Consistent with recommendations regarding professional ethics post test feedback to testtakers

1. What “counts” as test data vs. test materials when it comes to test data disclosure?

For the purpose of this document, the terms test data and test materials are defined as broadly as the way tests are used in practice; and they encapsulate the Ethics Code representations of both test data and test materials. In the current context, test data include (but are not limited to) individual's test results; raw test data; records; written/computer-generated reports; and global scores or individual scale scores. Test materials include (but are not limited to) test protocols, manuals, test items, scoring keys or algorithms; and any other paper or electronic materials considered secure by the test developer or publisher. Given these definitions, which test data and test materials are released in a particular situation depends on professional judgment, policies, laws, and court orders, taking the context and purpose at hand into full consideration (see Ethics Code, Standard 9.04, 9.11).

2. What are the major issues to consider when releasing test data and test materials?

The release of test data and test materials may affect not only test takers, but also may be a relevant consideration for a variety of other professional, scientific, institutional, and legal purposes. The disclosure of test data and test materials often requires consideration of several basic issues, to include: (a) maintaining confidentiality, as appropriate, of both test data and materials; (b) information disclosed as part of the process of informing the test taker of the purpose, use, and results of testing; (c) releasing test data with the consent of the test taker; (d) releasing test data and materials to qualified persons; (e) releasing test data and test materials without impairing test security; (f) releasing test data and test materials without impairing copyright or other intellectual property interests of third parties (e.g., test publishers); (g) disposing of test data and test materials in an appropriate and timely manner so that test security is not compromised; and (h) conforming to legal mandates and rules pertaining to test data and test materials (see Ethics Code, Standard 9.04).

3. What if I am required to release test data and test materials when it conflicts with the APA Ethics Code ?

At times, the APA Ethics Code may conflict with legal mandates, organizational policies, or institutional requirements, per:

• Standard 1.02: Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority, and
• Standard 1.03: Conflicts Between Ethics and Organizational Demands.

When psychologists are mandated by law, or otherwise are required to release test data and test materials either to persons they believe to be unqualified or in instances that may impair the security of the test data, test materials, or intellectual property/copyright interests, they are encouraged to inform all relevant parties (e.g., employers, schools, courts, test takers) of their obligations to the Ethics Code (which may have the force of law in some jurisdictions).

It is important for psychologists to know that professional standards and practices as well as legal mandates governing the disclosure of test data and test materials often differ substantially depending on the setting, sample, intended purpose, and use of testing.

When such conflicts arise, psychologists are encouraged to attempt to identify the relevant issues, make known their professional commitment to relevant standards, and attempt to resolve these issues in a way that, to the extent feasible, conforms both to law and professional practice as required by the Ethics Code, licensing regulations, and other relevant standards (see Ethics Code, Standard 9.04).

II. Access to Test Data and Test Materials

4. I am a practitioner. I am worried that someone might ask for test data and test materials associated with my client in the future. What are my obligations and responsibilities?

Psychologists, and their employing organizations and institutions, may develop formal procedures and policies to address the collection, retention, review, and release of test data and test materials. Prior to testing, psychologists typically discuss limitations of confidentiality or disclosure of test data, test materials, and test results with test takers, individuals, and organizational clients. In this way, psychologists can help to minimize any misunderstanding concerning the release of such confidential and secure test data and test materials. For example, psychologists performing testing or assessment for organizational clients may clarify in advance with the organizational client the type of test materials to be utilized and the type of test data to be provided, the appropriate use and limitations of such materials and data, and those within the organization to whom such material and data will be provided. Psychologists may also clarify, in advance, appropriate mechanisms that may be used to protect test takers.  

5. Is there any professional guidance I can seek out to help me figure out what my responsibilities are for maintaining and accessing confidential records?

The Ethics Code (Section 4), the Testing Standards (Standards 9.19, 9.20, 9.21) and APA's Record Keeping Guidelines (2007) each contain provisions that address the maintenance and access of confidential psychological records. When exercising professional insight and judgment with respect to these provisions, psychologists must consider that there may be challenging and perhaps unavoidable conflicts among the confidentiality rights of test takers, contractual obligations with test publishers, and other relevant parties (e.g., third-party payers). Ultimately, it is the psychologist's expertise and responsibility that is brought to bear in dealing with these conflicts.

III. Informing the Test Taker of the Purpose, Use, and Results of Testing

6. Do I have to get permission from a test taker before giving a psychological test?

Psychologists obtain informed consent from test takers or their legal representatives prior to testing, except when the nature of the testing does not require such consent (e.g., some types of employment testing, most educational testing, and court-ordered assessment). Even when consent is not required, it may be desirable to obtain it. Consent may also be required when an 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, Standard 8.4; see also Professional Practice Guidelines for Psychologically Mandated Occupational Evaluations, APA 2017), it is recommended that test takers be appropriately informed about the testing process (see Ethics Code, Standard 9.03). Appropriate information about the testing process might include the purpose of testing, use of test data and test materials, time required for testing, and who will or will not have access to test data and test materials, except when such information would 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; see Ethics Code, Standard 3.11).

7. After I administer a test, is it necessary for me to explain the results to the test taker? What about releasing results to the test taker?

Following the completion and scoring of the test, psychologists are encouraged to take reasonable steps to explain test results to test takers, except when the psychologist's role prevents such an explanation, and this fact has been clearly explained to the person being assessed in advance (Ethics Code, Standard 9.10). Both the Ethics Code and the Testing Standards (AERA, APA, NCME, 2014) recognize exceptions to furnishing test results and explanations to clients. Release and explanation of test data and related test materials may not be required when testing is mandated by law, when testing is conducted as part of an admissions or employment screening process, or in some organizational consulting, security screening, and forensic evaluations (Ethics Code, Standard 4.05, 9.04; Testing Standards, Standard 8.4).

8. What kind of language might I use when describing test results to test takers?

Practitioners are encouraged to take reasonable steps to explain assessment results to the test taker or other parties in language they can understand. Similarly, when test scores or reports are released to test takers or other persons or institutions (e.g., parents, guardians, teachers, human resource departments, legal authorities), psychologists are encouraged to make reasonable efforts to provide understandable explanations concerning the nature, purposes, results, and decision-making related to 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).

IV. Releasing Test Data and Related Materials with or Without the Consent of the Test Taker

9. Under what circumstances can I release test data and related test materials without the consent of the test taker?

Test data and any test materials 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 appropriate parties: e.g., the test taker, the test taker's parent or guardian, organizational client, or legal representatives (Ethics Code, Standard 9.04). Whether such consent is provided or not required (see Section III above), psychologists may still exercise their professional responsibility in attempting to limit access to test data to qualified professionals.

The Ethics Code (Standard 4.05, 9.04) 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 to disclose test data: (1) to provide needed professional services; (2) to obtain appropriate professional consultations; (3) to protect the client/patient, psychologist, or others from harm; or (4) to obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. (See also Standard 6.04e: Fees and Financial Arrangements)

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 with the client 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, except when otherwise required by law.

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

V. Test Security and the Release of Test Data and Materials

10. What needs to be considered when releasing test data and test materials to unqualified persons?

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

The Testing Standards (Standard 9.1) note that responsibility for test use is only assumed by, and delegated to, persons with training and experience necessary to handle the responsibility in a professional and technically adequate manner. Concerns regarding test data release to unqualified individuals include: incompetent test interpretation resulting in misguided decisions based on a misunderstanding of the test, test data, test materials, and test reports; an underappreciation of the limitations of  test data and test materials used out of context and without professional guidance; and the potential misuse of data and materials which could have harmful effects on the client, patient, or others. The psychologist's responsibilities in these respects extend to raw test data and test materials, such as responses to test items or recording of observations during assessment that may be contained in test protocols or testing records. 

11. In the era and spirit of open science and the information age, why can’t I simply release test materials?

The critical concerns regarding the release of test materials primarily relate to test security, the potential invalidation of tests, 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 (Standard 9.11). This is important for several reasons.

Disclosure of secure testing materials (e.g., test items, test forms, test responses, test scoring, or test protocols) to unqualified persons may not only render the test invalid for any future use with that individual; doing so may also jeopardize the validity, security, and integrity of the test for other test-takers and other stakeholders. Such releases impose very concrete harms to the general public, e.g., a loss of effective assessment tools; a disruption of research and practice when assessments must change due to a security breach; and a devaluating or nullifying of scores that were previously obtained under secure conditions.

Psychometrically well-developed tests of intelligence, personality, achievement, and other constructs require a considerable investment of time, money, and expertise. Furthermore, there may be a limited number of standardized psychological tests considered appropriate for a given purpose (in some circumstances only a single instrument). Therefore, tests often cannot easily be replaced or substituted when the security of a test is compromised by test takers, administrators, groups, technologies, or in other ways. Test owners and developers may file breach of contract claims against psychologists who violate the test-security terms of their test purchase or lease agreements.

12. What copyright issues are of importance when releasing test materials?

Psychologists are legally and ethically responsible for respecting test copyrights (Testing Standards 9.22, 9.23). Tests and test protocols are generally protected by the federal copyright laws and usually may not be copied without permission of the copyright holder. Consequently, psychologists mandated by law or regulation to provide copies of a test, test manual, or test protocols need to consider copyright laws that may potentially be violated by releasing such materials. Psychologists are encouraged 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. For practitioners responding to subpoenas, see FAQ 16.

VI. Conforming to Federal and State Statutes and Rules, Regulatory Mandates, and Institutional/ Organizational Rules and Requirements

13. What are the relevant parameters for conforming to federal and state statutes and rules?

Federal and state statutes, 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, relying on decisions based on the specific facts of a case, and 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 (Ethics Code, Standard 4.05, 9.04). 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 APA Committee on Legal Issues (2016) statement, Strategies for Private Practitioners Coping with Subpoenas or Compelled Testimony for Client/Patient Records or Test Data or Test Materials, and the Ethics Code standards that concern the conflict between the Ethics Code and the law (i.e., Standard 1.02: Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority).

VII. Releasing Test Data and Test Materials to Third-Party Payers

14. What issues are apparent when releasing test data and test materials to third-party payers?

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 and related test materials when determining a client's eligibility for services or reimbursement for a psychologist who has provided testing or assessment services. Psychologists request that their clients or their legal guardians sign a written release that 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. Releases are generally limited to fulfilling the nature of the request; and releases are recommended to be consistent with the psychologist’s professional training, standards, and judgment (Ethics Code, Standard 2.01. and Testing Standards, Standard 10.1), as well as applicable laws. Psychologists also exert special care concerning release of secure test data and test materials (e.g., protocols, test items), and they inform the requesting parties of relevant ethical standards and any contractual obligations that restrict their release.

VIII. Releasing Test Data and Test Materials When the Organization Is the Client

15. My client is an organization.  Are there any issues I need to be aware of when releasing test data and test materials to that organization?

Psychologists providing services to organizational clients may face special issues whenever disclosing the nature of test data, test materials, and test results (Ethics Code, Standards 4.05, 9.04). Therefore, all standards in the Ethics Code take on unique considerations in the organizational context, just as they do in educational or clinical contexts.

Nonetheless, psychologists retain professional responsibilities to test takers, even when the client is an organization (including agencies and institutions). In such circumstances, psychologists working for organizational clients strive to anticipate possible competing objectives and clarify with both the organizational client and test takers how conflicts can be prevented or resolved. 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 and test materials to individual test takers. In circumstances of legally mandated disclosure of tests or test records in organizational contexts, psychologists are encouraged to 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 (PDF, 358KB) (Society for Industrial and Organizational Psychology, 2018) provides additional guidance on the types of test data and test materials deemed appropriate for release within an organization. Readers are encouraged to consult with this resource, which cautions that test 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 not be reported to third parties who later may be asked to  rate the examinee in a validation study and therefore might be biased by knowing the test scores; and (c) 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.

IX. Role of Psychologists in Forensic Contexts

16. Can I release test data or test materials in response to a court order or subpoena issued by a judicial officer?

Psychologists are generally expected to comply with lawful court orders, but legal requirements vary substantially from state to state. Consequently, psychologists faced with court orders or subpoenas to produce test data are encouraged to secure advice about the governing law(s) in the state where the issue arises, as well as federal and local statutes, rules of procedure, and regulations applicable to specific contexts. Psychologists working in and for organizations are encouraged to notify and seek guidance from appropriate authorities in the respective organization. Private practitioners are encouraged to consult the document, Strategies for Private Practitioners Coping with Subpoenas or Compelled Testimony for Client/Patient Records or Test Data or Test Materials (APA Committee on Legal Issues, 2016).

Legal requirements governing disclosure of test data and test materials may vary substantially from state to state. Psychologists faced with demands to produce test data and test materials are encouraged to secure advice about the governing law(s) in the state where the issue arises as well as federal and local statutes and regulations applicable to specific contexts. Psychologists are also encouraged to refer the Ethics Code (e.g., Standards 4.05, 9.04) and other pertinent standards, as well as applicable professional guidelines (e.g., APA, 2013; Specialty Guidelines for Forensic Psychology, Guideline 10.08: Record Keeping). Psychologists involved in litigation where the disclosure of test data and test materials is at issue, are encouraged to familiarize themselves with the important steps that psychologists can take to preserve the confidentiality and security of test data and test materials short of noncompliance with the law, court orders, and subpoenas issued by a judicial official. As before, private practitioners are encouraged to consult the document, Strategies for Private Practitioners Coping with Subpoenas or Compelled Testimony for Client/Patient Records or Test Data or Test Materials (APA Committee on Legal Issues, 2016).

17. I need to request or obtain secure test data and test materials. What issues are to be considered?

Psychologists who request the release of test data and test materials, or who are affiliated (through employment, paid or unpaid consulting relationships, or other related affiliations) with organizations or agencies making such requests, are strongly encouraged to be aware of all applicable ethical and professional standards. Psychologists requesting test data and test materials, or who are affiliated with organizations requesting them, are strongly encouraged to 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 and test materials. Psychologists may exercise their professional responsibility to assist organizations to appropriately restrict their request for test data and test materials to that which is 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 test data and test materials may also make known their commitment to professional and ethical standards (see, e.g., Ethics Code 1.02: Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority, and 1.03: Conflicts Between Ethics and Organizational Demands) and attempt to inform all parties of appropriate ways to resolve any conflicts to ensure conformity to these standards.

18. Can I reprint or electronically share test items?

In deciding whether to reprint test items, psychologists are encouraged to consider any copyright, non-disclosure, or test publisher/distributor agreements underlying the items, 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 (see FAQ 12). The reprinting or description of individual test items in a publication (e.g., popular press, paper presentation, research article, book, technical report, handout, website) may jeopardize the integrity and security of many standardized tests.

Psychologists generally obtain permission from the copyright holder or test publisher prior to reprinting any test items. Psychologists may also consider appropriate alternatives to providing test items to the public or 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. 

19. Can I use published test items for the purposes of teaching or training?

It is advisable for persons who plan to use test materials for teaching or training purposes to request permission from the test publisher/distributor.  It is suggested that all individuals who have access to test data and test materials be directly supervised by a qualified professional. Psychologists are responsible for maintaining the security of all test data and test materials under conditions that prevent access by unauthorized individuals (Ethics Code, Standard 9.11: Maintaining Test Security). For example, stored test data and test materials are to be carefully safeguarded and be accessible only to supervising psychologists, appropriate storage facility staff, and to students in training who have permission and oversight by the appropriate psychologist.

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.

20. What are my responsibilities for the retention and maintenance of test data and test materials?

The Testing Standards state that test protocols and any written reports are to be preserved when any test data and related test materials about a person are retained (Standard 6.15), and data (e.g., retained on paper, secure electronic data files) are to be adequately protected from improper disclosure (Standard 6.16). The Ethics Code and Record Keeping Guidelines (APA, 2007) contain additional information regarding the retention of psychological records.  For example, the Ethics Code contains

• Standard 6.01: Documentation of Professional and Scientific Work and Maintenance of Records, and
• Standard 6.02: Maintenance, Dissemination, and Disposal of Confidential Records of Professional and Scientific Work.

Also, psychologists are encouraged to determine the need for, and extent of, record keeping of test data and test materials as impacted by federal and state laws (including but not limited to employment laws, HIPAA, practice regulations in clinical settings).

Psychologists are also encouraged to take great care when archiving outdated test results to ensure that they are not inappropriately used later as a basis for interventions, recommendations, or decisions. Test data and relevant test materials are only to be used when they remain appropriate and result in decisions that are valid.

21. What are recommended ways to dispose of outdated/unwanted test data and test materials?

When a new version of a test is published, psychologists are faced with the problem of what to do with the older version. Old versions of the test, regardless of whether they are in electronic or paper form, are to be destroyed in a secure manner, in much the same manner that would occur with patient records. Unwanted paper test data and test materials can be permanently destroyed by the psychologist responsible for maintaining the materials. Planning for proper disposal of assessment instruments is an important consideration, for example when psychologists retire or otherwise cease providing professional services (e.g., career transition, license revocation, serious illness, or death).

American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, & Joint Committee on Standards for Educational and Psychological Testing. (2014). Standards for educational and psychological testing. Washington, DC: AERA.

American Psychological Association. (2007). Record keeping guidelines. American Psychologist, 62, 993-1004.

American Psychological Association. (2013). Specialty guidelines for forensic psychology. American Psychologist, 68, 7-19.

American Psychological Association. (2017). Ethical principles of psychologists and code of conduct. Washington, DC: Author. Available at http://www.apa.org/ethics/code/

Committee on Legal Issues, American Psychological Association. (2016). Strategies for private practitioners coping with subpoenas or compelled testimony for client/patient records or test data or test materials. Professional Psychology: Research and Practice, 47, 1-11.

Society for Industrial and Organizational Psychology. (2018). Principles for the validation and use of personnel selection procedures (5th ed.).  Bowling Green, OH: Author. Available at https://www.apa.org/ed/accreditation/about/policies/personnel-selection-procedures.pdf