Protecting Test Secure Information: Ensuring Valid Future Test Use is an Obligation Spanning All Psychology Specialties

Test security involves protection of test materials from release to non-psychologists, which would include actual tests and test manuals, as well as test data forms showing questions and answers, live third-party observation of testing, or audio or video recording of testing. The AACN test security position paper outlines a number of negative effects that can occur if test security is not ensured:

1. Damage to test effectiveness
2. Inaccurate conclusions may be inappropriately applied to clinical, educational, and forensic examinees. Iatrogenesis, failure to provide appropriate treatment, and wasting of finite societal resources may occur.
3. Years of test development costs and professional time investment are lost.
4. Detriment to society
5. Impact to public safety (e.g., test results on pilots and police officer candidates may not accurately represent critical skills and characteristics).
6. Impact to judicial decisions (e.g., judges and juries relying on psychological and neuropsychological test data may be misinformed, leading to erroneous decisions).
7. Impact to the educational system (e.g., psychometric results used to document presence or absence of salient learning disorders, and to establish legitimate need for academic accommodations, may be inaccurate).
8. Impact to the medical care system (e.g., patients can learn to ‘game’ the system to obtain medications, such as stimulants and opiates).
9. Impact to public and private services and resources (e.g., feigning of conditions may result in unjustified disability status and compensation).
10. Coaching of examinees by attorneys
11. Multiple surveys have clearly identified attorney willingness to coach clients in advance of psychological and neuropsychological testing (e.g., Spengler, 2020; see also discussion in Boone et al., 2022).

We are aware that some of our specialist colleagues take the position that all test materials, including questions, answers, manuals, and interpretive guidelines, must be released to attorneys to ensure a “level playing field” (i.e., adequate cross examination). We believe this position to be based upon a false premise and note that this proposition was evaluated in an Interorganizational Practice Committee* (IOPC) position statement (Boone et al., 2024; see Footnote) that deconstructs this notion. In fact, when attorneys attempt to serve as “proxy” experts in analyzing psychological test information for the purpose of cross-examining expert psychology and neuropsychology witnesses, there is a substantial risk of misinformation being presented to the finder of fact. Those with expertise in the technical aspects and salient interpretive findings of psychological and neuropsychological testing are competent to identify and present reliable and valid information to legal decision makers. As stated in Boone et al. (2024), “Simply put, attorneys have no formal training or expertise in analyzing test data, and therefore need to retain experts for that purpose.” Moreover, when the role of test security relates to tests designed to ensure the integrity of examinations that directly affect attorneys, legal professionals reach the conclusion that test security is paramount. As noted in Boone et al. (2022), when the National Conference of Bar Examiners (NCBE) and members of organizations that protect the Law School Admission Test (LSAT) and other national tests conducted a joint test security conference, they concluded that “the importance of maintaining test based on those scores cannot be overemphasized, because cheating, regardless of which form it takes, erodes the validity of the interpretations of test scores and then undermines the legitimacy of decisions.” Congruent with the perspective that cheating should be disallowed, with the same purpose in mind, select state laws specifically establish that psychological test materials are not to be disclosed in any type of administrative or judicial proceeding, typically with the directive that, as necessary, these materials should be shared only between licensed psychologists. 

A typical overture intended to placate experts reluctant to share test materials with attorneys or allow third party observation or recording of evaluations is issuance of a judicial protective order that limits disclosure and future use of discovery materials. However, the IOPC, in a recent position paper (Boone et al. in press), described protective orders as illusory safeguards, rather than viable solutions, and identified eight bases in support of the conclusion that protective orders offer insufficient protection:

1. Protective orders are not viable in the digital age given that digitization provides the ability to rapidly upload, archive, and distribute protected test materials in the absence of any meaningful oversight.
2. When protected test information is released to attorneys under protective order in litigated cases, the “fox is guarding the hen house,” in that attorneys can benefit financially if they are able to access test materials and coach clients as to how to manipulate test performance.
3. When a protective order breach occurs, psychological and neuropsychological tests are more vulnerable to damage than other “trade secrets” because future use is compromised.
4. Protective orders are not adequately enforceable or enforced.
5. Protective orders may be challenged long after the case at issue has been concluded.
6. The sheer number of requested protective orders at the current time exponentially increases the likelihood of breaches of protected test information.
7. Access to protected test information under protective order extends well beyond attorneys.
8. Sanctions for protective order breaches are rare, typically minor, and therefore not adequately deterrent

Key to judicial decisions related to the necessity for protection of psychological and neuropsychological test materials is evidence of the consensus among psychology practitioners against test disclosure to non-psychologists. To this end, the IOPC conducted a 2023 national survey of psychologists, who were primarily neuropsychologists and whose practices included clinical or forensic assessment (Beattey et al., under review). The opinions expressed by the 628 licensed respondents strongly favored keeping test materials secure: