NIJ < http://www.ojp.usdoj.gov/nij/funding/human subjects/NIJ_peer_fillable.pdf >.
65. “Privacy Certificate and Confidentiality Requirements of NIJ Funding”.
66. For example, see Trial and Tribulations, “Privacy Certificate and Confidentiality Requirements of NIJ Funding” 25
67. Levine & Kennedy, “Promoting a Scholar's Privilege”, “Privacy Certificate and Confidentiality Requirements of NIJ Funding” 42
68. McLaughlin, “From the Field to the Courthouse”, “Privacy Certificate and Confidentiality Requirements of NIJ Funding” 42
69. O'Neil, “A Researcher's Privilege”, “Privacy Certificate and Confidentiality Requirements of NIJ Funding” 42.
70. See Lowman & Palys, “Confidentiality in Criminal Justice Research”, “Privacy Certificate and Confidentiality Requirements of NIJ Funding” 6
71. See also Palys & Lowman, “Anticipating Law”, “Privacy Certificate and Confidentiality Requirements of NIJ Funding” 9.
72. For more information on the Thomas Jefferson Researcher's Privilege Act, see The Library of Congress, online: .
73. The Library of Congress 5.
74. SSHWC, “Social Sciences and Humanities Research Ethics: Privacy and Confidentiality” (1 June 2005) (Annual Congress of the Canadian Federation of the Humanities and Social Sciences; University of Western Ontario, held in London, Ontario), online: Simon Fraser University .
75. T. Palys, Research Decisions: Qualitative and Quantitative Perspectives on Research. 3d ed. (Toronto: Thomson Nelson, 2003).
76. See, e.g., SSHWC, Giving Voice to the Spectrum (2004), online: Interagency Advisory Panel on Research Ethics .
77. See also Lowman & Palys, “Institutional Conflict of Interest”, Giving Voice to the Spectrum 16.
78. TCPS, Giving Voice to the Spectrum 1.