Preamble

The issue of disclosure of test data raises a number of concerns for psychologists who develop, validate, and use test in a variety of settings. The statement that follows was formulated to help psychologists with these issues. Its intent is to be consistent with the Ethical Principles of Psychologists and Code of Conduct (APA, 1992; hereinafter referred to as the Ethics Code) and the Standards for Educational and Psychological Testing (1985; herinafter referred to as the Testing Standards) (1). Psychologists should refer to the above documents, other appropriate guidelines and standards, and relevant legal statutes in resolving legal and ethical conflicts.

General Issues

Test data include an individual's test results, raw test data, records, written/computer-generated reports, global scores or individuals scale scores, and test materials such as test protocols, manuals, test items, scoring keys or algorithms, and any other materials considered secure by the test developer or publisher.

The release of test data may affect test takers, but may also be relevant for a variety of other professional, scientific, institutional, and legal purposes. The disclosure of an individual's test results, as defined in the previous paragraph, often requires consideration of several basic issues: (a) maintaining confidentiality of test data; (b) informing the test taker of the purpose, use, and results of testing; (c) releasing data with the consent of the test taker; (d) releasing data to unqualified persons; (e) releasing data without impairing test security; (f) releasing data without impairing copyright or other intellectual property interests of third parties (e.g., test publishers); (g) conforming to legal mandates and rules pertaining to test data; and (h) other issues.

Several existing principles and standards of relevance to these issues can be found in the Ethics Code (APA, 1992), Testing Standards (1985), and other APA guidelines. Psychologists should be familiar with these standards and appropriate principles which apply to specific settings (e.g., schools, organizations, health care) or uses for test data. Psychologists may wish to obtain legal or other professional advice concerning relevant federal and state statutes, regulations, and rules, relevant to the release of test data. Guidance may be provided by a variety of standards or guidelines such as state licensing laws, the Ethics Code, and the Testing Standards.

When psychologists are mandated by law, or otherwise required to release data to persons they believe to be unqualified or in instances that may impair the security of the test materials or intellectual property/copyright interests, they should inform others (e.g., employers, schools, courts, test takers) of their obligations to the Ethics Code (APA, 1992; which may have the force of law in some jurisdictions), Testing Standards (1985), and other relevant professional standards.

Psychologists should be aware that professional standards and practices as well as legal mandates governing the disclosure of test data often differ substantially depending on the setting, intended purpose, and use of testing. At times, this statement, and APA standards, may conflict with legal mandates, organizational or institutional requirements. When such conflicts arise, psychologists should attempt to identify the relevant issues, make known their commitment to relevant standards, and attempt to resolve them in a way that, to the extent feasible, conforms both to law and professional practice as required by the Ethics Code (APA, 1992), licensing regulations, and other relevant standards.

II. Access to Test Data

APA's Ethics Code (1992) and Record Keeping Guidelines (1993) each contain provisions which address the maintenance and access of confidential psychological records. When appropriate, psychologists should consider that there may be conflict among the confidentiality rights of test takers, contractual obligations with test publishers, and other relevant parties (e.g., third-party payers).

Psychologists usually obtain informed consent from test takers or their legal representatives prior to the testing, except when the nature of the testing does not require such consent (e.g., some types of employment testing, court-ordered asessment). Even when consent is not required, it may be desirable to obtain it. Consent may also be required when as evaluation is requested by an attorney rather than ordered by the court. Informed consent implies the test taker or his/her representative has agreed to the testing after having been informed, prior to testing, of the reasons for testing, the intended use and its range of possible consequences, what testing information will be released, and to whom testing information will be released.

When informed consent is not required, such as when testing is mandated by law or when testing is conducted as part of an admissions or employment screening process (Testing Standards, 1985; Standard 16.1), test takers should still be appropriately informed about the testing process. Appropriate information about the testing process might include the purpose of testing, use of test data, time required for testing, and who will or will not have access to test data, except when such information whould threaten the psychometric properties of the test or when the nature of the psychologist's role prevents such explanations (e.g., in some instances of employment screening or court-ordered assessments; also see Ethics Code Standard 1.07, "Describing the Nature and Results of Psychological Services").

Following the completion and scoring of the test, psychologists should also provide test takers with explanations of test results when the psychologist's role does not prevent such explanations and when the psychologist has explained possible limitations to this explanation before testing (APA, 1992; Standards 1.07, "Describing the Nature and Results of Psychological Services," and 2.09, "Explaining Assessment Results"). Both the Ethics Code (APA, 1992) and Testing Standards (1985) recognize exceptions to furnishing test results and explanations to clients. Release and explanation of test data may not be required when testing is mandated by law, when testing is conducted as part of an admissions or employment screening process (APA, 1985, Standard 16.1) or, in some organizational consulting, security screening and forensic evaluations (APA, 1992, Standard 2.09, "Explaining Assessment Results"). When appropriate, psychologists inform individuals of these limitations at the outset of testing.

Recommendations made on the basis of test results should use language that is understandable. Similarly, when test scores or reports are released to test takers or other persons or institutions (e.g., parents, guardians, teacher, human resource departments, legal authorities), psychologists should make reasonable efforts to provide understandable explanations concerning the nature, purposes, and results of the testing (e.g., an explanation of what the scores mean, their confidence intervals, any significant reservations they have about the accuracy or limitations of their interpretations) and how scores will be used.

Test data identified by the names of individual test takers are usually not released to any person, third-party payer, or institution without the informed consent of the test taker, the test taker's parent or guardian, or organizational client or legal representatives. Whether such consent is provided or not required (see Section III above), psychologists may still attempt to limit access to test data to only qualified professionals.

The Ethics Code (APA, 1992; Standard 5.05, "Disclosures") states that psychologists only disclose confidential records, including test data, without the consent of the individual, parent, or guardian when mandated by law, or permitted by law for a valid purpose. The Ethics Code cites the following examples of what may be valid purposes: (a) to provide needed professional services to the patient or the individual or organizational client; (b) to obtain professional consultations; (c) to protect the patient, client, or others form harm; or (d) to obtain payment for services, in which case disclosure is limited to the minimum that is necessary.

When the client's intention to waive confidentiality is viewed by the psychologist to be contrary to the client's best interest, the psychologist usually discusses the implications of releasing psychological information. The psychologist usually assists the client in limiting disclosure only to information required by the present circumstances and only to other qualified professionals.

Many states have statutory provisions that require formal consent by patients, their parent, or guardian before such records can be released. Many states protect against disclosure of mental health records under the psychotherapist-patient privilege. In addition, several federal statutes exist which may be relevant in specific situations. Further, constitutional, statutory, or common-law privacy protections may exist to protect against the untoward consequences of disclosure. Various limitations have been imposed across jurisdictions which permit the client to waive such protections (e.g., therapist-client privilege) or exempt purely diagnostic interactions.

The concerns regarding the release of test materials primarily relate to test security, the potential invalidation of tests, and copyright laws and contractual obligations. Psychologists are required by the Ethics Code to maintain the integrity and security of tests and other assessment techniques consistent with law and contractual obligations (APA, 1992; Standard 2.10 "Maintaining Test Security"). This is important for several reasons.

Disclosure of secure testing materials (e.g., test items, test scoring, or test protocols) to unqualified persons may decrease the test's validity. Availability of test items to an unqualified person can not only render the test invalid for any future use with that individual, but also jeopardizes the security and integrity of the test for other persons who may be exposed to test items and responses. Such release imposes very concrete harm to the general public - loss of effective assessment tools. Because there are a limited number of standardized psychological tests considered appropriate for a given purpose (in some instances only a single instrument), they cannot easily be replaced or substituted if an individual obtains prior knowledge of item content or the security of the test is otherwise compromised.

Development and refinement of items and norms for individual intelligence tests, personality assessment techniques, and achievement tests often require many years of research and considerable effort and expense. Improper disclosure of test items or other test materials also may result in damage to those parties which have developed or have ownership in the test and possibly result in breach of contract claims against psychologists who violate the terms of their test purchase or lease agreements.

Psychologists usually inform persons or agencies requesting test data of the psychologist's obligations to the Ethics Code (APA, 1992) and professional standards and practices, which includes taking reasonable steps to limit the release of test data to persons qualified to use such information.

Any release of data must conform to the Ethics Code (APA, 1992), which requires psychologists to refrain from misuse of assessment techniques, results, and interpretations and to take reasonable steps to prevent misuse of assessment results by others. Misuse includes releasing test data to unqualified persons. The Testing Standards (1985; Standard 6.6) note that responsibility for test use should only be assumed by and delegated to persons with training and experience necessary to handle these responsibilities in a professional and technically adequate manner. Test users should be knowledgeable about a variety of complex issues, perform a variety of technical activities, and be able to use professional judgment. The primary concern of releasing test data to individuals who are not competent to interpret them, including the limitations of the data, is that the data will be misused, having potentially harmful effects on the client, patient, or others. In addition, untrained and/or unqualified individuals might make harmful and misguided decisions based on a misunderstanding of the test data. The psychologist's responsibilities extend to raw test materials such as responses to test items or recording of observations during assessment that may be contained in test protocols or testing records.

Tests and test protocols are generally protected by the federal copyright laws and usually may not be copied without permission of the copyright holder. Psychologists mandated by law or regulation to provide copies of a test, test manual, or test protocols need to consider copyright laws which may potentially be violated by releasing such materials.

It is prudent for psychologists to be familiar with the terms of their test purchase or lease agreements with test publishers as well as reasonably informed about relevant provisions of the federal copyright laws. Psychologists may wish to consult with test publishers and/or knowledgeable experts to resolve possible conflicts before releasing specific test materials to ensure that the copyright and proprietary interests of the test publisher are not compromised.

Federal and state statutes, federal/state rules and regulations, and court precedents address disclosure requirements that vary by the setting, use or purpose of testing, and the party requesting disclosure. Court decisions have been largely case specific, that is, decisions based on the specific facts of a case, usually balancing the rights of participants with the degree to which the protected information is considered necessary for resolution of legal issues. There may also be additional constitutional, statutory or common-law privacy protections governing test disclosure. Therefore, it is advisable for psychologists to become informed about applicable legal constraints governing requests for test information disclosure in their state and in a specific situation. The psychologist may also wish to seek legal consultation, and to consider the Committee on Legal Issues (1995) statement titled, Strategies for Coping with Subpoenas or Compelled Testimony for Test Data, and the Ethics Code Statements regarding conflict between the Ethics Code and the law (Standard 1.02) and Organizational Rules (Standard 8.03).

Third-party payers (e.g., health insurance organizations, health maintenance organizations) and employers (when self-insured or for other purposes such as disability determination or leave approval) sometimes request test data in determining a client's eligibility for services or reimbursement for a psychologist who has provided testing or assessment services. Psychologists often ask clients or their legal guardians to sign a written release which acknowledges consent for the release of such records to appropriate health insurance organizations. Such records often are released in written form and may include or exclude actual test scores. However, psychologists exert special care concerning release of secure test materials (e.g., protocols, test items) and inform the requesting parties of relevant ethical standards and any contractual obligations which restrict the release of such materials.

Psychologists providing services to organizational clients may face additional issues in disclosing the nature and results of test data (APA, 1992, Standard 1.07, "Describing the Nature and Results of Psychological Services"), the disclosure of records (Standard 5.05, "Disclosures"), ownership of records, or data (Standard 5.10, "Ownership of Records and Data"), and in explaining assessment results (Standard 2.09, "Explaining Assessment Results"). Psychologists do retain professional responsibilities to test takers even when the client is an organization. In such circumstances, psychologists working for organizational clients should attempt to anticipate possible competing objectives and clarify with both the organizational client and test takers how such conflicts can be resolved or prevented. In many instances the nature of the psychologist's role within the organization (employee or consultant) and organizational policies will prevent disclosure of test data to individual test takers. In circumstances of legally mandated disclosure of tests or test records in organizational contexts, psychologists should consider attempting to assure appropriate protection of any released tests and test records (e.g., materials in possession of government entities could be subject to disclosure under state or federal freedom of information laws).

The Principles for the Validation and Use of Personnel Selection Procedures (Society for Industrial and Organizational Psychology, 1987) provides more guidance on types of test data and materials deemed appropriate for release within an organization. It cautions that results be reported in language likely to be understood by persons receiving them, and that: (a) scores should not be reported to applicants, incumbents, or managers unless they are explained carefully to make sure they are correctly interpreted; (b) scores should generally not be reported to persons who later may be asked to provide ratings for validation studies; (c) derived scores (e.g., I.Q.s or grade-equivalent scores) should be avoided as they may be easily misinterpreted in employment contexts; and (d) confidential test materials and data, such as selection procedure scores or results of reference checks, should be safeguarded to avoid disclosure, which may harm the individual or undermine the assessments.

Legal requirements governing disclosure of test data may vary substantially from state to state. Psychologists faced with demands to produce test data are encouraged to secure advice about the governing law(s) in the state where the problem arises as well as federal and local statutes and regulations applicable to specific contexts. Psychologists are also encouraged to refer to ethical and appropriate professional standards, as well as applicable guidelines (e.g., Section 7 of the APA Ethics Code; APA, 1992). Psychologists involved in litigation in which the disclosure of test data is at issue are encouraged to familiarize themselves with the important steps psychologists can take to preserve the confidentiality of test data and protocols short of noncompliance with the law or court orders (2).

Psychologists who request the release of test data, or who are affiliated (through employment, paid or unpaid consulting relationships, or other related affiliations) with organizations or agencies making such requests, should be aware of applicable ethical and professional standards. Psychologists requesting test data, or who are affiliated with organizations requesting test data, make reasonable attempts to maintain the integrity and security of requested tests and assessments, to protect the confidentiality of clients and test data, and to take reasonable steps to prevent others from misusing test data. Psychologists may assist organizations requesting test data to appropriately restrict the request to test data that are relevant for a specific purpose and to limit access to qualified professionals with a legitimate interest. Psychologists affiliated with organizations and agencies requesting or mandating release of data may also make known their commitment to professional and ethical standards (see, e.g., APA Ethical Principles 1.02, "Relationship of Ethics and Law" and 8.03, "Conflicts Between Ethics and Organizational Demands"; APA, 1992) and attempt to inform all parties of appropriate ways to resolve any conflicts in order to ensure conformity to these standards.

In deciding whether to reprint items, psychologists are encouraged to consider the qualifications of the intended audience, access to the publication by the general public or potential test takers, the intent and use of the publication, the potential for invalidating the assessment technique, and intellectual property/copyright law. The reprinting or description of individual test items in a publication (e.g., popular press, paper presentation, research article, book, technical report, handout) may jeopardize the integrity and security of many standardized tests.

Psychologists generally obtain permission from the copyright holder prior to reprinting test items. Psychologists may also consider alternatives to providing test items to persons not qualified in assessment by (a) developing similar items having little or no overlap with content in the original test items and (b) using factors, clusters, or content-categories and their descriptions.

It is advisable for persons in training who use test materials, or who have access to test data, to be directly supervised by a qualified professional. Academic departments and professors should maintain the security of all test materials under conditions that prevent access by unauthorized individuals (APA, 1992; Standard 2.10, "Maintaining Test Security"). For example, stored testing materials should be carefully safeguarded and be accessible only to supervising faculty, appropriate storage facility staff, and only to students in training who have permission and oversight by the appropriate faculty member.

When students are administered a test for demonstration purposes, the instructor assures the security and appropriate use of the test. Because exposure to tests in such demonstrations can invalidate the test for future use with students, simulated test items, film or video demonstrations, or other alternative means are encouraged as alternatives to classroom administration or demonstrations of actual tests, whenever possible.

The Testing Standards (APA, 1985) state that test protocols and any written reports should be preserved when any test data about a person are retained (Standard 15.9), and data (whether retained on paper, data files, etc.) should be adequately protected from improper disclosure (Standard 16.5). The Ethics Code (APA, 1992) and Record Keeping Guidelines (APA, 1993) contain additional information regarding the retention of psychological records. Also, the need for and extent of record keeping may be impacted by statutes of limitations for relevant causes of action (e.g., fair employment laws in personnel selection settings, malpractice laws in clinical settings, etc.).

Psychologists should take great care in storing outdated test results to ensure that they are not inappropriately used as a basis for interventions, recommendations, or decisions. Test data should be used only for decisions for which they are appropriate and still valid. A particular problem exists when test data from screenings are used as the principal basis for evaluations (in employment, school, or therapeutic settings) when additional and more current or relevant data may often exist. Such potential misuse of test data increases when unqualified persons have access to secure test materials or confidential test data.

Psychologists should also take reasonable steps to maintain the integrity and security of test materials (e.g., tests, protocols) consistent with ethical and legal obligations. Casual access to tests or administration of tests by individuals who have no real need can result in breaches of security and may jeopardize security and validity. This does not preclude administration of tests for research or training purposes under appropriately controlled conditions.

FOOTNOTES

(1) This document references the current edition of the Standards for Educational and Psychological Testing, codeveloped by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education (1995). At this writing, the document is under revision.

(2) Psychologists are encouraged to refer to Strategies for Coping With Subpoenas or Compelled Testimony for Test Data (Committee on Legal Issues, 1995), available from APA's Office of Legal Affairs.

REFERENCES

© 2009 American Psychological Association
Science Directorate
750 First Street, NE • Washington, DC 20002-4242
Phone: 202-336-6000 • TDD/TTY: 202-336-6123
Fax: 202-336-5953 • E-mail
PsychNET® | Terms of Use | Privacy Policy | Security | Advertise with us