Protecting Raw Data and Psychological Tests from Wrongful Disclosure: A Primer on the Law and Other Persuasive Strategies

Psychologists must advocate for more stringent legal protection of psychological test materials because using standardized tests is the most distinguishing and exclusive feature of psychological evaluation practice. With the rapid growth in forensic consulting, unrestrained discovery of raw data and psychological test materials during litigation erodes the reliability and validity of the test procedures. Dissemination of test materials reduces the interpretive value of the tests and promotes cheating, turning our best methods into junk science in the courtroom. This article proposes to reform the law and to revise the professional ethics of psychologists consistent with the strong public policy of test security as described by the U.S. Supreme Court in Detroit Edison v. NLRB (1979). Currently, federal courts and about 20 states protect psychological tests as a unique methodology, with some states enacting a psychologist nondisclosure privilege/duty to safeguard test materials from wrongful disclosure. The record management practices of psychologists vary considerably and are vulnerable to legal attack unless psychologists are aware of legal arguments to protect test materials from wrongful release. Although this article does not offer legal advice, it describes the most common records management problem confronting neuropsychologists and some practical solutions to the raw data problem. Best practice for protecting psychological tests requires the psychologist to understand the law and to assert the psychologist nondisclosure privilege. Other strategies are presented and evaluated. Organized psychology and the legal community should advocate for a uniform rule to protect the objectivity, fairness, and integrity psychological methods in litigation.