IRBs require researchers to guarantee their research participants confidentiality. Leaving aside the obvious question of whether this is always necessary or desirable, we know that in some instances research requires this promise to gain access and to protect research participants from harm. Such is surely the case with Chris Bruckert & Colette Parent, criminologists at the University of Ottawa, who having conducted research with sex trade workers. Many contexts of the social world are accessible because researchers can promise participants they will not be harmed as a consequence of participating in that research, and when deviant, illegal, secret or elite activities are the research focus this is essential. Researchers and participants assume confidentiality means confidentiality!
Bruckert & Parent are finding out that promising confidentiality is an obligation, but that it may well not be respected. Police have demanded access to research interview transcripts with a sex trade worker who five years after the interview is charged with murder. Journalists face this situation with some frequency and their employers understand that quality journalism is sometimes dependent on confidential sources. When journalists rights to withhold their sources are challenged in court, their employers go to legal bat for them.
Not so for Bruckert & Parent. The University of Ottawa has refused to provide legal representation for the researchers (even though the UOttawa IRB demanded confidentiality be guaranteed) claiming that it isn’t their role to stand in the way of other’s desire to violate their demand for confidentiality. How peculiar and disingenuous! The Canadian Association of University Teachers is providing legal support for the researchers, and the case goes to court sometime in the summer of 2013.
This promises to be a serious test for researchers as the individual charged with murder is Luka Rocco Magnotta. Magnotta is charged with the brutal slaying and dismemberment in Montreal of Lin Jun, a Chinese student at Concordia University, then posting the gruesome video of the killing online.
Both Magnotta and the researchers have filed a motion to maintain the confidentiality of the interview contents. The researchers successfully defended research confidentiality in Quebec Superior Court, winning a qualified researcher-participant privilege in the process.
An analysis of the legal ruling draws conclusions that can inform universities and researchers in navigating ethics expectations, including:
- “researchers’ institutions must be ready to provide legal support to their researchers in order to fulfill their ethical obligations to protect research participants and contractual obligations to the granting agencies to abide by the TCPS
- reaffirms the Wigmore criteria are the appropriate vehicle for the court to adjudicate claims to privilege for the researcher-participant relationship
- The Parent decision also shows the high value courts place on the research enterprise and the role of academic freedom
- involvement in criminal activity per se does not vitiate a claim of privilege
- researchers should walk their talk, i.e., if research confidentiality is important, then their behaviour should be consistent with that importance in every respect
- a preferred strategy [for ascribing pseudonyms] would be for the researcher to supply one, such that the link between a specific person and a specific interview would be known only to the principal investigator in any project”