The issue of whether or not to release raw psychological test data has always posed a host of clinical, legal, and ethical dilemmas. The most frequent situation in which this becomes an issue, is when a psychologist is asked to release raw data in the course of some litigation. Traditionally, we have been able to withhold such data based on the ethical standard that states that we can only release raw data to someone qualified to interpret it.(2.02 b of the 1992 Code of Ethics) On the other hand, from a legal point of view, the opposing side in a litigated manner is entitled to all material on which the psychologist is basing her or his opinion. In the past, the Committee on Legal Issues of APA, as well as the APA Ethics Committee has suggested a multi-level strategy to deal with the conflict. Initially, it was suggested that the psychologist who receives a request( or subpoena) for raw data, first write to the requesting party, explaining that the Code of Ethics directs us to release raw data only to another professional qualified to interpret it, namely another psychologist, and ask the attorney to provide the name of the psychologist who will be reviewing the data. The psychologist can then send the raw data directly to the other psychologist in accord with the ethical standards. If the attorney refuses to provide the name of the psychologist, then the psychologist has been urged to file a motion to quash or a motion for a protective order with the court, explaining why the data should only be released to another psychologist. In the past, this strategy has been, for the most part successful, with courts rarely demanding that the psychologist turn over data directly to the attorney. However, if the court were to do so, the psychologist could release the data, because she or he is then following a lawful court order. There is no ethical violation in following a lawful court order, providing there is documentation that the psychologist attempted to notify parties involved of the relevant ethical standards involved.

In 2002, the new Code of Ethics of the APA was adopted by APA Council. The Code was sensitive to issues raised by HIPAA. Essentially, the client now can direct the psychologist to release the record to anyone the client designates. This obviously raised many concerns among psychologists who were concerned about materials getting into the hands of people not qualified to interpret it. The Ethics Revision Task Force made several changes in an attempt to address these concerns. First, it attempted to distinguish between test data and test materials ( 9.04 9.11 of the 2002 Code of Ethics). Test data referred to those materials or responses generated by a client, such as responses to a psychological test. Thus, answers to a WAIS III question, the answers written on an MMPI -2 answer sheet, or responses to a Rorschach card would all be considered as test data; since they were generated by the client, they were considered to be subject to the client’s wishes regarding their disclosure. Test materials, on the other hand, would refer to , for instance, the MMPI -2 questions, the Rorschach cards, or the WAIS-III questions without any client responses on them. These could be withheld under the doctrine of test security, since the client has not yet put answers on them. Of course, as some have pointed out, WAIS III answer sheets have both the questions and the client’s responses on them, making the above distinction somewhat murky.

In 2001, I was appointed Chair of the Division 42 Task Force to address the upcoming Ethics Revision, and immediately, the wording of this section became of immense concern to us. We suggested, and the APA Task Force eventually accepted our suggested wording. We wanted to express our position, that despite a client’s rights under HIPAA, we were still concerned about misuse of data. The new language therefore reflected the fact that while a client can designate a recipient of their records , the psychologist still has an affirmative obligation to prevent harm to the client or misuse of the data., recognizing that ultimately, the law may direct release of the records. In many ways, this parallels the strategy outlined earlier, that we document our efforts to keep the data out of the hands of those who may misuse it or use it in a way that may harm the client, , but may release them when the law directs us to do so. In the earlier version, it may be a judge who directs the release; currently, it can be seen as a judge or a legal authority citing HIPAA.

Some psychologists have in fact taken the stand that any release to a third party not qualified to interpret the data would result in harm to the client or misuse of the data, and therefore take the position that they will hold back the data until ordered to release it.

Many states also have provisions in their state law that a psychologist should withhold raw data if that withholding would be more protective of the client than a release pursuant to HIPAA. This, of course, makes it very clear that if a psychologist chooses to withhold the data, she or he must be prepared to document why release would be harmful to the client or result in misuse of the test.