Research involving human participants sometimes involves asking people to share information that if disclosed to a third party could cause them serious harm. Researchers have an obligation to safeguard information that is entrusted to them and to use that information only for the purposes agreed to with the participant. The ability to promise confidentiality is crucial as this promise can enable researchers to gather data and information on sensitive or controversial topics and can be particularly important in studies that involve vulnerable or marginalized individuals/populations.
Conflict can sometimes arise for researchers when the ethical obligation to provide assurances of confidentiality is challenged by a legal obligation to disclose data pursuant to a court order. A researcher may identify the potential for a challenge to confidentiality when designing or planning the study or there may be an actual demand by third party sources to disclose data during the life of the study, after data is collected, or when disseminating the findings. In either case, legal advice may be needed.
The legal basis for protecting research data
Canadian law protects communications between individuals from forced disclosure in court under particular circumstances, called “privileges.” These are created either by statute or by belonging to a class of relationships that courts have determined merit special protection in the public interest. The best known class protection is lawyer-client privilege, which allows clients to confide in their lawyers for the purpose of obtaining legal advice. For example, communications between a researcher and their lawyer about how to protect the confidentiality of participants would be privileged and no court could force disclosure.
At present, there is no class protection for communications between researchers and their participants. In cases where there is no established privilege, the responsibility rests with the individual who receives a demand to persuade a court that their communications should be privileged under their particular circumstances. Courts make these decisions by applying a set of principles called the Wigmore criteria (see Appendix A).
It is critical that researchers are well informed from the outset about how to arrange their research protocols to make the case for protection of participant’s confidentiality. Appendix B contains some best practices for researchers who will be conducting human participant research. Depending on the nature of the research and the risk to confidentiality, researchers may need to obtain independent legal advice.
Canadian challenges to researcher-participant confidentiality
There have been three Canadian cases that have challenged researcher-participant confidentiality to date. In all cases, the researchers obtained approval from their institution’s research ethics board/committee on the basis the participant’s identity would not be revealed and their data would not be shared beyond the research team.
- The first case began in 1994 when Russel Ogden, an MA student at Simon Fraser University, conducted a study on assisted suicide. Ogden received a subpoena to appear before a coroner’s inquest. Ogden attended and was asked to reveal some of his sources. He was successful in making a claim to the inquest to have researcher-participant privilege recognized.
- The second case involved professors Colette Parent and Chris Bruckert from the University of Ottawa. They received a search warrant for access to the recording and transcript of an interview they had conducted in 2007 with an individual who was subsequently charged with murder in 2012. The interview material was surrendered to police in a sealed envelope with the promise that it would not be opened until a court ruled on the matter of researcher-participant privilege. The Superior Court of Quebec ultimately found a qualified privilege. The legal costs involved were substantial.
- The third case involved a then-doctoral candidate from the Université du Québec à Montréal, Marie-Ève Maillé, who tracked social disruption among residents of two small towns in the Arthabaska region east of Montreal over a proposed large-scale wind farm. The student interviewed 93 Quebec residents, all of whom signed university-approved consent forms assuring confidentiality. This provision was a condition of participation in the study for many residents. A Quebec Superior Court judge, who initially demanded that she turn her research materials over to the defense in a court case brought by a group of disgruntled residents who objected to the construction and operation of the wind farm, has now retracted his own decision. In his new ruling, the judge noted that Maillé’s promise of confidentiality met the four criteria of the “Wigmore” test for determining whether a communication is privileged.