Table of Contents *

How Important is Research Confidentiality? *

1) Liability Contaminates Research Ethics at SFU: A Preamble *

2) R20.01. Research Ethics Committee Composition and Quorum for Meetings *

3) The Imposition of Limited Confidentiality: Procedural Issues *

4) What Is "Limited Confidentiality?" *

5) The Problems With Limited Confidentiality *

6) The Limited Confidentiality Consent Form Prevails: The URERC’s Rationale *

7) Conclusion *

Appendix A: Dr. Hanson’s Memorandum Regarding the URERC Meeting of November 23, 1995 *

Appendix B: Memo to the URERC re Liability-Based Decision Making *

Appendix C: Is the Ethics Committee following SFU policy R20.01 as approved by Senate in 1992, or its own draft policy, created in 1994-1996? Some comparisons. *

Appendix D: Dickens’ Student’s Research Protocol *

Appendix E: The URERC Makes an Unauthorized Extension of its Power to include "Research Involving Personal Information On Human Subjects Held In Secondary Records That Are Not Available To The Public" *

Appendix F: The URERC Makes Another Substantive Change to the Research Ethics Policy by Giving the Faculty of Business Administration A Research Ethics Application Waiver *

Appendix G: "Implications of the Tri-Council Policy Statement for Balancing the Interests of Informed Consent and Confidentiality" *

Appendix H: An Improperly Constituted Ethics Committee *

We start our History of Limited Confidentiality at SFU by reviewing a case, decided within the last week, that pitted one of the most powerful corporations on earth, Microsoft Corporation, run by the wealthiest person on earth, Bill Gates, against two researchers from two of the world's most prestigious universities – Harvard and MIT. It is also the most recent case available regarding the protection of confidential research information from court-ordered disclosure and exemplifies many of the themes that pervade History of Limited Confidentiality at SFU.

The US Department of Justice is prosecuting Microsoft Corporation for allegedly violating anti-trust laws by engaging in unfair competitive practices. One area of Microsoft's practices being looked at is their effort to become dominant in the Internet browser market. Netscape got the head start with Netscape Navigator, and, at one time, held 80% of the market, compared to Microsoft's Internet Explorer, at 20%. More recent figures show a 50-50 split. The prosecution is arguing that Microsoft rose from 20% to 50% because of its predatory business practices; Microsoft argues it improved market share because of better business practice than Netscape, which made some significant blunders allowing Microsoft to increase its share of the market.

In the midst of this case Microsoft heard of a forthcoming book by Drs. Michael Cusumano (of MIT) and David Yoffie (of Harvard), entitled Competing on Internet Time: Lessons from Netscape and the Battle with Microsoft. As part of their research, Cusumano and Yoffie had interviewed 40 current and former employees of Netscape. Microsoft secured a prepublication draft of the book, and were titillated by what they saw. They wanted more, and subpoenaed Cusumano and Yoffie's tapes, notes, and transcripts, to get it.

We note first of all that MIT and Harvard did not abandon their researchers as SFU did to Russel Ogden – they appeared in court with their researchers to challenge the subpoena in the interests of preserving research confidentiality and academic freedom.

Most recently, the case was heard by the US Court of Appeals (First District), who, in their decision released last week,¹ note there is a huge amount at stake in this case – literally, hundreds of millions, if not billions, of dollars. And, as the court explained, there is much on the Microsoft side of the balance: Microsoft's need for Cusumano and Yoffie's research information was recognized as "substantial" in terms of its utility to their defense in the anti-trust case. The court notes also that Microsoft was specific in their request and not simply engaged in a "fishing expedition." And, as the court writes:

It is also instructive to note that the legal position Microsoft's eight lawyers argued in trying to secure the information was to say that the communications between Cusumano and Yoffie and their research participants were not "really" confidential, and hence could not be considered privileged, i.e., they did not arise in a confidence that they would not be disclosed. As will become clear, this is a central issue relating to our opposition to "limited confidentiality" at SFU.

Notwithstanding all that is at stake for Microsoft, and the utility that access to the researchers' transcripts, notes, and tapes would have for them, the US Court of Appeals (First District) sided with Drs. Cusumano and Yoffie and their research participants. As the court writes:

And later in the decision:

We only wish that Simon Fraser University's VP-Research and the University Research Ethics Review Committee valued research as much.

"A promise which may or may not be kept is no promise at all"

SFU Research Ethics Policy (University Policy R20.01), states that: "In general, the primary ethical concerns respecting research on subjects relate to: informed consent; deception, privacy, confidentiality; and, anonymity." The University Research Ethics Review Committee (referred to hereafter as "the URERC," or "the Committee") administers the policy. The policy does not limit confidentiality, privacy or anonymity in any way. Nor does it authorize the VP-Research or the URERC to make substantive changes to the policy.

On the agenda of the September 9, 1994 meeting of the URERC, the VP Research, Dr. Bruce Clayman, included the subject of "limited confidentiality." Under the heading, "limited confidentiality," the minutes of the meeting include the following statement:

At a meeting on November 23, 1995, the URERC decided to require researchers collecting information from subjects about their criminal or other law breaking activity to use what we refer to below as the "limited confidentiality consent statement," which reads:

We believe that this limited confidentiality consent statement is unethical because it creates its own deception. Researcher-participant privilege is not explicitly recognized in Canadian law for anyone other than Statistics Canada researchers, who have been granted privilege in section 18 of the Statistics Act. Instead, to be considered privileged, research information must pass all four "Wigmore criteria," the common law test used by the Supreme Court of Canada for establishing privilege of communication on a case-by-case basis (R. v. Gruenke, 1991).³

Stating that the researcher might be "required" to divulge information to a court makes it impossible to pass the first criterion of the Wigmore test,⁴ which requires that a communication must arise in a confidence that it will not be disclosed. Because of the limited confidentiality statement warning about court-ordered disclosure, the court can simply say, "the research participant was told that a court might order the divulging of information, and it is ordering it now, so hand over the information." The limited confidentiality statement thus prevents the researcher from living up to the promise that information will be kept confidential "to the full extent permitted by law."

The Ogden case (described below) has revealed the extent to which it is possible to legally guarantee confidentiality, and that is "absolutely." But like anyone wishing to invoke the Wigmore test to prevent court-ordered disclosure of confidential information, Ogden had to be prepared to go the distance in court, should it be necessary, in order to protect research subjects and the integrity of the research enterprise.

In contrast, the limited confidentiality consent statement creates a situation where the receipt of a subpoena effectively becomes the limit of the law. By virtually guaranteeing that they cannot resort to the Wigmore test for protection, researchers give themselves and the University a license to hand over confidential information should a court ask for it.

Once limited confidentiality was in place, the university did not have to worry about the legal bills that a potentially lengthy (albeit extremely unlikely) court case might occasion. The a priori limitation of confidentiality thereby protects researchers and the university from liability, but does so only by undermining the participant’s right to assert privilege of communication in a situation where they have to rely on the researcher to assert that privilege for them. Instead of protecting participants, the a priori limitation of confidentiality exposes them to harm.

Over the past year we have written a series of articles⁵ criticizing the regime of "limited confidentiality" introduced in response to the Ogden case as it was unfolding in the summer of 1994. The URERC's minutes state that one of the reasons the Committee introduced limited confidentiality was to "protect the university" (Minutes of the URERC, September 9, 1994). From the very beginning, therefore, limited confidentiality was compromised by the institutional conflict of interest that exists when an Ethics Committee attempts to protect the university as well as protecting research participants. Indeed, as a child of the Ogden case, we suggest that the institution of limited confidentiality had much more to do with liability management than it did with research ethics (see Blomley and Davis, 1998).

Furthermore, we suggest that the a priori limitation of confidentiality represents an unauthorized substantive change to the SFU Research Ethics Policy (R20.01). This is all the more troubling when one realizes that the procedure used to implement limited confidentiality was seriously flawed. For example, at the URERC meeting where the decision was made to introduce the limited confidentiality consent form template, there was not even a quorum present.

On top of all this, the change the Committee wrought violates, in a fundamental way, the Research Ethics Policy approved by the Board of Governors in 1992 and it does not comply with other university policies and agreements (e.g., A30.01; R60.01; Framework Agreement). And SFU-style limited confidentiality will likely not be permissible when the Tri-Council Policy Statement comes into full effect.

Dr. Adam Horvath is the current Chair of the URERC. In 1995 he was a member of the Committee, and provided the wording for the limited confidentiality consent-form template. In an article published on the web site of the VP-Research,⁶ he claims that limited confidentiality has benign origins, and is merely a statement of risk, a necessary component of informed consent. His document represents the official history of limited confidentiality at SFU.

We suggest that the origins of limited confidentiality are far from benign. In this regard, we present evidence that directly contradicts some of Dr. Horvath’s key claims, particularly his claim that, "at no time did the URERC suggest, or imply that the researcher should provide [confidential] information to the court or anyone else."

We begin our history of limited confidentiality with some comments about: (a) the purpose of University Research Ethics Policy (R20.01); (b) Russel Ogden, the Criminology graduate student who was effectively abandoned by SFU when he was subpoenaed to appear in Coroner’s Court; and (c) the administrative culture of SFU, as exemplified by its reaction to the Ogden case.

The University Research Ethics Policy (R20.01) was approved by the appropriate university authorities, and implemented in 1992. In section 2, "Rationale," the policy notes that, "There is a professional responsibility of researchers to adhere to the ethical norms and codes of conduct appropriate to their respective disciplines." In addition to that disciplinary sensitivity, section 4, "Ethical Policy Considerations," asserts:

We note two important features of this policy: (1) it identifies a number of "primary ethical concerns," and hence a range of participant rights and interests that must be considered and maximized, including both informed consent and confidentiality; and (2) it contains no a priori limitation of confidentiality.

We have written at length about the conflict of interest that exists when administrators are made responsible for decisions about research ethics.⁷ The recent Tri-Council Policy Statement (Section 4C) expresses the same sentiment:

Under SFU Policy R20.01 the VP-Research appoints and chairs the Ethics Committee (or can delegate the Chair). If the VP-Research delegates the Chair, he/she hears appeals of negative decisions; if the VP-Research elects to Chair the Committee, the VP-Academic hears appeals. This administrative structure will no longer be allowed once the Policy Statement comes into effect.

If there is any doubt about the Tri-Council’s wisdom in this regard, we suggest that the institution of "limited confidentiality" at SFU is a classic example of the problems that can occur when a Research Ethics Committee does not operate at arms length from a University administration.

Russel Ogden is a former SFU Criminology graduate student whose thesis research involved the topic of assisted suicide among persons with HIV/AIDS. He knew that reliable and valid research regarding such persons – who could conceivably be charged with murder if their identities were known – would require the trust and confidence of his research participants. His proposal to the 1992 Ethics Committee indicated that he was prepared to pledge "absolute" confidentiality, a pact consistent with the ethical principles outlined in R20.01. His proposal was given ethics approval by the University Research Ethics Review Committee.

Following completion of the research, in February 1994, Ogden was subpoenaed to appear before Vancouver Coroner’s Court to ascertain whether he could throw light on the cause of death of an "Unknown Female." The Coroner thought that two persons who participated in Ogden’s thesis research on assisted suicide and euthanasia in the AIDS community might have been present when the Unknown Female died. As far as we can ascertain, Ogden is the only Canadian researcher ever to have been asked by a court to divulge confidential information.

Because Ogden had promised absolute confidentiality to his research participants, he refused to divulge confidential information and was promptly charged with contempt of court. Although the URERC had approved Ogden’s research protocol, the University administration declined to appear in Coroner’s Court to defend academic freedom and the URERC’s decision to approve Russel Ogden’s research protocol (the University gave Ogden $2000 on "compassionate grounds," which he put toward the roughly $11,000 legal bill incurred by his defense of academic freedom and the SFU research ethics policy). The University left it almost entirely to Ogden to protect his research participants from the harm that would likely befall them should he disclose the confidential information they had provided under a promise of "absolute" confidentiality. In his defence, Ogden successfully argued that his communications passed the Wigmore test, which lays out the criteria required to establish, "a privilege against disclosure of communications between persons standing in a given relation" (see footnote )

Over the past ten years a developing literature has charted the way western culture is more and more organized around the concept of "risk." In academe, there has been a gradual shift away from the old-style positivist conceptualization of "causality" to a more instrumental concern with probability and the calculation of risk. Risk logic has become a core component of state activity (unemployment, health and welfare insurance, etc.) and of the operation of civil society (insurance and various risk-reducing technologies related to health and crime). Policing and other social control institutions are now organized around risk logic, and much of their activity is devoted to producing information about risk.

Not surprisingly, as well as describing these developments the academic enterprise is also affected by them, and it is in these terms that we can begin to understand the administrative culture not only at SFU, but at Canadian universities in general. Being responsible for the dispensation of public monies, university administrators are concerned about spending those monies wisely, as obviously they should be. But sometimes, concern about risk can subvert other cherished academic values, not the least being academic freedom and the ethical obligations we have to research participants. We suggest that is precisely what happened at SFU when liability considerations began to contaminate the research ethics application procedure.

"Limited confidentiality" is the one unresolved issue remaining from the Russel Ogden case. Blomley and Davis (1998) assert that the University viewed the Ogden case primarily, "as a negative issue, the concern seemed to be that of limiting any legal obligation to Ogden and by extension to anyone in the future in a similar position" (emphasis added). The institution of "limited confidentiality," which occurred at the behest of the VP-Research represents the extension of what we might call the University’s "Ogden risk logic" to all those engaged in criminological research who might find themselves subpoenaed.

Its defenders maintain that "limited confidentiality" is only about warning prospective research participants about risk. We think otherwise because:

1. The minutes of January 19, 1994 URERC meeting indicate that liability considerations, including liability "waivers," were openly discussed at a URERC meeting;
2. The minutes of the URERC's September 9, 1994 meeting, at which limited confidentiality was adopted, clearly state that one of the reasons for "limited confidentiality" was to "protect the university," thereby creating a real institutional conflict of interest;
3. "Limited confidentiality" does not protect research participants to the full extent permitted by law; instead, it actually exposes research participants to harm;
4. We have evidence that the URERC has not advised researchers that they have the option to fight a subpoena, and even defy a court order;
5. For properly informed consent, the researcher must tell the participant whether they and the university intend to vigorously resist court-ordered disclosure of confidential research information.

We contend that limited confidentiality was an extension of the same logic that administrators used to justify abandoning Mr. Ogden. It embodies the very same principles of liability- and image-management adopted by then-President Stubbs and Vice-President Clayman as displayed in their testimony in Small Claims Court when Mr. Ogden sued the university for his legal fees.

Consequently, we suggest that the damage done to the research enterprise at SFU by the administration’s treatment of Mr. Ogden will not be complete until the University has abandoned the "limited confidentiality" consent form template that is still being used at SFU.

Our submission to the SFU Ethics Revision Task Force brings together all the documentary evidence we have been able to compile regarding the advent and implementation of limited confidentiality, and particularly of the limited confidentiality informed consent statement. The remainder of this submission describes the procedural irregularities that have characterized the process whereby the VP-Research and URERC unilaterally changed the SFU research ethics policy, and demonstrates the damage done to qualitative criminological research in the process.

The submission comprises seven sections. Section 1 describes the institutional conflict of interest that underlies "limited confidentiality" at SFU. Section 2 describes key SFU Research Ethics Policy procedures as a background for Section 3, which identifies the procedural errors that occurred during the institution of limited confidentiality for researchers studying self-disclosed criminal and other law-breaking activity. Section 4 discusses the meaning of "limited confidentiality," and the problems that occur when mandatory reporting requirements and court-ordered disclosure are conflated. In Section 5 we explain how, by imposing the policy of limited confidentiality, the VP-Research and URERC have exposed research participants to harm and infringed the academic freedom of researchers – actions that we believe stand in violation of SFU policies R20.01, R60.01, A30.01 and the SFU Framework Agreement. Section 6 describes the URERC’s and the University’s response to two of our own ethics applications which, after a year of debate about limited confidentiality, the URERC refused to approve. Again, we suggest that the Committee’s actions stand in violation of SFU policies R20.01, R60.01, A30.01 and the SFU Framework Agreement. Embedded in this discussion is the URERC's most recent twist to its "law of the land" regime: allowing unlimited confidentiality only when the researcher who proposes it agrees to shoulder sole responsibility and liability for maintaining it. In Section 7 we conclude by asking if there are two standards at SFU, one for researchers, and the other for administrators and the URERC.

Before we embark on this analysis, it is important to bear in mind what the 1992 SFU Research Ethics Policy says about URERC membership and the quorum for meetings.

We have examined minutes for all URERC meetings from January 19, 1994 through to October 7, 1998 (Table 1).⁸

When it comes to evaluating applications, R20.01 (section 6(f)) empowers the Chair to:

1. grant approval of the proposal on behalf of the Committee;
2. circulate the request to the Committee or a sub-committee thereof for members advice before granting approval
3. seek advice from outside the Committee, and
4. call the Committee together, with or without advisors, to consider the request for approval and to reach a decision.

There is no record in any of the minutes from January 1994, onward of a sub-committee being struck to advise the Chair about particular applications. We do not know how often the Chair circulated applications to the Committee when granting ethics approvals, but former representatives on the URERC suggest he rarely did this.

From January 1992 to October 1997 there were eight meetings, an average of just under 1.5 meetings per year. Throughout this six-year period, during which time at least 1,000 and perhaps as many as 2,000 ethics applications have been processed, the Office of the VP-Research handled all but two research ethics applications on behalf of the URERC without discussing the cases at Committee meetings.

The monthly meetings from November 1997 onward began when we challenged the propriety of the URERC’s decision-making. Over the past year, the minutes reveal that only three cases were discussed at Committee meetings, two of which were ours.

When it comes to evaluating research ethics applications and communicating with applicants, the Office of the VP Research effectively is the "University Research Ethics Committee." Committee members are rarely involved in the application approval process.

After many years as Dean of Graduate Studies (a position he still holds), Dr. Bruce Clayman became Vice President of Research in 1993. One of the responsibilities of the VP-Research is to implement R20.01, the policy on University Research Ethics.

Policy R20.01 gives the VP-Research the option of serving also as Chair of the URERC. Although, to our knowledge, he has never conducted any research with human subjects, Dr. Clayman exercised that option and became Chair of the Ethics Committee when his appointment as VP-Research began. He continued in that capacity until February 1998, when he resigned in recognition of the institutional conflict of interest that exists when an administrator, in this case, the VP-Research, also Chairs the Ethics Committee.⁹

In his first year as Chair of the URERC, two troublesome cases crossed Dr. Clayman’s desk. Both were inherited from his predecessor, Dr. William Leiss. The first involved a research project on "Adaptive Response to Exercise and ACE-Inhibitor in Hypertensive Subjects," funded by Parke-Davis Pharmaceuticals. The second was the Russel Ogden case.

The university administration's decision-making with regards to Russel Ogden from March through July 1994, and particularly the decision that the university would not stand beside him in court, has been analyzed in detail by Drs. Blomley and Davis (1998), at the behest of SFU President Jack Blaney, in a report entitled Russel Ogden Decision Review. Before we review the importance of the Ogden case for understanding the impetus behind limited confidentiality at SFU, some comments on the URERC’s processing of the ACE-inhibitor research are in order, because they provide concrete evidence of the contamination of SFU's research ethics review procedures by liability considerations.

By the time the URERC held its meeting of January 19^th, 1994, the Kinesiology ACE-inhibitor research had been under discussion by the URERC for at least six months. The minutes of the January 1994 meeting reveal that extra-ethical criteria were being considered as part of the ethics approval process. For example,

We mention the case simply to make the point that, by the time the Russel Ogden case landed on the VP-Research's table, the URERC's intermingling of ethics issues with liability considerations was already established.

The first time the VP Research raised the issue of limited confidentiality with the URERC was on September 9, 1994, just after Russel Ogden appeared in Coroner’s Court, but before the Coroner decided that Ogden’s communications with his participants did, indeed, satisfy the Wigmore criteria. The Administration’s reaction to Russel Ogden tells us much about the logic the VP Research brought to the URERC when he included "limited confidentiality" on the agenda of the September 9^th meeting.

Blomley and Davis show the chronology of "the Russel Ogden decision" as follows:¹⁰

In order to understand something of the administrative culture that was operative during that time period, the Blomley and Davis analysis of how the university administration framed the issue is worth reproducing at some length:

Dr. Clayman has been a consistent supporter of the University’s decision to effectively abandon Ogden’s research participants when the Coroner subpoenaed Ogden in pursuit of confidential research information. Dr. Clayman’s support of the decision was clearly evident in his "reconsideration" of the Ogden case at Dr. Blaney's behest in the fall of 1997, his "Law of the Land" article in the October 30, 1997, issue of Simon Fraser News, and, more recently in his September 24, 1998, letter in Simon Fraser News:

Independent observers, like Judge Steinberg (Russel Ogden v. SFU) and Blomley and Davis, leave a different impression. The University was "wrong" and "unethical" to conceptualize "the problem" entirely in terms of liability and public relations issues. According to Blomley and Davis, academic freedom and research ethics did not figure in the University’s decision.¹¹

The first URERC meeting after the series of Presidential Advisory meetings that culminated in the university's decision not to appear in Coroner's Court to defend the SFU Research Ethics Policy and academic freedom was only a few weeks later, on September 9, 1994. Dr. Clayman added the topic of "limited confidentiality" to the agenda.

The URERC was not properly constituted at the time of its September 9, 1994 meeting: The minutes indicate there were only three faculty members on the Committee – there should have been six – and only two attended the meeting.¹² The meeting went ahead anyway.

Under agenda item 4, "Limited Confidentiality Issues," the minutes say:

We do not know how many ethics applicants have answered affirmatively to "question 9" since it was added to the application checklist. Apparently, there were several such applications from the School of Criminology. However, there is no indication in subsequent minutes that the URERC met to discuss any of these applications. We believe that these applications have not gone before the full Committee, as the Committee's own procedures required, but have been handled by the VP-Research on behalf of the Committee. Since October 1997 when we raised our objections to limited confidentiality, only three "question 9" cases were referred to the full Committee for approval. Two of those are ours, and the other is reported in the April 7, 1998 minutes. We know there have been others, but apparently the Committee did not review them.

According to R20.01, section 4:

The minutes of the September 9^th 1994 meeting show that, in the process of limiting confidentiality, the Committee expanded the formal objectives of ethics review to include protection of the researcher and the University. This decision exceeds the URERC’s mandate as spelled out in R20.01 section 4. From the point the URERC decided to use the ethics review process to "protect the researcher and the university," a demonstrable conflict of interest has tainted URERC decision-making.

This is the key meeting in terms of the "limited confidentiality consent statement." According to Dr. Clayman’s account, "The university research ethics review committee approved a large number of proposed changes to the policy in 1995."¹³ Given that the URERC met only once in 1995, Dr. Clayman must be referring to the meeting on November 23rd.

Six people attended that meeting, including two staff members of the Office of the VP-Research. The four Committee members were: Bruce Clayman, VP-Research and URERC Chair; Dr. Horvath (faculty); Dr. Wexler (faculty); and Dr. Hanson (faculty).¹⁴  A Chair and four members are required for a quorum; ergo, there was no quorum at the meeting where the limited confidentiality consent statement was instituted.

Dr. Hanson (Philosophy) was a new appointee to the URERC, and this was his first meeting. Prior to the meeting, he was provided with a copy of the September 9, 1994 minutes, where the VP-Research had first broached the subject of "causing the researcher to provide limited confidentiality." We have attached a copy of Dr. Hanson’s account of this first meeting (Appendix A).

It is important to put agenda Item 6 from the November, 1995 meeting, "Consent Form – ‘Illegal’ Activities" in context by noting that several agenda items relate to wording changes being proposed for input to the draft policy, which was the main subject of this meeting. Other proposed wording changes for the Draft Policy had also been discussed at the previous URERC meeting on December 2, 1994.

Item 6 also concerned wording changes for the draft policy. The November 25, 1995, minutes read:

Under Item 9, "Approval of Revised Policy R 20.01" the minutes conclude:

We do not know if the VP-Research contacted Dr. Corrado, but we do know that Dr. Corrado resigned from the URERC at about this time (the next meeting was on June 11, 1996, at which time his resignation was recorded in the minutes). Dr. Corrado has since told us that both he and Dr. Harmon took the position that all wording changes that involved a major change in policy, such as the change from "confidentiality" to "limited confidentiality," needed to be discussed by the SFU community and approved by Senate and the Board of Governors before being put into effect. This is consistent with the account of Dr. Hanson, a participant at that meeting (see Appendix A).

The wording that was provided by Dr. Horvath shortly after the meeting, which is still used to this day, is as follows:

For reasons we have already explained (see footnote ) and as we elaborate below, we believe that this limited confidentiality statement is unethical and creates its own deception – stating that the researcher might be "required" to divulge information makes it impossible to live up to the promise made in the opening statement, i.e., that information will be kept confidential "to the full extent permitted by law." With liability thereby downloaded to the participant, and a victory in court made virtually impossible, it also gives both researchers and the university license to treat "receiving a subpoena" as the limit of the law.

In spring 1996, a "Draft Policy," including a "confidentiality to the extent permitted by law" provision, was posted on the SFU web site, as if it were the university's ethics policy, and as if it were in effect. However, the URERC's self-initiated policy revision process was interrupted in 1996 when the Tri-Council Working Group (TCWG) released its first Draft Code of Ethics for research involving human participants, and Canadian universities were put on notice of this development. This was discussed at a meeting of the URERC on June 11, 1996, at which time, as the minutes show,

Contrary to the apparent wishes of the URERC, however, the draft policy was left on the university web page and continued to be implemented. We know the draft policy was still posted on the web page in October 1997. And although that version of the policy was removed from the university web site some time thereafter, the limited confidentiality requirement and associated informed consent template still appear on the site, and in the hard copy material available from the Office of Research Services. It appears that the URERC has been following the draft policy since November 1995, and that it has survived the transition of the Chair from Dr. Clayman to Dr. Horvath. Indeed, in a communication to us in December 1997, Dr. Horvath, then a URERC member, quoted the draft policy to us instead of the real policy, in response to our suggestion that, by limiting confidentiality, the URERC had substantively changed the ethics policy.

The VP-Research thus appears to have been acting on his own when (we presume) he authorized the URERC's Draft Policy to appear instead of "the" Ethics Policy on the VP-Research web page. Given that a huge percentage of applications are dealt with in his office, at his instruction, the implication is that Dr. Clayman and his office staff were running ethics at SFU on the basis of the URERC's draft policy, apparently with no authority but Dr. Clayman's.

As a point of fact, neither the VP Research nor the URERC are authorized to substantively change the SFU research ethics policy. The Committee’s awareness that it does not have this authority is evident in the minutes of the URERC meeting of January 19, 1994. Under agenda item 2, "Student and Faculty Approval Letters," the URERC decided that a time limit should be added to letters of approval, with student approvals being effective for 24 months from the date of approval, while faculty approvals would be effective for 3 years from the date of approval. This relatively benign change is followed by an "Action" entry:

At the very least, limited confidentiality should have gone through this same process.

We argue that the change from "confidentiality" to "limited confidentiality" involved a substantive change to the ethics policy by the URERC. Drs. Horvath and Clayman have denied this, insisting that it is no more than a "procedural" change (although we wonder how this could be considered to be a more trivial change than the one regarding research time limits – see section 3.viii above).

Although we continue to believe it is virtually self-evident that the change from "confidentiality" to "limited confidentiality" constitutes a substantive change to the policy, there are at least three ways to determine empirically whether the change is "procedural" or "substantive." All assume that "procedural" changes should not have any significant material effect on the sorts of research that are approved by the Committee, while "substantive" changes would have a substantial effect. If research that could be approved prior to the change could no longer be approved after the change, for example, then clearly the change is de facto "substantive."

One clear indication that the Committee's changes to the policy are substantial is evident in the Committee's minutes for the meeting of September 9, 1994, at which the Committee first discussed the limitation of confidentiality. The minutes state:

This entry shows that the Committee anticipated their change would have a material effect on the research that could be conducted, i.e., that the nature of this change was substantive.

The current version of R20.01 took effect on October 1, 1992, and does not limit confidentiality in any way. On March 9, 1993, Lowman submitted an ethics application to conduct a "case history of a Canadian pimp," a man who, amongst other things, ran several escort agencies. At that time, all proposals to the URERC required a signed agreement, "to maintain in strict confidence the responses of individual subjects." No a priori limitation of confidentiality was made. The application was approved on April 6, 1993 – less than a month later.

On December 1, 1997 a second research proposal was submitted to repeat the study with several subjects, including owners and managers of escort services, body rubs and massage parlors.¹⁵ Again, the applicant (Lowman) agreed, "to maintain in strict confidence the responses of individual subjects." Roughly 48 weeks later, the URERC still refused to approve this proposal, despite its substantive similarity with the proposal submitted and approved in 1993. A second proposal, this one by Lowman and Palys to study sex work in off-street venues, was submitted on February 24, 1998. The URERC did not approve this proposal either, again because of problems related to the informed consent statement. Once again, the evidence is consistent with the view that the Committee's change to the policy was substantive, and not merely "procedural."

A third way to address the question of whether the Committee's changes are merely "procedural" or "substantive" focuses on the basis of the disagreement that exists between the URERC and the two of us with respect to our two ethics applications that, after eight and eleven months of dialogue, were not approved. We suggest that the disagreement is rooted in the conflict between our belief that we are ethically obliged to provide confidentiality as R20.01 requires, while the URERC required us to limit confidentiality in a manner consistent with their decision at the meeting of November 23, 1995. If the difference between these two positions is a relatively trivial procedural one, then why were our proposals not approved? We suggest it is because the difference between our positions is not trivial at all – it is a substantive and substantial one.

Having drafted a new policy, and without obtaining appropriate university approvals, Dr. Clayman and the URERC apparently proceeded to abandon the version of R20.01 approved in 1992, and to enforce their own policy instead. But did the URERC have the authority to impose its "limited confidentiality" doctrine on other researchers at SFU? We believe it did not. And although Dr. Clayman has never retracted his view that the changes the URERC wrought are nothing more than procedural, and that the URERC was thus authorized to make them, the written record of that meeting gives a different view. At least three URERC members understood that approval from authorities beyond the Ethics Committee was required before any changes became "official."¹⁷

When we wrote our first brief in this lengthy debate to President Blaney in November, 1997, we had no idea how fitting its title – SFU's Ethics Committee: A Law Unto Itself – would turn out to be. In the present submission, The History of limited Confidentiality at SFU, we show that the URERC has, in its imposition of limited confidentiality, repeatedly violated policy and procedure. We close this section by noting that these violations are not limited to the regime of limited confidentiality. In the process of examining the archival evidence regarding the imposition of limited confidentiality at SFU, we became aware of other ways in which the VP Research and URERC have made unauthorized unilateral substantial changes to the research ethics policy.

• We made the point in Section 3.vii above that, even though it never sought, and hence never received, approval from appropriate university authorities, the URERC began treating its Draft Policy as if it were the real SFU Research Ethics Policy. Certainly this was evident in the placement of the Draft Policy on the web page of the VP-Research, so that researchers who downloaded ethics materials would receive the Draft Policy, not the real Policy. It was also evident when, in December 1997, we informed the URERC that its imposition of limited confidentiality was contrary to, and a substantive change to, the SFU Ethics Policy. Dr. Horvath actually quoted the limited confidentiality section of the Draft Policy to us to justify the Committee’s use of the limited confidentiality consent form (see his December 1997 document, "Response to ‘When Roles Conflict [etc.]’"). In Appendix C, we show several other comparisons between the real R20.01, and the URERC's Draft Policy, that are consistent with the view that the URERC has been implementing its own Draft Policy for some time, and, in many respects, has continued to do so.
• The URERC has enforced other provisions of the "Draft Policy" as if it were in effect. Recently, for example, Dr. Horvath sent a memo to Deans, Associate Deans, Chairs and Directors reminding them that research involving "use of existing data that are not normally available to the public" requires URERC approval. R20.01 does not include "existing data that are not normally available to the public." A more detailed discussion of this change is included in Appendix E.
• Under R20.01, the URERC does not have the authority to delegate authority for ethics review. However, at the behest of the VP Research, the URERC issued what is effectively a "research ethics application waiver" to the Faculty of Business Administration. Apparently, Business Administration researchers are no longer required to submit applications through the URERC, except in those cases where they deem an application to violate R20.01. As a faculty member from Business Administration was involved in the creation of the Draft Policy and attended the meeting where limited confidentiality was introduced, we wonder if Business Administration is following the actual policy or the Draft Policy. A discussion of this unauthorized change to the policy is included in Appendix F.
• At various times the URERC was improperly constituted because there was an insufficient number of faculty appointed to the Committee, and because there was no medical practioner assigned to the Committee (the policy requires that the Director of Health Services be appointed to the Committee). We drew these procedural problems to the attention of President Blaney (Appendix H), who dismissed our concerns. In light of the additional procedural problems that we have described in this submission, we anticipate that the President will re-evaluate the importance of these already demonstrated procedural transgressions.

As a whole, we believe the record shows that the VP Research has systematically disregarded university research ethics policy and procedure. In the case of limited confidentiality, the departure from policy has profoundly affected our academic freedom to engage in research.

From what we understand of the position espoused by Drs. Clayman and Horvath, limited confidentiality emerges from and is justified by two basic ideas. The first of these is that confidentiality is somehow "naturally" limited. The second is that the limited confidentiality consent statement is nothing more than a statement of risk, and that the role of the ethics committee is to ensure that prospective participants are warned of all risks that might affect them. We consider each of these justifications in turn.

The URERC adopted a position statement at its meeting of June 2, 1998 which is the clearest statement of the view that confidentiality is "naturally limited." We had asked the Committee to decide what exactly it would do in the event that a researcher was subpoenaed. The statement they offered was the following:

But in what sense is it "naturally" limited? Whenever we asked Dr. Horvath and Dr. Clayman about this issue, the examples they cite are examples that are subject to mandatory reporting, or at least what they believe are mandatory reporting situations. For example, in a recent article in the Georgia Straight,¹⁸ Dr. Clayman is quoted as saying that the recently released Tri-Council Policy Statement supports the notion of limited confidentiality:

Similarly, in Dr. Horvath’s history of limited confidentiality, posted on the university's web page,¹⁹ the URERC Chair states:

The difficulty with these two statements is that, (a) they involve a change of subject; and (b) if they are really the authors' concerns, the URERC has adopted a peculiar and ineffective way of dealing with them. The "change of subject" is understood by distinguishing the topic of "court-ordered disclosure" in response to a subpoena, from "mandatory reporting" laws (e.g., which pertain to the discovery of child abuse and sexually transmitted diseases, and possibly intent to murder).²⁰ We believe these are very different situations, which call for very different responses with respect to the confidentiality issues involved.

Our writings to date have focussed on subpoenas and court-ordered disclosure of confidential research information. We continue to believe that the proper response of any researcher and university is to protect such intrusions vigorously in a manner that makes most effective use of the legal protections available to us. With respect to research where mandatory reporting laws might apply, we believe that researchers should first make every effort to acquire the equivalent of what, in the United States, are called "privacy certificates," which afford the researcher certain protections. Without such protection, we would not do the research, because of the potential harm to participants. Also, without the guarantee of unlimited confidentiality the information we are seeking about illegal activities would be unreliable. If we were merely going to hand over the information to a court, why would anyone tell us anything of substance about their illegal activity?

We will not undertake research without a pledge of unlimited confidentiality. It would be exploitative, unethical and methodologically flawed.

The limited confidentiality consent statement assures confidentiality to the extent permitted by law. Although there are two types of potential legal "limits" to confidentiality, the limited confidentiality consent statement warns only about the "risk" of court ordered disclosure. Why is the risk of mandatory reporting disclosure not mentioned?

The URERC went so far as to add a new screening question (question 9 on form 1) dealing with the situation where the researcher might hear about violations of the law. But if the URERC is concerned about mandatory reporting requirements, why does it not screen applications for their exposure to situations in which mandatory reporting laws are most likely to be triggered? For example, one of the questions on the research ethics application screening form (Form 1) asks, "Will children be involved as subjects in your research?" Those who answer "yes" are told that they must incorporate a "consent form for the parent/guardian" (Form 3). But nowhere on Form 3 is there any mention of laws requiring researchers to inform legal authorities in the event that abuse is discovered.

And why does the Committee not also include a screening question that asks whether researchers might learn about sexually transmitted diseases? The answer "yes" would presumably need a consent statement that included a warning about the risk of disclosure created by venereal disease mandatory reporting laws.

But the Committee has done neither of these things. Instead, it has asked about violations of criminal or civil laws, only a handful of which have any mandatory reporting laws associated with them. The main possibility in this kind of research is a subpoena. This is usually a situation where a third party tries to engage the researcher as an informant in their battle, when our social role is simply to try and understand all aspects of society, to respect the human dignity of all persons,²¹ and to respect "the cultural values and sense of propriety of the persons who are asked to participate in and/or be the subject of research."²² We believe that courts will recognize our ethical obligation to protect the rights and interests of research participants to the full extent permitted by law. The policy of limited confidentiality effectively ends confidentiality. The limited confidentiality consent statement offers a barren promise. And although ostensibly designed as a warning about risk, it says nothing about mandatory reporting laws, i.e. the very situations that Drs. Horvath and Clayman cite when they say that research subjects must be warned that confidentiality is not "absolute." However, the limited confidentiality consent statement does protect the university from the liability of having to defend research participants in court. It is consistent with what the university did when the Coroner's Court subpoenaed Russel Ogden – doing what Blomley and Davis (1998) described as being "unethical" and "wrong." In terms of "protecting the University" (URERC Minutes, Sept. 9^th, 1994) the value of limited confidentiality is that it prevents the University from having to defend the next researcher who is subpoenaed, and ordered to divulge confidential research information.

Drs. Clayman and Horvath and another member of the URERC have told us on several occasions that the limited confidentiality informed consent statement is no more or less than a statement of information that prospective subjects must be told in order to decide whether to participate in the research. For example, in the review of the Russel Ogden case that Dr. Clayman undertook at the behest of then-President pro tem Jack Blaney, he explained that the limited confidentiality consent statement merely,

He repeated the same sentence in his article, "The Law of the Land," published in Simon Fraser News at about the same time.²⁴

In a brief filed at the time we started a series of meetings with the URERC on the subject of limited confidentiality, Dr. Ogloff, one of the Committee members, explained that,

Dr. Horvath also entered the debate at that time, and described the limited confidentiality consent statement as "a simple statement of fact (of the limits of legal protection) that both the researcher and the voluntary participant MUST BE AWARE" (emphasis in original). He also added,

More recently, in his history of limited confidentiality, Dr. Horvath explained that:

We accept that prospective participants need to be warned about risks associated with participation. We accept that it is in participants' interest to be told about the possibility of subpoena. But why, then, has the URERC been so reluctant to provide them with all the information they need to make an informed decision about whether to participate? As we outline below (see Sections 6.iii and 6.iv), at the very least, participants need to be warned: (a) not only about how the researcher will maintain confidentiality, but also how the university will respond in the event that a researcher receives a subpoena; and (b) that acceptance of the limited confidentiality informed consent statement involves an effective waiver of the participant's right to claim privilege in court.

There is a checklist question related to research on criminal and civil offences, but not one for researchers who might run into child abuse, where mandatory reporting laws apply. If limited confidentiality is purely about risk, why would the Committee warn about court-ordered disclosure (which is highly unlikely), and not about mandatory reporting disclosure (where, for example, with respect to child abuse, the literature tells us we are dealing with a fairly pervasive phenomenon)?

We also wonder why the Committee would not pay heed to the evidence regarding court-ordered disclosure in the United States. These cases, which are summarized in a 1996 special issue of Law and Contemporary Problems devoted to the topic of court-ordered disclosure,²⁷ show that only a tiny proportion of cases involved researchers whose participants regularly engaged in criminal activity. The vast majority of cases were in other fields. For example:

1. In one case, a sociology graduate student was employed as a waiter while engaging in participant observation research to write a thesis on "the sociology of the American restaurant." One day he came to work and the building had burned down. When investigators found out about his research, and the existence of his field notes, they subpoenaed them in the hope they might contain information of use to their investigation.²⁸
2. In a second case, an anthropologist was engaged in research with a First Nation in Alaska after the Exxon Valdez oil spill occurred off shore. Members of the First Nation were among those to bring suit against Exxon because of the impact of the spill. During the litigation, Exxon subpoenaed the anthropologist's field notes in order to see whether there was any information that would help them to contest the merits of the claims.²⁹
3. In a third case, a medical school researcher decided to do a survey in which he evaluated whether even very young children could indeed recognize the "Joe Camel" logo [Joe Camel is a cartoon mascot for the tobacco company that manufactures Camel cigarettes.] He found that they could, and incurred the wrath of a tobacco company, who subpoenaed his records and sought the identities of all participants.³⁰
4. In a fourth case, a university researcher had interviewed employees of several utility companies. The research itself proceeded with no problem. Shortly thereafter, however, a manufacturing company brought suit against one of the utility companies, and, having heard about the research and believing it might help them in their litigation, filed a deposition against the professor/researcher to gain the identities of the employees interviewed, and the content of their interviews. When the professor refused, the manufacturing company moved to force the professor's research assistant to supply the information.³¹
5. In a fifth case, a university medical researcher had created a data registry designed to track women with Hormonal Transplacental Carcinogenesis. His research produced results that were welcomed by those interested in such issues, but the database became of particular interest to a major chemical/manufacturing company who was being sued for numerous millions of dollars. The database was subpoenaed as part of other litigation in which the chemical company was involved.³²

Given the track record in the United States, why would the URERC not feel obliged to compel researchers from such disciplines as Business Administration, Education, Psychology, and Kinesiology to warn prospective participants about, and limit confidentiality in anticipation of, the risk of subpoena?

One possibility is that Committee members may already limit confidentiality in their own work, and thought criminological field researchers should do likewise. Two pieces of evidence suggest that this is the case. The first is in the minutes for the URERC meeting of November 25, 1995, when the limited confidentiality consent statement was first adopted. The minutes say that, "One Committee member will forward to the Chair an example of what is used by the Faculty of Education where disclosure is required by law."³³ This implies that the limitation of confidentiality related to mandatory reporting laws is already common practice in Education.

The second piece of evidence comes from Dr. Ogloff's statement in anticipation of our meeting with the URERC on December 18, 1997. In it, he notes:

We are left with the possibility that the limitation of confidentiality is common practice in psychology, also (Dr. Ogloff's disciplinary affiliation).

In any event, the considerations we have described above suggest that "limited confidentiality" is not about the possibility of running into mandatory reporting situations, and so it is not about warning research participants about all conceivable risks of disclosure of confidential information. So what is it about? The impression we are left with is that criminological field researchers were perceived as representing a special problem, and that it should be rectified through the ethics application process. Drs. Clayman and Horvath provide the answer when they say that researchers are "not above the law of the land."

We agree that researchers are not above the law. However, we do not agree with Drs. Clayman and Horvath's static view of the law, or with the university's "hollow and timid" allegiance to academic freedom.³⁴ In this regard, we return to some of Dr. Clayman's and Horvath's statements over the past year about their "law of the land" approach to research ethics. Dr. Clayman was the most explicit in this regard. In his "Law of the Land" article that appeared in Simon Fraser News (on 30 October, 1997), Dr. Clayman stated:

These images of researchers resisting court-ordered disclosure as being "above the law" or in "opposition to law" are misguided. We respect law, including the legal right to challenge it. Dr. Clayman seems blind to this right.

The differences between our position and the Clayman-Horvath position on law was immediately evident to Dr. Phillip Hanson, a former member of the URERC, who wrote a memorandum (see Appendix A) in anticipation of our first joint meeting with the URERC on December 18^th, 1997. He stated:

Dr. Hanson left the Committee a few months later. Judge Steinberg of the BC Provincial Court also understood these issues, and explained the dynamic nature of law in his decision, Russel Ogden v. SFU:

In an article published in the July 16, 1998 Simon Fraser News entitled "A Vice-President Responds," Dr. Clayman discounted Judge Steinberg's decision by stating, "It is important to note that the judge's comments are his own personal views and have no legal status whatsoever." Personal opinion or not, we do not understand why Dr. Clayman would speak against this view, the legal "truth" of which strikes us as being self-evident.

The next to review the issues were Drs. Blomley and Davis (1998), who undertook an independent review of the university's decision-making in the Russel Ogden case. They painted the following picture of the University position, and the general philosophy of "limited confidentiality:"

Dr. Clayman was reported in a November 16, 1998, article in The Peak, SFU's student newspaper, as having much the same dismissive reaction to the Blomley and Davis report as he did to the Steinberg decision. Author Erin Fitzgerald wrote,

We would reiterate the view that research confidentiality and academic freedom are worth saving and, indeed, President Blaney has accepted the report and acted on its recommendations. Furthermore, confidentiality is as important a "right and interest" of research participants, and hence as important to do our utmost to safeguard, as informed consent. The Tri-Council Policy Statement makes exactly that assertion, but, for reasons they have yet to explain, both Drs. Clayman and Horvath read it as supporting their notion of limited confidentiality.³⁷

As we outline in greater detail elsewhere in this document (see Section 5.ii), our strategy regarding research confidentiality does not set out with the intention of coming into conflict with the law. We fully believe that, like Russel Ogden, we would be able to successfully defend research confidentiality and researcher-participant privilege in court, and it is that objective that we believe the university community must proactively work toward. It is only by that route that we can protect the rights and interests of research participants, and maintain our allegiance to the university's mission to do research about all aspects of society. We take this position because of our respect for law, fully confident that the courts will find in favour of our undertaking to maintain in confidence the identities of our research participants.

As it turns out, the greatest threat to our research participants comes not from the courts or other third parties, but from Dr. Clayman and the URERC's undermining of our ability to face that legal challenge head on, should it ever come to pass.

The change from "confidentiality" to "limited confidentiality" was a huge step for Simon Fraser University to take. We saw that the URERC's own minutes acknowledge, "This is a sensitive issue." And its implications are broad. Next we suggested that the Vice President Research and the URERC did not have the authority to make this change, and that their attempts to do so were a procedural disaster. In the current section, we examine limited confidentiality in terms of its consistency with the University Research Ethics Policy (R20.01), and other policies and agreements at SFU.

The imposition of the limited confidentiality informed consent template does not comply with SFU Policy R20.01, as approved by university authorities in 1992. It violates that policy in several ways:

In order to comply with R20.01, we felt we had no choice but to refuse to use the limited confidentiality consent statement the URERC was foisting on researchers.

As outlined earlier we advocate an approach to informed consent and research confidentiality that respects the law, and the challenges posed to us by law, and attempts to maximize the likelihood of a successful defence of researcher-participant privilege by anticipating the court's requirements ahead of time. In this regard, we note that the Supreme Court of Canada, in Regina v. Gruenke (1991), unambiguously recognized the Wigmore test as the appropriate common law test to adjudicate any claim for privilege (see also Sopinka et al, 1992).

When it comes to protecting confidential research information, the Wigmore test is the law of the land; i.e., part of the common law of the land. Russel Ogden protected a promise of absolute confidentiality using the Wigmore test. In order to protect confidential information to the full extent permitted by law, this is the standard to which researchers and the University must aspire.

The Wigmore test is applied on a case-by-case basis. In other words, the onus will be on us as guardians of the confidential information to establish that it should be privileged. In the case of a class privilege, the onus is on the person wanting the information to demonstrate that some factor outweighs the privilege, and that the information should be divulged.

Because the law is effectively written after the fact, we have to anticipate how the test will be applied, design our research protocol accordingly, and have the conviction that we meet the criteria of the Wigmore test, a court’s opinion notwithstanding. If SFU really does support the highest ethical standards, we suggest that all research protocols should be designed this way. The four criteria are:

When researchers self-consciously set out to satisfy the Wigmore test, they must use a promise of unlimited confidentiality to pass the first criterion.

We suggest that people will not (and should not be asked to) divulge personal information that could harm them if their identities were to be revealed. Unlimited confidentiality is a prerequisite for valid and reliable information. Research thus passes the second criterion, and assuming that other researchers and the broader community value research in the way we do, it passes the third criterion, too.

As to criterion 4, to respect the law, one has to take the first criterion of the test – the communication must originate in the confidence that it will not be disclosed – very seriously indeed. Researchers must have the courage of their convictions. If we are to take the law seriously we have to promise not to disclose the information to anyone, including a court. The courts cannot have their cake and eat it too. If confidentiality is that important to the relationship, we cannot see how a court could then turn around and order that we divulge the information. That is precisely why the US Court of Appeals upheld the decision in favour of researchers Cusumano and Yoffie, and against Microsoft Corporation, when it attempted to obtain confidential research information.

The university administration's and faculty association's allegiance to academic freedom is institutionalized in the Framework Agreement. The preamble, section 1.1, states:

The articulation of what academic freedom means is given in the next section of the Framework Agreement, article 1.2:

We believe that the university administration, through the Ethics Committee it appoints, has violated Section 1.2 of the Framework Agreement, and Section III.1 of SFU Policy A30.01, by acting in a manner that infringes our academic freedom. It has done so in two ways:

1. Because of the problems created by the limited confidentiality consent statement, and especially because it violates the disciplinary standards of criminology, we have not known how to guide graduate students through the ethics application process, and have been placed in a position where we are being ordered to tell our students to violate the ethical standards of their/our discipline; consequently the URERC has infringed our freedom in the conduct of teaching;

In order to obtain ethics approval, a researcher has to fill out a Request for Ethical Approval of Research in which they must pledge to "maintain in strict confidence the responses of individual subjects," (emphasis added). This expression of confidentiality is consistent with the text of R20.01, which does not limit confidentiality in any way.

As we have pointed out several times over the past year,⁴¹ this agreement contradicts the "limited confidentiality" statement on the consent form template, which implies that a researcher will yield up information to a court or other legal body as soon as it asks. A researcher who would so readily yield confidential information is not, in our estimation, maintaining "strict confidentiality."

We had one ethics application refused for 8+ months and another application for 11+ months, and eventually rejected, because the URERC insisted that we use the limited confidentiality consent statement, or some variation of it, in our field research.

Several times since October 1997 we asked Dr. Clayman if the University intended to support graduate students should they be ordered by a court to disclose confidential research information. Without this information, we were unable to advise our students how to prepare their research ethics applications for submission to the URERC. This matter was finally resolved with the November 9, 1998 announcement by Dr. Clayman that the University would, in future, defend the academic freedom of graduate students in court. But this was not before the actions of the URERC literally had a significant impact on research in the School. As Blomley and Davis (1998) note:

As this suggests, the Ogden decision and the imposition of limited confidentiality both had a significant impact on our teaching and supervision in Criminology. Limited confidentiality has already significantly changed the shape of our graduate program. We learned recently that some graduate students have actually changed their research topics to avoid a long approval process that would impede their progress in the program.

6) The Limited Confidentiality Consent Form Prevails: The URERC’s Rationale

On December 1, 1997, one of us (Lowman) submitted a proposal to conduct research on owners and managers of off-street prostitution establishments. This proposal was revised and resubmitted on February 26, 1998. On February 24, 1998, we submitted a second and related proposal to conduct research on workers in off-street prostitution establishments. In order to avoid problems with mandatory reporting laws, we restricted both studies to establishments where only adults work. We refused to use the limited confidentiality consent statement for all the reasons we have described above. On October 14, 1998, a year after first raising our concerns about "limited confidentiality," we received a letter from the URERC announcing that our research applications and been rejected. On December 18, 1998, we submitted our grounds for appeal of the URERC’s negative decision.

The package we received from Dr. Horvath, Chair of the URERC, on October 14, 1998 contained three items:

Our History of Limited Confidentiality at SFU responds to item 1, Dr. Horvath’s Official History. Also, we are in the process of preparing a response to Dr. Dickens so-called independent decision (item 2), and have included an outline of that commentary below (see Section 6.vii). As to the URERC’s negative decision (item 3), we had one month from receiving it to file an appeal. We sent two requests to Dr. Horvath for information relating to the appeal (the second on October 23, 1998). He did not reply until November 10, just four days before our deadline to make notice of Appeal.

On November 13, 1998 we asked Dr. Horvath to convene an emergency meeting of the URERC to reconsider our applications in light of the University's November 9, 1998, statement⁴² regarding the defense of academic freedom for graduate students (and, by implication, faculty as well) and the Tri-Council Policy Statement. It should have been possible at that point to approve our two proposals as the University’s announcement resolved the one remaining problem that was preventing their approval: whether the University will defend confidential research information from court-ordered disclosure. Dr. Horvath terminated our interaction on the grounds we had already filed our Notice of Appeal. We were thus forced into a potentially lengthy appeal procedure, and yet more work to win the right to do research that should have been approved a year ago.

Excerpts from all of these interchanges will be discussed below. We start by making several observations about Dr. Horvath’s Official History of Limited Confidentiality at SFU. Then we turn to the URERC’s reasons for refusing to approve our two ethics applications.

We regard Adam Horvath’s claims in his account of limited confidentiality (document #1 above) as extraordinary.⁴³ Here we focus on one of Dr. Horvath’s key claims when it comes to limited confidentiality, whether "the limit of the law" marks the upper or lower "limit" of confidentiality, and whether the limit of the law is reached when a researcher receives a subpoena. Here is Dr. Horvath’s account:

The first point to note about this logic is that an assumption about liability/responsibility is built into it; namely, that if a court action takes place, a promise of confidentiality is only as good as the researcher's willingness to stand up to such demands in court. Dr Horvath remains silent about the University’s responsibilities should a court order the disclosure of confidential research information. This silence creates a situation by default in which the University has no responsibility to protect confidential research information in court, or defend academic freedom against the threat that a subpoena poses.

In their respective considerations of the Ogden case, first Judge Steinberg and then Drs. Blomley and Davis offer an alternative position. In their view – the correct one in our opinion – the University has a responsibility to defend academic freedom, to maintain the integrity of the research enterprise, and to protect research participants by asserting research participant privilege in court:

Support from the University is not just a matter of principle, but a practical matter, as well. A researcher backed by his or her institution is much more likely to be successful at fighting court-ordered disclosure than a researcher on his or her own (which is why Russel Ogden’s victory is that much more remarkable). To support this contention, we would note that a review of cases involving court-ordered disclosure of research information in the United States reveals that, when researchers are supported by their institutions, they fare better in court (see the special edition of Law and Contemporary Problems Vol. 59, #3, 1996).

Furthermore, the Tri-Council Policy Statement sets the lower limit of confidentiality this way:

Russel Ogden has shown that the extent possible within the law is "absolutely." The URERC consent statement, however, allows researchers who do not want to go through the inconvenience of trying to protect confidential information to this extent to take the unethical course, and capitulate should they receive a subpoena.⁴⁵ Worse, the consent statement could be tantamount to declaring open season on researchers, as it allows legal authorities to "require" confidential information whenever they see fit. We cannot ask research subjects to divulge sensitive information under these circumstances.

Then there is the matter of Dr. Horvath’s claim that, "At no time did the URERC suggest, or imply that the researcher should provide such information to the court or anyone else." There are two conspicuous problems with this bold claim:

1. Up to spring 1998, it is difficult to understand how Dr. Horvath can claim to have any idea what position the URERC took with applicants with regard to limited confidentiality as the Committee itself had virtually no contact with applicants.
   
   Since Dr. Clayman assumed the Vice Presidency, he has invoked the prerogative given by R20.01 to "grant approval on behalf of the Committee." From October 1992 to November 1997, a period in which upwards of 1000 research applications were submitted, the Office of the VP Research handled all but 2 applications (see Section 2, above). In fact, an administrative assistant in the VP-Research's office – who apparently has no formal training in research methods, research ethics or different disciplinary ethics codes – handled nearly all the URERC correspondence with applicants. She took her instructions from Bruce Clayman. There is a transparent institutional conflict of interest⁴⁶ contained in this arrangement.’ It will have to cease in order for SFU to comply with the Tri-Council Policy Statement section 4 C, which requires that there be an arms-length relationship between a Research Ethics Board and the parent institution.

After several months of interaction with the URERC, the committee at one point offered a "compromise" resolution that would allow us to guarantee unlimited confidentiality in our consent statement, but only if we were prepared to take sole responsibility for maintaining confidential information in the face of a court challenge. We were very concerned about this proposal because it could be seized by the University and interpreted as a liability waiver, just as it did to Russel Ogden (see section 6.iv below for the specific wording we were expected to use). Presumably, this "waiver" could be used to deny us our rights to legal representation under article 17 of the Framework Agreement.

There were two aspects to this negotiation that are of interest here. The first element was the debate over whether, given the extremely low risk of being subpoenaed and our pledge to maintain it, we needed to even mention the possibility of a subpoena to our participants in our informed consent statement. The second pertained to the question of whether simply telling the participants about the prospect of a subpoena, and saying no more than that, was sufficient. The next two sections review these issues.

We began our negotiations with the URERC by saying that the Committee's imposition of limited confidentiality on all researchers who check screening item #9 is alarmist and redundant. It is alarmist in the sense that in all of Canada, there has only ever been one case in which a researcher has been subpoenaed and asked to supply confidential information, and there has never been a case in which a researcher has had to defy the law in order to maintain confidentiality. It is redundant to the extent that our pledge of unlimited confidentiality includes the possibility of going to jail if, after a series of appeals, the Supreme Court of Canada were to disagree with our stand, and we had to defy the order in order to maintain our a priori pledge.

In return, the URERC argued that research participants had a right to know about the possibility, so that they could decide for themselves if they could trust researchers to maintain their pledge. We were willing to compromise on this point, since we did not believe that mention of the possibility of court-ordered disclosure, in and of itself, would damage our ability to defend our research participants, assuming that we also told them that we would do, including defying court-ordered disclosure, if necessary, to protect confidential information.

If it is important for participants to be told about the possibility of court-ordered disclosure, then it is also important for them to be told what will happen in the event a subpoena is received. On April 23, 1998, we offered the following informed consent statement for the URERC's consideration:

The URERC agreed to let us use this statement, as long as we removed the two italicized phrases that refer to what the Ethics Committee and University would do in the event of a subpoena, and finished our statement with the following:

This statement appears to us to have more to do with protecting the University from liability, and, in particular, waiving its responsibility under article 17 of the Framework Agreement (to provide faculty members with legal representation), than it has to do with protecting research participants from harm, or giving them sufficient information to make informed consent. This statement implies that, should a researcher be ordered to disclose confidential information, the Committee’s expectation is that the researcher should either divulge the information, or they must take sole responsibility for maintaining anonymity of research participants and confidentiality of research information.

We were prepared to follow the committee’s requirement that we make a statement about the remote possibility of court-ordered disclosure, but refused to accept sole responsibility for asserting academic privilege and academic freedom in court. The university also has obligations in this regard, as the Blomley-Davis Report indicates. We refuse to make a statement under the guise of "informed consent" that could be interpreted by the University as a waiver of liability, as it did in the Russel Ogden case, should we be subpoenaed. For the Ethics Committee to have fostered such a situation is a violation of its responsibility to protect research participants and an abuse of its power over researchers.

We were gratified with the announcement from Dr. Clayman, as Dean of Graduate Studies, on November 9, 1998, regarding the university's pledge of support for graduate students, and the implicit statement contained therein with respect to faculty. The announcement goes beyond merely extending Article 17 of the Framework Agreement to graduate researchers by making some assertive statements regarding the defense of academic freedom. This announcement is a sign that SFU is in the process of taking a national leadership role with respect to academic freedom issues. With regard to our own research, given that the one sticking point was the URERC's insistence that we accept sole responsibility for maintaining confidentiality, we can only hope that our pending appeal of the URERC’s negative decision will result in the approval of the unlimited confidentiality consent statement we submitted on April 23, 1998.

In his official history of limited confidentiality at SFU, Dr. Horvath claims:

6.vi) Further Procedural Irregularities: The URERC’s Negative Decision on Two Research Ethics Applications

On October 14, 1998 we received a letter dated October 8, 1998 from Dr. Horvath saying:

This letter reports the URERC’s "negative decision" on our two applications. Two reasons are given: a) the Tri-Council Policy Statement; and b) Dr. Dickens's "independent legal evaluation."

The first thing to notice about this decision is that it is not supported by any kind of rationale as per the criteria spelled out in R20.01. An unjustified decision is no more than an assertion of authority. It is difficult to appeal a decision that has no "reasons." Although the policy itself is deficient in this respect – it does not actually require that any reasons be given – the articulation of reasons in terms of the criteria spelled out in the policy is a requirement of procedural fairness.

As to the "reasons" Dr. Horvath has provided, we contest his claim that the Tri-Council Policy Statement supports what the URERC has been doing. The day before we received the URERC’s "negative decision," we sent a memorandum to the Committee describing why use of the "limited confidentiality consent statement" will not make sense under the Tri-Council Policy Statement (Appendix G). Indeed, because it requires that Research Ethics Boards have an arms length relationship with the parent institution, the Tri-Council Policy Statement would not even permit the current Simon Fraser URERC to judge ethics applications.

After he received our comments regarding the Tri-Council Policy Statement, Dr. Horvath noted:

The URERC justified its negative decision to us by invoking the Tri-Council Policy Statement. Subsequently we pointed out that, under the Tri-Council Policy Statement’s consent alteration provisions, we would likely not have to mention the minute risk of court-ordered disclosure, and under its proportionate approach to ethics review, the URERC would not be justified in taking the very intrusive position that it has. In response, the URERC turned around and stated that, "This document has not yet been adopted by the University" and refused to approve our research.

By way of summary, Dr. Dickens's opinion consists of two primary claims: a) if ordered by a court to reveal confidential information, researchers must disclose it because, b) although the Wigmore test is relevant to protecting confidential research information, researchers will likely not be successful using it. Dr. Dickens does not analyze the Ogden case in presenting arguments to support this opinion, and does not analyze any other Canadian cases where the Wigmore test was invoked. We asked for a legal opinion, but it is not what we got. Instead, we received a largely ethical opinion from Dr. Dickens tacked on to his personal opinions about the (lack of) value of the Wigmore test for defending confidential research information. His opinion represents the purest statement of limited confidentiality we have yet seen, and represents just about everything we oppose when translated into criminological field research of the type we are conducting.

d) We asked Dr. Horvath to describe the URERC’s criteria for choosing Dr. Dickens to provide expert opinion. Dr. Horvath replied: "We were looking for the most qualified and knowledgeable expert in Canada to comment on our question." Yes, but expert in what field? Dr. Dickens is, no doubt, highly qualified and eminent in his main field – bio-ethics and law. But asking him to prepare an opinion relating to our criminological field research repeats the mistake the original Tri-Council Working Group made in creating its first (1996) draft, i.e., allowing persons who are trained in one epistemology and research model to impose their principles on other types of research.

The URERC minutes of September 1, 1998, show that the URERC made inquiries with a second expert – Timothy Caulfield of the University of Alberta. Apparently he was unable to provide an opinion. Dr. Caulfield's expertise is also in bio-ethics and law A search of the web revealed that some of his recent writings concern the ethics of cloning, and the marketing of bio-genetic information. Why would the Committee approach two different people with identical expertise in the bio-ethics area, but no expertise in qualitative social science field research?

f) In our opinion Dr. Dickens' analysis of the researcher-participant relationship and the probability of success in defending that relationship in court via the Wigmore criteria is fundamentally flawed. We think his analogy of the physician-patient relationship with the researcher-participant relationship is misleading, and that the latter is far more likely than the former to be deemed deserving of privilege. Although Dr. Dickens cites Wigmore's rejection of the possibility of physician-patient privilege – and by extension, asserts that the researcher-participant relationship would have no chance in court – he is not correct when he suggests that the basis of its rejection by Wigmore was on the basis of both criteria 2 and 4. In fact, Wigmore believed its failure to pass the test was solely under criterion 2, after which consideration under criterion 4 is irrelevant, and, in any event, cannot be considered until one knows the particular circumstances being balanced in any given situation.⁵⁰ Unlike the physician-patient relationship, the researcher-participant relationship clearly passes criterion 2.

j) Is Bernard Dickens giving an "independent" opinion? He cannot. He’s very much a player when it comes to limited confidentiality – he is part-architect of a research protocol that takes a different position regarding confidentiality to that taken by Ogden, and illustrates well the differences that a field researcher and a medical-model researcher would take to this type of research. The protocol is that of one of Dr. Dickens’ students (see Appendix D for a copy of the protocol). Dr. Dickens sits on this student's Ph.D. Committee and has co-authored at least one paper with him. The thesis concerns AIDS patients and euthanasia, and examines propositions emanating directly out of Russel Ogden’s research. The student has corresponded with Russel many times over the past few years. Dr. Dickens also corresponded with Russel in 1996.

For Dr. Dickens and his student, the way to deal with confidentiality issues is to de-personalize the research interaction, make the research a one-shot study, and give repeated warnings to the participant that, if a court should order disclosure of confidential research information, it will be disclosed. Our research model is different. We want to know participants as persons. Part of our research program involves developing long term networks of key participants; often, anonymity is not an option.⁵¹ Our research tradition is one that values trust and rapport, and the maintenance of responsibilities – such as protecting the rights and interests of research participants to confidentiality – that goes with it. Not only that, but in some instances we are also interested in the identity of our participants so that we can track information about them in different sources as part of a triangulation of different research methods.

The student research protocol developed under Dr. Dickens’ supervision self-consciously differs from the undertaking of "absolute confidentiality" that Mr. Ogden used. Indeed, in this protocol, prospective research participants are, in our opinion, misinformed to the extent that they are effectively told there is no legal way of protecting confidential information from court-ordered disclosure. As Ogden’s case shows, this information is NOT correct. The Wigmore test can be used to protect confidential research information. In any event, this researcher made it abundantly clear to participants that he would not go to jail to defend confidential research information.

Because Dr. Dickens was involved in developing this research ethics protocol, there is a reasonable apprehension of bias in his commenting on the matters currently before the URERC. Dr. Dickens already has an established position to defend. Part of what we find most disturbing about this opinion is the manner in which it completely fails to speak to us as field researchers. Its design features – an aloof approach, a legalistic interaction, a one-shot study – have everything to do with the medical model, and incorporates none of the epistemological desiderata of field research.

We are left wondering why the URERC did not fully apprise Dr. Dickens of how and to whom his expert opinion would be applied.

The Ethics Revision Task Force is mandated to draft a new ethics policy. In the process, the Task Force has been asked to "review" current and past administration of the Research Ethics Policy. In this submission, we have identified a series of ways that the VP Research and the URERC have failed to comply with R20.01, R60.01, A30.01 and the SFU Framework Agreement. The Task Force is not mandated to recommend action to deal with problems created by administrators who do not comply with university policies, and the damage done by limited confidentiality in the process. The question is, who will deal with these problems?

We believe that the VP Research and the URERC have failed to comply with R20.01 in several ways:

• At the behest of the VP Research, the URERC "limited confidentiality." This change represents a substantive change to R20.01 without approval of the appropriate university authorities.
• In 1994, "limited confidentiality" was accepted in principle by an improperly constituted URERC.
• In 1995, there was no quorum at the URERC meeting where the limited confidentiality consent statement was accepted.
• The URERC was not constituted according to the policy at various times, in several ways. From 1995 onward, contrary to the requirement of the policy, no medical officer was appointed to the Committee. Sometimes, the required number of faculty representatives was not appointed to the Committee (see Appendix H).
• In 1994, at the behest of the VP Research, the URERC delegated to the Faculty of Business Administration the power to review its own ethics applications. The URERC is not authorized to delegate this power. Doing so represents a substantive change to R20.01.
• In 1998, the URERC expanded its power by requiring that researchers using secondary data sources submit applications for research ethics review. The VP Research did not intervene. The URERC is not authorized to create this requirement, which represents a substantive change to R20.01.

On December 2, 1998, the VP Research sent a memo to Deans, Chairs and Graduate Program Chairs a reminding them that:

Policy R60.01 relates to "Integrity in Research and Misconduct in Research" and, depending on the severity of the "offense," the offender is "subject to a range of disciplinary measures up to and including dismissal or expulsion."

Given that the VP Research does not comply with R20.01, we wonder how, in good conscience, he can feel justified in reminding SFU researchers that they might be subject to disciplinary action if they do not follow the policy. We suggest that Dr. Clayman has lost the institutional moral authority to require others to follow R20.01 when he does not follow it himself.

To: Dr. Bruce Clayman, Chair, and members of Ethics Review Committee

Re: Issues on and relating to agenda, Dec. 18 meeting

From:  Dr. Philip Hanson                     Date: December 10, 1997

            Dept. of Philosophy

Attn. Barb Ralph: Please circulate this in advance to the committee and to any others who will be present at the Dec. 18th meeting

I regret very much being unable to attend the important meeting on Dec. 18th, but I will be out of the country. Having pondered the issues raised in the background documents provided, may I offer the following reactions for your consideration.

I should first say that though I was appointed to this committee in Sept. 1994, the first meeting that I attended was in October of that year. But I had been sent the minutes of the previous, Sept. 9th, meeting, at which a policy of limited confidentiality had been approved for subjects providing information for research into illegal activities. And I was present at a meeting in Nov. 1995 at which consent form wording as it bears on this issue was discussed. No particular wording was brought forward or approved at that time, but the principle of changing the wording was approved, and one of those present agreed to make available to the chair wording used in their discipline, and a key absent member was to have been consulted about the wording. My understanding, and this also seems to be reflected in the minutes, was that the proposed change of wording to these forms, together with various proposed amendments to R 20.01 were to be circulated to the university community for comments. My further understanding is that this process was, in fact, ongoing until about June '96 when it was put on hold. Because of a major Tri-Council initiative on codes of ethical conduct, it was decided by the committee that work on revisions would be suspended until it was clear what further effects the Tri-Council initiative would have on R 20.01.

It is worth noting that the Nov. '95 meeting was poorly attended, barely a quorum,⁵² and on the issue of revisions to the consent form wording discussion was dominated by the one person on the committee who already had a strong and confident opinion on the matter. That person was not me.⁵³ Whereas most of the committee members come from departments whose members make extensive use of the offices of the Ethics Review Committee, I do not, and had been largely unaware of its procedures until my appointment to the committee, and had no basis in experience for strong opinions about policy matters. Why was I asked to be on the committee in the first place? Presumably because as a philosopher I know something about ethical theory. But actually applying ethical theory to concrete situations also requires a familiarity with the salient complexities of those situations, a familiarity that I didn't as yet have with respect to the issues of informed consent and confidentiality. I say all this to underscore that the committee chair got rather limited, one-sided input from the committee that day, and I am partly to blame, because I was unaware at the time of, e.g., some of the legal ramifications of the consent form wording such as those underscored by John Lowman and Ted Palys.

There are so many issues entangled here: SFU's actions in the Ogden affair, the appropriateness of SFU's current policy on who chairs the Ethics Review Committee, the legality of the process by which the consent form was changed, the appropriateness of the new wording on the consent form, the relative weightings that should be accorded in our policy to protection of the research subject, protection of the researcher, protection of the research, protection of the university. Obviously, it is more than I can adequately address in this memo.

Some – Bruce Clayman and Adam Horvath are on record – have argued from a rather narrow construal of the law of the land: roughly, the law as extant code. If one also views the university simply as a 'corporation' that provides facilities or infrastructure to its research 'clients' (a.k.a. faculty and graduate students), whose interests are distinct from its own, then it is this narrow 'reactive' view of the law that may well seem like the appropriate one – the one carrying the least risk to the university – to serve as a constraint on university policies. But one can, as John Lowman and Ted Palys do, think of the law more broadly and dynamically as encompassing not only code but also common law and precedents. And one can also have a different vision of the university, as an institution that embraces its faculty and graduate students as integral and essential constituents, societies in their wisdom having seen the value of an institution that proactively promotes and facilitates the pursuit of knowledge and understanding by its members.

I myself think of the law and of the university in the latter way. And this has consequences for what morals I draw from the Russell Ogden case. His winning his case in Coroner's Court obviously establishes an important legal precedent here in Canada for researcher-participant confidentiality. Such precedents are very much in the interests of the research constituency at the university, and therefore, given my conception of the university, ought to be proactively pursued by the university itself. The university does not set itself above the law by upholding strict confidentiality. Rather, it constructively contributes to, helps to shape the law. That is how the law works. Nor does doing so require a policy that would expect researchers to break the law or stonewall the courts. Rather it requires a policy that upholds the value of research, even research into illegal activity, and is prepared to be persuasive about these values in a court of law.

My preferred conception of the law and of universities also has consequences for the wording of consent forms. They shouldn't be worded in a way that legally undermines a researcher's potential to win their defense on grounds of researcher-participant confidentiality. That strongly argues going back to 'strict confidentiality.' On the other hand, nor should they be worded in a way that fails to protect the research participants through fully informed consent. Research participants need to be aware of the possibility that a researcher may be legally summoned to divulge information obtained in the course of their research. And of course the university wants to cooperate with the courts! But what does that mean? I think it should mean respectfully but vigorously defending in the courts the value of its research to society and the consequent value of researcher-participant confidentiality; in effect using court decisions to legally establish these values in society.

Instead of

(a) "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."

a better wording might be

(b) "Any information that is obtained during this study will be kept in strictest confidence.... It is possible that as a result of legal action, the researcher will be summoned to divulge information obtained in the course of their research. The university is committed to the value of researcher-participant confidentiality and is prepared to vigorously defend it in the courts in connection with all research whose protocols have been approved by its Ethics Review Committee."

It seems obvious now that these differences in wording – the original wording, the wording now appearing on the forms as per (a) above, and the wording just suggested in (b) – have substantively differing potential consequences for the protection of research subjects, researchers, research, and the university. If R 20.01 is neutral between them – if they are merely 'procedural adjustments' – then R20.01 is surely in this respect badly deficient! In any case, my understanding of the intent expressed in the Nov. 95 meeting was that the proposed changes both to R20.01 and to the form-is were to be presented to the university community for their reaction, before being submitted to Senate for official approval. Since this process sadly got stalled due to the Tri-Council initiative, no changes are official yet.

Finally, a very brief comment on R 20.01's designation of the chair of the committee as 'the Vice-President, Research, or his/her delegate'. Lowman's and Palys' summary and conclusion about inherent problems with this policy in "When Roles Conflict" top of p. 8 speaks for itself. But in their recent Dec. 5th memo they seem to suggest that these concerns could be fully met within the current wording of R 20.01 if the VP-Research appointed a delegate. That does not seem right to me. A primary meaning of 'delegate' is someone sent and empowered to act for another'.⁵⁴   So the chair as a delegate of the VP-Research would still be acting in the interest of or under the authority of the VP. If the conflict of interest concerns are valid, then R 20.01 ought to be reworded so that, e.g., the chair is someone simply appointed, perhaps, by the VP but not as his/her delegate. There are some ensuing issues here, though, that need to be thought through. Who, exactly, is in the administration and who isn't? Who outside the administration would be willing to take on this rather large and onerous task, and under what conditions -- e.g., what kind of support staff, what kind of arrangements about reduced teaching load, etc.?

We understand that the mandate of the Ethics Committee is to administer the SFU Ethics Policy (R 20.01) and, in particular, to consider whether a given research proposal conforms to that policy. We believe that the Committee's decisions (or, at least, decisions that come under the Committee’s purview):

1. Fall short of the policy’s desiderata (for example, by not appearing in Coroner's Court alongside Russel Ogden to defend the confidentiality/anonymity of his research participants, the Committee – or was it the University? – did not comply with the policy).
2. Go beyond the boundaries of R 20.01 by: (a) limiting confidentiality without Senate approval, and (b) introducing non-ethical criteria to the adjudication of ethics applications. In the process, we believe the Committee has infringed academic freedom and undermined protection of the anonymity of research participants and confidentiality of the information they provide.

The purpose of this memorandum is to provide an example of how the Ethics Committee's revision of policy R20.01 played itself out in the course of a student seeking ethics approval for research involving perceptions of violence among young offenders. The case demonstrates how non-ethical criteria, particularly concerns about liability, have contaminated the ethics application process. We preface these remarks by noting that this case was never referred to the Ethics Committee as a whole for discussion. The approval decision described below was made exclusively by the Chair on behalf of the Committee.

1) Displacing Responsibility to the Research Participant. In the process of the student’s application for ethics approval, there was an e-mail interchange between the supervisor and the Ethics Committee – or, at least, a correspondent representing the Ethics Committee’s Chair – as to whether the limited confidentiality clause on the informed consent form template should be used in this instance (as the correspondent has no authority under R 20.01 we interpret her e-mails as emanating from the Chair himself). The student and her supervisor resisted using the limited confidentiality statement. Instead they proposed that the student would "only ask questions about the activities for which you [the participant] have already been caught/punished," and tell the participants that, "it is important that you do not talk about illegal activities or activities for which you or your friends have not been caught." Ultimately, the Ethics Committee Chair approved the use of this wording in lieu of a statement about limited confidentiality.

When the student initially proposed the use of this wording, the Chair’s correspondent e-mailed the following response to the supervisor:

Ethics application deliberations should be focussed exclusively on the rights and protection of research participants. But according to the statement quoted above, the purpose of adding the "limited confidentiality" statement was to "cover" the supervisor and the researcher "legally." Far from protecting research participants, the statement "warning them" to talk only about certain incidents appears to have been interpreted by the Chair’s correspondent as a way of displacing responsibility onto the research participant’s shoulders if they didn’t comply.

2) Displacing Responsibility to the Researcher. In reacting to the suggestion that the "limited confidentiality" clause be added to the informed consent statement, the supervisor expressed reservations about the effects the growing list of legal prophylactics would have on the integrity of the interview:

The supervisor reminded the Chair’s correspondent that the youths were not being asked about any activities beyond those for which they had already been convicted, and hence did not see the need to include the "court action" clause on the consent form. The e-mailed response to these concerns reveals how, in this case at least, the ethics application process has become a mechanism to transfer liability from the university to researchers and participants:

This communication creates a "guarantee" where none was offered, and would seem to be saying: "We, the University, have covered ourselves, and we've given you the information that will allow you to cover yourselves, so now if it all blows up, you and the participants are on your own." We would like to know if a lawyer or any member of Ethics Committee was consulted before these "legal" opinions were transmitted to the supervisor and student.

If, as the Chair has said elsewhere, the purpose of limited confidentiality is to protect the research participant, how could he trade it away in this instance? He did this by interpreting the researcher’s instructions as making the participant liable for what they might say. What if these youths did not understand what the law means and volunteered sensitive information anyway? Although the Chair anticipated this possibility, once his concerns about liability were satisfied, he was no longer concerned about what impact such a disclosure might have on the research participant.

3) Consent, liability and research methods. In her research on adjudicated youth violence, the student intended to follow a feminist standpoint epistemology and method. In this approach, interview questions are not developed in advance, but emerge from the interview process in a manner that encourages an egalitarian participation of interviewees, thereby reflecting their priorities and concerns, not just those of the researcher. However, the student was told that, in order to receive ethics approval, she must submit interview questions in advance. As a result, she felt forced to compromise the feminist standpoint epistemology and method she had chosen to follow. Why were interview questions required in advance? Was it to help create a paper trail of the displacement of liability onto researchers and participants that was being accomplished via the ethics approval process? It certainly looks that way from the e-mails quoted above. Whatever the reason might have been, it meant that the Ethics Committee, in whose name the requirement was imposed, acted as an epistemological gatekeeper, a role that is consistent with neither the Ethics Policy nor with the ideal of academic freedom.

This particular case is perplexing for many reasons. In the process of discussing how to obtain informed consent, the Ethics Committee Chair treated the research participants more as risks to be managed than persons to be afforded the protections described in R 20.01. Informed consent was transformed into a series of all-inclusive risk-management clauses with the result that, in the event of a court action, the university can capitulate without a struggle on the grounds that it has fully met its legal obligations. According to a protocol imposed in the name of "ethics," research participants who disclose information about certain illegal activities, and the researcher to whom they disclose it, can be left high and dry.

This case suggests that there are several problems with the ethics approval process. We are concerned that a variety of weighty decisions about ethics, liability, confidentiality and epistemology were made without the application ever being referred to the Ethics Committee as a whole for discussion. We believe that this is not an isolated case and that these are not the only problems characterizing the ethics approval process. Consequently, we suggest that it is time for an independent review of the entire ethics application process.

John Lowman and Ted Palys

School of Criminology

You have been given this information sheet because you indicated an interest in being contacted about further research when you enrolled in the HIV Ontario Observational Database (HOOD). Information sheets will be distributed to ALL HOOD enrolees who have indicated an interest in further studies, regardless of their views or health status. This Information Sheet is for a study of the experiences and decision making of persons with HIV/AIDS (PHA) concerning euthanasia and assisted suicide. Euthanasia and assisted suicide are controversial issues. This study is being undertaken to further understanding of these phenomena from the perspective of persons with HIV/AIDS.

The study aims to explore these issues by talking to persons with HIV/AIDS about their views and experiences. Specifically, the views and experiences of the following PHA are required: (a) those people who have participated in planning and/or carrying out acts of euthanasia and/or assisted suicide of others; (b) people who have made a personal decision in favour of E or AS for themselves; (c) people who have made a personal decision against E or AS for themselves; and (d) people who are undecided about E and AS for themselves. Each of these perspectives is important in developing an adequate theory of decision making regarding euthanasia and assisted suicide.

The purpose of this study is to develop a theory of decision-making by persons with HIV/AIDS (PHA) regarding personal decisions for or against euthanasia (E) or assisted suicide (AS).

If you decide to participate in this study, you can expect the following procedures to take place:

• at this regularly scheduled appointment, your physician has informed you of the study, and provided you with this information sheet. Your physician will have no further involvement in the study and you will not be asked whether or not you have contacted the investigators to participate in the study. In this way, neither your doctor, nor any other clinic staff, will know whether or not you have decided to participate in the study;
• if you are interested in participating in the study, you can contact the investigators directly at the number provided below. If you decide to call the investigator, YOU MUST NOT IDENTIFY YOURSELF. You must either decide on a false name (pseudonym) to use at all times throughout the study, or simply do not use any name in your discussions with the investigator. This is for your own protection, so that the investigator will not know who you are;
• if you call, a brief statement will be read to you outlining the risks of the study and details of your potential involvement;
• if you are still interested in participating, you will select a time and place that is convenient and comfortable for your interview;
• before starting the interview, you will be reminded of the risks of participating and asked whether you will consent to be interviewed. You will then be told that you are free to withdraw from the study at any time;
• if you consent, you will be interviewed. All interviews will be tape-recorded. The interview should take between 30-60 minutes;
• after the interview, you will be given an opportunity to ask any further questions you may have about the interview;
• the audiotape of your interview will be transcribed (i.e. typed word-for-word) within two weeks of your interview;
• immediately after transcription, the audiotape will be destroyed;
• any identifying remarks that you might have made during the interview either about you personally or any other identifiable person or place (i.e. all proper names) will be removed from the transcripts;
• the transcript of your interview will be analysed.

You will not benefit personally from participating in this study.

Because of the nature of the proposed study, some of the participants may have had previous involvement in acts of assisted suicide or euthanasia. These are currently criminal acts under Canadian law, Although the audio tapes of interviews will be destroyed, and no names will appear- anywhere on the transcripts, it may still be possible to recognize the participant, or someone else involved in the criminal activity, from information in the transcript. The transcripts would be turned over to authorities only under a formal court order, e.g. as part of a coroner's or criminal investigation. Under those circumstances, the study investigators have no legal privilege that allows them to withhold transcripts from the authorities, This is the main risk of participating in the proposed study. There is no way of determining how likely it is that this would occur. If you have not been involved in any of then activities, this risk does not apply to you.

This risk will be explained to you on three occasions before you consent to be interviewed: once in this information sheet, once in the initial phone conversation, and once immediately prior to beginning your interview.

The other main risk involved in this study is that the discussion of euthanasia and assisted suicide may be emotionally upsetting for you. If this is the case you will be reminded that you are free to stop the interview at any time. If you become upset, but would like to continue the Interview, you will be given as much time as you need to continue the interview. You will also be given the names and phone numbers of clinic staff at the clinic you attend (i.e. at all four participating clinics) who are best trained to help you in the event that you are upset by your participation. Other numbers for contacting emergency services at your clinic/hospital will also be provided.

Even though health-related information about study participants exists in the HOOD database, none of this information will be used for the purposes of this study. Only information that is freely given during the interviews will be used in this study.

In order that your name does not appear anywhere in the study records, you will be asked on three separate occasions to give your verbal consent to participate in the study. In addition, you will be reminded several times before your interview that you are free to stop the interview and/or withdraw from the study at any time.

All participants will be given $20 to cover any expenses that may have been incurred by agreeing to participate in the proposed study. You will be given $20 even if the interview is not completed.

The study results will be distributed to AIDS Service Organizations in Ontario and published in the peer review literature.

On 15 September, 1998, Adam Horvath, Chair of the University Research Ethics Review Committee (URERC), sent a communication to all Deans, Associate Deans, Chairs and Directors, announcing the following:

Policy R20.01, the SFU Ethics policy approved in October 1992, defines "research involving human subjects" – i.e., the domain of research subject to ethics review – as follows:

More recently, however, the URERC web page lists the domains of research subject to review as follows:

One can see the list has expanded somewhat from the description in the actual policy. On October 2, 1998, we e-mailed Dr. Horvath the following query:

In a reply dated the same day, but received via inter-departmental mail a week later (9 October), Dr. Horvath stated:

Minutes of the URERC’s meetings dating back to 1992 indicate that the source of Dr. Horvath's "accepted practice" and "past thinking" must be the meeting of November 23, 1995 where this change was made in the Draft Policy, which the 1995 URERC approved, and then implemented without the authority of Senate and the Board of Governors.

Bruce Clayman chaired the November 23, 1995 meeting, which was attended by only three Committee members: Adam Horvath, Mark Wexler and Philip Hanson. Ellen Loosely and Barb Ralph also attended the meeting, but they are not URERC members. Three other faculty members, the SFU Safety Officer and the Director of Health Services were absent.

There was no quorum. Nonetheless, the VP-Research continued with his agenda. Under Agenda item 9, "Approval of Revised Policy R20.01," the following entry appears in the Minutes:

It would appear that this is the only mention in the minutes from 1992 to the present that bear on the extension of R20.01 to include research using personal information on human subjects from secondary sources not available to the public. We can compare the actual R20.01 with the Draft Policy on this issue, with respect to the definition of "research involving human subjects":

The requirement noted in Dr. Horvath's reminder is thus clearly an assertion of the Draft Policy, which was never submitted to Senate or the Board of Governors for approval, but which Dr. Horvath continues to follow nonetheless. (See Appendix C for a table listing other ways the URERC has been following the Draft Policy instead of the policy approved by authorized university authorities.)

At the URERC meeting of December 2, 1994, item 5 on the agenda involved "Delegation of authority for Ethics Request for the Faculties of Education and Business Administration." There is no further mention of the Faculty of Education beyond the item title, however, for reasons we were unable to ascertain from the minutes. All discussion and motions reported in the minutes focussed solely on the Faculty of Business Administration. In this regard, the minutes contain the following entry:

The URERC is empowered to "establish its own operating and appeal procedures" (section 6f), but it is not empowered to delegate its authority to review ethics applications (the only power of delegation specified in R20.01 is the VP-Research’s power to delegate the Chair). The Chair can approve applications on the Committee’s behalf, but he did not have the authority to invite the URERC to delegate this power to a third party. When the VP-Research did this, the members of the Committee should have shown due diligence, and refused to allow such an obvious deviation from the policy.

John Lowman and Ted Palys

School of Criminology

Attention: the University Research Ethics Review Committee:

The purpose of this memorandum is to bring various aspects of the Tri-Council Policy Statement, Ethical Conduct for Research Involving Humans, to the attention of the University Research Ethics Review Committee. In particular, we would like to draw the URERC’s attention to the concept of "minimal risk" as it pertains to the Tri-Council’s "proportionate" approach to research ethics. Also, we urge the URERC to consider the implications of the "consent alteration" provisions (Article 2.1(c)) of the Policy Statement for the much-debated "limited confidentiality" consent-form template that is still in use at SFU.

We hope these observations will persuade the Committee to re-evaluate its decision to continue forcing criminological and other researchers to use the "limited confidentiality" consent form template that warns prospective participants about the limits of confidentiality in relation to the risk of court-ordered disclosure of confidential research information.

In our negotiations with Dr. Clayman and the URERC since last October, we have argued that considerations relating to informed consent, confidentiality, anonymity and academic freedom need to be balanced in the process of protecting research participants and providing confidentiality to the "full extent permitted by law." In lieu of a statutory researcher-participant privilege or a compelling Charter argument, we have to turn to common law to assert privilege. The Supreme Court of Canada (in R. v. Gruenke, 1991) has accepted the "Wigmore test" as providing appropriate criteria for establishing privilege on a case-by-case basis. The research protocol we originally submitted to the URERC was constructed with the Wigmore test in mind.

As we have explained to the Committee several times since then, the "limited confidentiality" consent-statement used at SFU since 1994 creates acute ethical problems for criminological and other researchers who want to maintain confidentiality using the Wigmore test.⁵⁵ To establish that a communication is privileged, it must meet all four criteria of the test.⁵⁶ The first criterion requires that the communication must originate in a confidence that it will not be disclosed. Because the consent statement supplied in the URERC's informed consent template (Form 2) says that, "the researcher may be required to divulge information obtained in the course of this research to a court or other legal body," the communication does not originate in a confidence that it will not be disclosed. If information is collected using this protocol, a court could say, "The information is not confidential because you told the research participant that a court might require it, and a court requires it now, so hand over the information." We still do not understand why the Committee believes it is ethical to thereby vacate participants' rights and interests in this area.

As far as we know, only one researcher in Canada (Russel Ogden) has ever been ordered to disclose confidential research information, and he successfully fought the order, i.e., no Canadian researcher has yet been put in the position of having to defy a court order in order to protect research participants. Given that the risk of court-ordered disclosure is so small, especially when the SFU informed consent statement compromises our ability to protect confidential research information to the full extent permitted by law (i.e. by employing the Wigmore test), why mention it at all?

In response to this question, the URERC has argued if there is any foreseeable risk associated with participation in research, the participant must be informed. By taking "foreseeable" to be synonymous with "conceivable" – which it deigns to be the case whenever Item 9 on Form 1 is checked – the Committee has imposed a rote formula for ethics decision-making that subordinates all other considerations to the requirements of informed consent.

We countered that no risks will be posed to our research participants because we will not disclose confidential information to a court, and believe it would be unethical to do the research if the situation were otherwise. We believe that court-ordered disclosure of confidential criminological research would cause considerable injury to the research enterprise, and that this injury would be much greater than the benefit to be gained by the correct disposal of particular litigation (Wigmore test, criterion 4). Consequently, we feel ethically bound not to disclose confidential research information, even if a court orders us to do so – a stand that is consistent with the ethical standards of our discipline, criminology (e.g., see Wolfgang, 1981) and the SFU Ethics Policy (R20.01). Because we are not above the law, we will accept whatever punishment might be meted out for contempt of court in the unlikely event that the case were to go as far as the Supreme Court of Canada, and the Court did not support our a priori decision to provide unlimited confidentiality.

In response to this argument, the URERC asserted that we must nevertheless mention the risk of court-ordered disclosure in our consent statement because, "subjects have the right to assess the risk of the researcher reneging upon their commitments." In our letters of April 3^rd, April 23^rd, May 19^th, and August 15^th 1998 to the URERC, we pointed out that, by the same general logic, the Committee should require that prospective participants also be apprised of the risk of the University reneging on its responsibility to protect academic freedom and the SFU Ethics policy. But the Committee has not done this.

Now we realize that all these arguments will take on a different complexion once the Tri-Council Policy Statement takes effect, because of the proportionate approach to research ethics it advocates, the criterion of "minimal risk" it imposes on Research Ethics Boards, and the consent alteration provisions it provides in Article 2.1(c).

A log jam of criminology ethics applications is now developing because of the difficulties created by the "limited confidentiality" clause still appearing on the SFU consent form template. Although Universities are not expected to comply with the Policy Statement until December 1999, we now ask the URERC to evaluate its own policy of compelling researchers to include warnings about court-ordered disclosure in light of the philosophical principles laid out by the Tri-Council.

In sharp contrast to the practice at SFU, the Tri-Council rejects the "formulaic" application of any research ethics policy. It advises REBs to take a "proportionate" approach, in which the level of intervention by REBs is proportionate to the level of risk faced by prospective research participants.

In cases of minimal risk, the degree of REB intervention is expected to be minimal. "Minimal risk" is to be defined from the perspective of research participants:

This approach highlights the differences between the Tri-Council Policy Statement and the approach maintained by the URERC during its regime of limited confidentiality, and an excellent example of this is evident in a proposal the two of us submitted to the URERC for Ethics Review. The research we proposed involves studying managers of escort agencies and other venues of off-street prostitution. What are the confidentiality risks associated with such a project?

From the perspective of participants, our interest in their worlds meets the Tri-Council's definition of "minimal risk" in every respect:

1. Our research poses much less risk to participants than they run in the course of their daily lives. Prostitutes and pimps run a daily risk of being arrested for their activities. Our research will not exacerbate this risk.
2. With respect to the likelihood of us being subpoenaed to testify, the risk to research participants is clearly minimal; in Canada, there has only ever been one case in which a researcher was subpoenaed and asked for confidential information.
3. If, however, we were to be subpoenaed, what is the risk a court would compel us to share confidential information? We believe the risk is minimal, and that a court would agree with our position, as it did in Russel Ogden’s case. The Committee cannot provide us with a single Canadian case of a researcher being ordered to violate confidentiality. In the United States, there are a few dozen reported cases of courts ordering the disclosure of research information. However, only a handful of these cases involved requests for the identities of research participants. In the majority of these cases, the courts have recognized that confidentiality is essential to the research enterprise, and ordered that personal identifiers be severed from the records to be disclosed.⁵⁷ And the idea that, when faced with the balancing of considerations that is embodied in criterion 4 of the Wigmore test, a court might value prosecuting a prostitute or pimp more than the research enterprise is highly unlikely.
4. And finally, even if, in the most unlikely of situations, we were ordered by the Supreme Court of Canada to reveal information we had pledged would remain confidential, we would defy the order, and accept the consequences.

Each one of the outcomes in 2, 3 and 4 is highly unlikely in and of itself, and the joint probability of them all occurring in sequence would seem incalculably low. In sum, the risk to participants is minute.

According to the Tri-Council philosophy, therefore, it would seem both alarmist and excessive for the URERC to stubbornly require a researcher to utter warnings about the possibility of subpoena in our case, and probably in most other cases that come before the URERC. In the case of our prostitution research, the degree of risk hardly warrants the lengthy delay we have been subjected to.

In following a proportional approach, the Statement’s informed consent alteration provisions (Article 2.1(c)) explicitly state that the interests of informed consent should be balanced against "the needs for research" (something we have been saying to Dr. Clayman and the URERC from the outset):

An REB can, "approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent … provided that the REB finds and documents that:

1. The research involves no more than minimal risks to the subjects;
2. The waiver or alteration is unlikely to adversely effect the rights and welfare of the subjects;
3. The research could not be practicably carried out without the waiver alteration;
4. Whenever possible and appropriate, the subjects will be provided with additional pertinent information after participation; and
5. The waivered or altered consent does not involve a therapeutic intervention." (Article 2.1(c))

Under the new Tri-Council standards for full disclosure, a Research Ethics Board should not formulaically require that a certain class of researchers mention the minute risk of court-ordered disclosure of confidential information. Aside from situations where mandatory laws might apply, which for us pose mostly different problems, this argument can be applied to all research where the SFU "limited confidentiality" consent statement is currently required. Considering the five consent alteration criteria in relation to our research on prostitution reveals the following:

Criterion (v) does not apply because our research does not involve any therapeutic intervention. Also, criterion (iv) does not apply because we do not plan to deceive anyone.

Our research meets criterion (iii) because it cannot be practicably carried out using the current SFU consent form template. Our prospective subjects interpret SFU’s limited confidentiality statement as meaning that the University expects us to divulge information if a court so orders, without contesting the order in court. Under these circumstances, we would not expect subjects to talk honestly about their undetected criminal activity. Indeed, if we limit confidentiality this way, most of our contacts will not talk to us at all. Nor would we want to talk to them in that circumstance: to gather data from voluntary participants without taking their rights and interests to heart is exploitative and unethical. Additionally, under a regime of a priori limitation of confidentiality, such as the one embodied in the SFU consent form template, our research results would not be valid.

As to criterion (i), we have outlined above the various ways in which our research is clearly "minimal risk" from the perspective of participants. Although we have faith the courts will support our decision to pledge unlimited confidentiality, the bottom line is that we are prepared to accept the sanctions of the court if the Supreme Court were to disagree. This position is consistent with the Tri-Council Policy Statement, which says, "legal and ethical approaches to issues may lead to different conclusions." Researchers who choose this course are not "above the law," for, as the Statement says, "ethical approaches cannot pre-empt the application of law"(p.i.8).

As to criterion (ii), would the omission of a statement about risk of court-ordered disclosure adversely effect the welfare and rights of our subjects? No. It would do just the opposite. It would enhance our ability to use the Wigmore test to protect their right to privacy, confidentiality and anonymity.

According to the analysis above, we suggest that, when the Tri-Council guidelines come into effect in January 2000, limited confidentiality SFU-style, will become a thing of the past. We urge the URERC to abandon it now.

A year has passed since we first identified problems with "limited confidentiality" as encoded in the SFU consent form template warning about court-ordered disclosure of confidential research information, and still the URERC is forcing researchers who answer "yes" to Question 9 to use it. As to our own research, it is with considerable dismay that we note that one of our proposals dates back to December 1^st 1997, and the other to February 24^th 1998.

The ethics review process at SFU is supposed to be about protecting research participants from harm. Incredibly, although we have said that we will submit to incarceration rather than harm research participants by divulging their identities, and even though we have tried to accommodate the URERC’s requirement that we mention the risk of court-ordered disclosure of confidential research information, neither of our proposals is approved.

Four months ago (letter to us dated June 23^rd 1998) the Committee stated that it would treat with "the greatest urgency" the matter of finding a text or language for the informed consent procedure that would permit both our projects to proceed. And yet, here we are, a full two months after our most recent letter to the Committee (August 15^th, 1998), and we have not received a response.

As we have already pointed out, the Committee’s actions have severely compromised two research projects that took many years to set up. The delay may have made it difficult or even impossible to conduct these studies in the foreseeable future. Instead of spending the last eight months working on our research, we had to devote a substantial part of that time fighting for the right to do it. We regard the delay as an unwarranted infringement of our academic freedom.

Yours sincerely,

John Lowman and Ted Palys

July 31, 1998

Dr. Jack Blaney

President

Simon Fraser University

Burnaby, BC

V5A 1S6

Dear President Blaney,

Thank you for your letter of April 6, 1998 responding to our March 27, 1998 argument that the ethics committee at that time was improperly constituted, and had been since August 1995 when the Director of University Medical Services apparently left the Committee. In your letter of April 6, you reasoned that the Committee was properly constituted throughout the period we referred to. We ask you to reconsider this opinion on three grounds:

Section 5b of R20.01 requires that the Director of Medical Services be a member of the Ethics Committee. In your letter of April 6, you say that the position no longer exists and that, "Efforts to obtain another member from Health and Counselling Services were unsuccessful." However, the policy is quite clear that, "Questions of interpretation or application of this policy or its procedures shall be referred to the President, whose decision shall be final" (R20.01, "Interpretation"). When the VP Research realized that the Committee could not be properly constituted according to the requirements of the policy, did he refer the matter to the President, as the policy requires? Apparently he did not. Your letter of April 6 may resolve the problem from that point forward. But as of the time the Director of Medical Services left the Committee in 1995 until April 6, 1998 when you made the ruling, the Committee was not properly constituted.

We believe the specific absence from the Committee of the Director of Medical Services or equivalent is problematic because the Committee adjudicates kinesiology and other research proposals where research participants risk physical harm.

Section 5b of the Policy requires that there be six members of faculty on the Committee. Barb Ralph has provided us with a list of, what is, to the best of her knowledge, the Ethics Committee’s membership dating back to 1987. According to the information forwarded to us, there were only five faculty members on the Committee in 1992, 1993 and 1995, in which case the Committee was improperly constituted in these three years.

Your letter of April 6 says that, "The Policy’s advice concerning disciplinary coverage is reflected in the Committee’s membership…" We suggest there is a problem with the disciplinary representation on the Committee.

Section 5b of the policy says that faculty members, "be drawn primarily from Departments or Faculties whose members frequently conduct research with subjects."

Although the policy does not define what "frequently" means, Dr. Munro’s memo of April 17, 1998 requesting feedback on the "Research Ethics Policy Revision Task Force" draft terms of reference was circulated only to Faculties and Departments that had more than 10 ethics approval requests since January, 1994. Although a total of ten proposals over four years may fall short of the criterion "frequent," Dr. Munro’s demarcation of relevant departments provides a useful benchmark against which to assess the membership of the Ethics Committee. He lists the Departments and Faculties that meet his criterion as: Communication, Criminology, English, Gerontology, Kinesiology, Linguistics, Political Science, Psychology, Resource and Environmental Management, Sociology and Anthropology, Women’s Studies. Subsequently, Dr. Munro confirmed that the faculties of Education and Business Administration also should be included in this list.

According to the information provided by Barb Ralph, the majority of appointments were indeed from departments and faculties that frequently conduct research with subjects. So, in this one respect, it can be said that the VP Research followed the letter of the policy. But did he follow its spirit?

Over the past ten years, of the thirteen "frequent human research departments/faculties" identified by Dr. Munro, only five (Business Administration, Criminology, Education Kinesiology, Psychology) were represented on the Ethics Committee; the other eight were not represented at all. Now there are three psychologists on the Committee (two from the Department of Psychology and one from the Faculty of Education) one Kinesiologist, a faculty member from business administration and one from philosophy. As in the past, the medical-experimental model of research ethics dominates.

R20.01 recognises that, "There is a professional responsibility of researchers to adhere to the ethical norms and codes of conduct appropriate to their respective disciplines." Presumably, when there is not broad disciplinary representation on the Ethics Committee, some effort is made to appreciate the diversity of disciplinary ethics codes, as adjudication of applications should take into account the applicant’s professional disciplinary responsibilities. In our experience, such information is not sought after, and the Committee does not consider different disciplinary ethics codes when adjudicating applications. An improperly constituted Ethics Committee is using improper procedure to impose its philosophy of research ethics on applicants from different disciplines.

We are troubled that several important traditions in social science – ethnography, feminist standpoint epistemology, participant-observation, participatory action research, oral history, etc. – have never been represented on the Ethics Committee by an active practitioner. Indeed, the only person representing qualitative research traditions to have been appointed to the Committee in the last decade was Bob Menzies from Criminology, who resigned in protest of the Ethics Committee’s troubling policy and procedural irregularities.⁵⁸

When it comes to representation of different research regimes, R20.01 affirms that researchers should adhere to the ethics codes of their respective disciplines. If the Ethics Committee had been constituted in the spirit R20.01, so that a range of different research models with diverse understandings of ethics and ethics issues were represented, "limited confidentiality" might never have seen light of day.

Although we appreciate that the university is about to embark upon a review of the Ethics Policy and its administration, and is reviewing the university's decision-making in the Ogden case, the fact remains that an improperly constituted Ethics Committee imposed on SFU researchers a regime of limited confidentiality that substantively changed the Ethics policy without Senate approval, infringed academic freedom, compromised informed consent, undermined academic privilege, and apparently continues to expose research participants to harm. Perhaps upwards of 200 research proposals will be considered by the Ethics Committee between now and March 1999, when the Ethics Task Force is expected to submit its report, and there may be many more before a new policy is in force. We believe it would be imprudent to wait until then to rectify non-compliance with the policy.

For much the same reasons that many harassment cases had to be discarded because they were adjudicated by an improperly constituted harassment panel, the actions of a series of improperly constituted Ethics Committees need to be mitigated, too. In the interest of researchers such as the student referred to in our "liability" memorandum of February 3, 1998, we urge the University to undertake that, should any researcher, graduate students included, be subpoenaed and asked to reveal confidential research information, the University will provide the legal advice, representation and/or indemnification necessary to protect that information.

As the current Ethics Committee is not properly constituted, we urge that a new Committee be appointed, with six faculty members from the eight Faculties and Departments which frequently conduct research with humans, but have not been represented on the Ethics Committee during the past ten years.

Yours sincerely,

John Lowman and Ted Palys

C SFUFA

Margaret Jackson, Director, SFU School of Criminology

Patrick O'Neill, Chair, CAUT Academic Freedom and Tenure Committee

Ellen Gee, Chair, SFU Research Ethics Review Task Force

Adam Horvath, Chair, SFU Ethics Committee

Endnotes

3. See also Sopinka, J., Lederman, S.N., and Bryant, A.W. (1992). The law of evidence in Canada. Toronto: Butterworths.

4. A claim is considered to be privileged if it complies with the four "Wigmore criteria," which require that:

Despite his statement in support of academic freedom, Dr. Clayman still stands by SFU's earlier decision not to support Russel Ogden and says he "simply didn't agree" with the Blomley and Davis report. "I don't agree with the decision that we should pay his legal bills and I don't agree we owe him an apology."

34. "Hollow and timid" was a phrase used by Judge Daniel Steinberg of the British Columbia Provincial Court, in his decision in Russel Ogden v. SFU, to describe SFU's allegiance to academic freedom, as evidenced in its treatment of Ogden. See the full decision at www.sfu.ca/~palys/steinbrg.htm

35. We believe that the "committee member" is Dr. Horvath, who was later appointed by Dr. Clayman as the Chair of the URERC following the latter's resignation from the Chair in February 1998.

49. See Mary Marshall (1992). "When is a secret not a secret?" at http://www.cookdukecox.com/newsletters/issue6-1992/secret.htm