Russel Ogden, a successful M.A. candidate at Simon Fraser University, braved a contempt of court charge in order to protect the confidentiality of his research sources and uphold the broader principles of academic freedom.

Although the contempt charges against Mr. Ogden were dismissed, his case has left unresolved questions about the support he received from Simon Fraser's administrators and the direction of ethics policy at the university.

This story begins in September 1991 when Mr. Ogden registered in the M.A. program at Simon Fraser's school of criminology. His research proposal, concerning euthanasia and assisted suicide in persons who have AIDS or are HIV positive, was vetted and approved by the university's ethics review committee. The thesis itself was successfully defended in February 1994. Shortly thereafter, the resulting media coverage of his work drew the attention of Vancouver's Coroner, who was conducting an inquest into a case of suspected assisted suicide.

Believing that Mr. Ogden had information concerning the death, the Coroner subpoenaed him to testify. Ogden appeared before the Coroner but, relying on academic freedom and the promise of absolute confidentiality he had given to his sources, he claimed academic privilege and refused to divulge the identities of his research participants. Citing Ogden with contempt, the Coroner held a "hearing within a hearing" to determine the legality of this refusal.

At the hearing, Ogden's lawyer argued that his client, in assuring his sources that under no circumstances would their communications be divulged, had met one of the key elements of the legal test for privilege.

Impressed, the Coroner ruled that the relationship between Ogden and his sources was indeed privileged and that their communications did not have to be disclosed. The contempt charge was dismissed and the identities of the informants remained secret.

By any measure this constituted a remarkable legal victory. In extending the notion of privilege beyond a narrow range of traditional categories, the decision protects both researchers and their participants and advances academic freedom. However, the story does not end here.

This crusade for academic freedom was fought and won largely by Russel Ogden and a small band of supporters, with only limited assistance from the university's administrators. In fact, the battle left Ogden responsible for a large legal bill and he subsequently sued Simon Fraser University to recover these costs.

His case was heard before Judge Daniel Steinberg of the Provincial Court of British Columbia.

In his 27-page written decision, issued in June 1998, Judge Steinberg found that the university was under no legal obligation to cover the legal fees in question. However, he emphasized the great social value of the research at issue and noted that the principles of academic freedom and privilege that Ogden had fought to protect were fundamental to the operation of any accredited university.

In his closing remarks he wrote "I cannot leave this case without making some comment on some of the arguments of the defendant." He characterized the vague statements of personal support for Ogden expressed by the university as "hollow and timid" when compared with the opportunity it had to promote academic freedom and academic privilege. According to Judge Steinberg the university "turned its back" on Ogden when faced with the possibility of bad publicity and demonstrated "a surprising lack of courage" with its failure to defend academic freedom.

He concluded by expressing the hope that the university, although it was under no legal obligation to do so, would revisit the issue of covering Ogden's legal bill.

In response to the decision, Bruce Clayman, vice president of research at Simon Fraser University indicated that the university is pleased that Judge Steinberg, in considering the specifics of the case, recognized that the university had no legal obligation to support Ogden more than it did. At the same time, Mr. Clayman stated the university was "very interested" in Judge Steinberg's personal opinion that Simon Fraser University should have done more for Ogden.

Indeed, so interested that Simon Fraser University President Jack Blaney has struck a committee comprising two distinguished faculty members to examine the university's handling of the case. The committee will review both the university's failure to provide formal support to Ogden at the Coroner's inquest and its decision to place a $2,000 limit on financial contributions to his legal bill. The committee is also mandated to review the process by which Ogden's thesis was approved and supervised.

"The review committee will recommend what further action, if any, is needed to ensure that this matter can be put to rest with a sense of fairness and openness," said Gregg Macdonald, executive director in the president's office.

As the lawsuit was proceeding before Judge Steinberg, the story also advanced on another front. Back on campus, the coroner's subpoena of Ogden prompted the university ethics committee to amend its ethics review application form. The new form requires that research participants be informed that a court may seek to compel the researcher to divulge both the source and content of information. There is debate on campus about whether this change will jeopardize some important social sciences research.

This debate has implications far beyond Simon Fraser, and has engaged the attention of CAUT's Academic Freedom and Tenure Committee. Ethics committees have to be sensitive to the need to balance informed consent with the freedom to inquire into important social problems such as child abuse and assisted suicide, says academic freedom and tenure committee chair Professor Pat O'Neill.

"Many social issues would be difficult and perhaps impossible to study if potential research participants believe they will be reported to the police if they truthfully answer researchers' questions," said Professor O'Neill. "The result may be to deprive society of important information about its most vexing problems."

SFU's new ethics review application form requires that a researcher inform participants who may disclose information on illegal activities that: "Any information that is obtained in 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."

In the opinion of John Lowman, professor of criminology at Simon Fraser, and a vocal critic of the administration's handling of the Ogden case, this new requirement is a major setback to academic freedom. "One of the key components of the legal test for privilege is that the communication must originate in the confidence that it will not be disclosed. Russel Ogden succeeded before the Coroner because he had given his participants an unqualified assurance that their confidentiality would be protected in all circumstances," he said.

"The ethics committee, by imposing a requirement to tell the research participant that information may have to be divulged, undermines any claim for privilege that a researcher might make."

Professor Adam Horvath, chair of the university's ethics committee, has a different opinion on the new requirement. He says one of the important lessons of the Ogden case is that researchers may be ordered by a judge to provide confidential information on their research participants. Given that informed consent is central to research involving human participants, the ethics committee believes that this significant piece of information should be disclosed to the research participant.

According to Professor Horvath it is not appropriate to keep the participant in the dark about the possibility of the researcher being called into court, and on that basis hope to establish a claim for privilege. Rather, the preferred approach is to let the research participant make the decision to participate knowing the full legal context, including the fact that a court may seek to compel disclosure of confidential information from the researcher.

Professor O'Neill says there is another issue that needs to be resolved in balancing the rights of participants to information and the rights of researchers to study controversial topics. He noted that many researchers would go to jail rather than reveal their sources. And, they are not alone in adopting this stand. It has been taken, on occasion, by journalists, priests, and others whose professional relationships are built on a foundation of absolute confidentiality.

"It is not easy to formulate an ethics procedure that would incorporate researchers' willingness to go to jail rather than reveal sources," Professor O'Neill said. "If a researcher had a change of heart, could they be ethically liable for deciding, in the end, to obey the court?"

Despite these difficulties, Professor O'Neill says academic freedom, and society's need to have social science data on difficult problems, requires that "a satisfactory balance be struck."

Professor Horvath did concede that the current wording of the new form is not cast in stone. The ethics committee is seeking legal advice on the extent of researcher/participant privilege and is also engaged in ongoing correspondence with Professor Lowman.

Professor Horvath expressed the hope that the debate on the issue would continue to further the entire university community's understanding and appreciation of the complexity of the ethical considerations facing scholars.

The ultimate solution may lie in new legislation, says Professor O'Neill. He noted that in some jurisdictions in the United States researchers can apply for a certificate that relieves them of the legal obligation to disclose their sources for a given project, in essence giving them limited privilege.

In the meantime, Simon Fraser's attempts at fashioning new ethical guidelines will be watched with interest by researchers across the country.

This month's academic freedom & tenure feature was supplied by Paul Jones of CAUT.