Whom researchers should speak with for more information
Vice-President, Research and International or delegate
Contact: Olivia Rogalla
orogalla@uwaterloo.ca
519-888-4567x 33432
The researcher’s representative association at the University can also help to confidentially discuss options, particularly if the researcher needs to access a grievance process (e.g., Faculty Association, Staff Association, Federation of Students, Graduate Students Association).
Other resources
- The Canadian Association of University Teachers, of which the Faculty Association is an active member, maintains information about Canadian cases in this area and has published a book on Protecting Research Confidentiality as part of its academic freedom series.
- Ted Palys, of the Department of Criminology at Simon Fraser University, and his collaborators have written extensively on the topics of research ethics regulation and research confidentiality in Canada.
- Chapter 5 of the TCPS 2 (2014), the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans obliges universities to make independent legal advice available to researchers.
Appendix A: The Wigmore criteria
The Wigmore criteria are applied by Canadian courts to determine whether to grant privilege (i.e. a legal right that protects an individual from being compelled to disclose information to the court) on a case-by-case basis. The criteria require that:
- The communications must originate in a confidence that they will not be disclosed (e.g., do the research participants believe that their information will be kept confidential, and is their participation dependent upon this belief?);
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties (e.g., would the research project have been able to proceed without the promise of confidentiality, and would future participation in research studies be jeopardized if this promise was broken?);
- The relation must be one which in the opinion of the community ought to be sedulously fostered (e.g., should the relationship between researcher and participants be fostered and protected in the public interest); and
- The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation (e.g., do the benefits of allowing the information to be used in the interest of public safety, outweigh the protection of the researcher/participant relationship?).
Appendix B: Things researchers need to consider to protect the confidentiality of participant data
What follows are some best practices for researchers who conduct research involving human participants. These cannot guarantee protection from forced disclosure, but they will ensure that the researcher is in the best possible position to make this argument:
- Researchers should consider the nature of their research at the outset and design protocols accordingly. Research that may result in demands for disclosure include, for example:
- research dealing with controversial political topics;
- research that might directly or indirectly uncover information about illegal acts; and
- research dealing with vulnerable or marginalized participants.
- The easiest way to safeguard participants is by collecting anonymous data wherever possible and ensuring that information cannot be re-identified with participants. Where this is not possible, the ethical duty of confidentiality is critically important.
- Researchers should design their research from its inception to embed the Wigmore Criteria and include a discussion in their research ethics application as to why confidentiality is essential to undertaking the research project. Although not a guarantee a court would uphold the case, demonstrating confidentiality is part of a well-considered research plan places the researcher in a better position to have researcher-participant privilege recognized.
- Researchers should reinforce the Wigmore Criteria at every stage of research and in every contact they have with participants. Their relationship with participants should begin with a clear expectation of confidentiality and researcher behaviour should be consistent with that in every respect. Ask prospective participants if they would participate in the research if they could be identified and, if practicable, record their responses.
- Researchers should expect all aspects of their research procedures and practices might be scrutinized by a court as evidence of the importance of confidentiality. This includes the researcher’s research ethics application, funding proposals to granting agencies, participant recruitment materials, interview and transcription processes, data storage practices, disseminating their findings and more.
- Ensure everyone involved in the research team, including collaborators, research assistants and student volunteers is familiar with these Guidelines and the importance of confidentiality of the data and information collected for the research project.