Confidentiality and Peer Review--A Legal and Ethical Inquiry

Confidentiality has become a central issue in the case of Harvard v. Elmore over Mr. Elmore's book In Search of Nampeyo.  It appears that the confidentiality of Mr. Elmore's manuscript was breached by both an editor and a reviewer.  However, even though Harvard began the suit, Harvard is claiming the confidentiality of the peer review and editorial processes as reasons to deny Mr. Elmore evidence that he needs for his own defense.  This essay will examine some of the legal and ethical issues around confidentiality and peer review.

Academic authors typically go through a peer review process when they submit a manuscript.  The most common form of this process involves an editor sending the manuscript to experts in the field who read it, write comments, and recommend whether the press should publish it.  Commonly, the reviewers are anonymous.  The anonymous peer review system is defended because of the need for complete honesty on the part of reviewers.  It is assumed that reviewers who have harsh things to say about a manuscript would not be able to say these things if their names were revealed.  The system is also defended on the grounds that it protects younger scholars from retaliation by more famous and established scholars.

On the other side are arguments that anonymous reviews allow for people with conflicts of interest to suppress a work that really does meet high academic standards.  Authors also worry that a work will be suppressed by a reviewer who then turns around and steals the research or passes it on to a competitor.   Anonymous peer reviewers for grant proposals are suspect on similar grounds.  Researchers may agree to review grant proposals in order to steal exciting new ideas from young researchers.  Anonymity certainly facilitates these kinds of activities, but it is rarely possible to establish the truth of such allegations as the reviewers' identities are protected by academic custom and vigorously defended by institutions. 

 Nearly all academics have stories of what they perceive as the subversion of the peer review process. There are many Internet sites and blogs where horror stories of reviews, reviewers, and editorial decisions are recounted.  There is even a Facebook page Reviewer 2 Must Be Stopped:

You know Reviewer 2:

The one who wrote "this has already been done" to reject your paper, without any references to the literature...

The one who sat on your paper for 6 months while they frantically ran their competing experiment...

The one who goes on an on about how the method you used sucks (except s/he misread the paper and you didn't use that method at all)...

The one who says "this could all be explained by attention" when you compare anything to anything (this is called attention-tology, and it works in getting your paper rejected even if attention has to be attributed to sub-atomic particle, an aubergine, or the GDP of a developing country)

Oh yes you know Reviewer 2...

Note: Reviewer 2 is not a number, it's a state of mind.  

Occasionally, conflicts get into the courts, but court rulings about the circumstances under which institutions must reveal documents kept as confidential are not predictable or consistent.  Peer review is used by publishers, by tenure and reappointment committees, and in health care environments to review how particular cases were handled, to name some common circumstances.  Naturally, people involved in criminal and unethical activities will be vociferous about the sanctity of concealing reviewers' names or the internal fact finding processes.  But this is not the only scenario under which institutions seek to conceal this information.   Let's examine some circumstances in which courts have  decided that this confidentiality can be overridden and that documents or reviewers' names must be revealed. 

Most cases that go to court come from the health care field.  These AMA case summaries show the many conflicts hospitals face when their own peer review process, to determine what went wrong with a case, are subject to subpoenas by angry families seeking to know the same information to recover damages.  The American Medical Association at all times upholds the principle that peer review should be confidential.  The courts don't always agree.  Each side has a legitimate position here.  On the one hand, hospitals try to determine what went wrong in a particular case to guard against a repeat of an avoidable problem.  However, if their own internal investigation can also become public in a wrongful death or other malpractice case, hospitals will be reluctant to even conduct these investigations.

In academia, peer review is used for reappointment and tenure decisions.  In Univ. of Pa. v. EEOC::493 U.S. 182 (1990), the Supreme Court heard the case of an Asian-American woman denied tenure who sought the confidential records of her own and others' tenure decisions.  She alleged that her negative decision was based on racial and sexual discrimination, and sought to prove that four men granted tenure were not more qualified than she.  The court agreed that these records were necessary for her to make her case.  The court balanced the university's right to make its own academic decision in a confidential way against the right of people not to be discriminated against in employment.  The court wrote: "The costs that ensue from disclosure, however, constitute only one side of the balance. As Congress has recognized, the costs associated with racial and sexual discrimination in institutions of higher learning are very substantial.  Few would deny that ferreting out this kind of invidious discrimination is a great if not compelling governmental interest."  

The justices also weighed in on the proclaimed necessity of confidentiality in peer review:  "In addition, the claimed injury to academic freedom is speculative, since confidentiality is not the norm in all peer review systems....Finally, we are not so ready as petitioner seems to be to assume the worst about those in the academic community.  Although it is possible that some evaluators may become less candid as the possibility of disclosure increases, others may simply ground their evaluations in specific examples."

Many journal editors agree with this assessment.  Open Review is becoming more common, a process in which the paper and the reviews, signed by the reviewers, are all posted online so readers can evaluate the quality of both the paper and reviews.  One reason for this is to increase the transparency of the whole process, thereby increasing the confidence of the scholarly community in the integrity of the system.  A second reason, new to me, is a movement toward counting peer reviews as publications in their own right.  In this way, scholars, especially more junior scholars, can turn the time and effort they expend on peer review into a publication that can be listed on their resumes.  A conversation has sprung up around the question of Who "owns" peer reviews?.

In the paper US Legal Principles and Confidentiality of the Peer Review Process, Parrish and Bruns enumerate some of the principles used by the courts to make these decisions:  "Successful motions to quash have been premised on the journalist's privilege and the scholar's privilege, as well as the First Amendment  ....Inherent in every example of a privilege that shields documents or individuals from requests for discovery is a tension between society's need for relevant evidence and the need to protect a nonlitigant's confidential information from unwarranted disclosure....the court will give more weight to interests that have a distinctly social value than to purely private interests."  Journals cite editorial privilege, peer review privilege, and the self-evaluative privilege....however, courts also recognize "[The author's] interests cannot be protected unless he is able to retain control of the article until it is complete; and where the purpose of the article is publication, complete must be defined as published.  Only in this way is [the author] able to preserve the integrity of his work, protect his intellectual property and safeguard his reputation and credibility...[T]he product of [the author's] efforts is fairly considered confidential."

In the case of Steve Elmore's manuscript for the book that became In Search of Nampeyo: The Early Years, 1875 - 1892, one reviewer recommended rejection, one acceptance with revision, and one acceptance as is.  The reviews and Mr. Elmore's replies to them are now public court records.  Harvard eventually rejected the book and returned all rights to Mr. Elmore, recommending that he publish it elsewhere as described in Shouldn't A Contract Mean What It Says?  Mr. Elmore followed this recommendation and self-published the book.  The book won four national awards and was well received.  Harvard sued for copyright infringement, breach of contract, and false designation of origin.  The court ruled against Harvard's copyright claims, but the rest of the charges are ongoing.  Harvard has used the confidentiality argument to prevent Mr. Elmore from learning the name of the first reviewer or gaining access to documents from a museum professional who, documents suggest, was involved in a breach of confidentiality of Mr. Elmore's manuscript while it was under review.  The court quashed a subpoena for documents from this museum professional, whose name is on the masthead of the journal and who is thanked in the acknowledgements, of a paper, entitled "Righting the Record" American Indian Art Magazine (pp. 68 - 81) meant to debunk Mr. Elmore's thesis before his book was even published. 

As discussed in Attribution of Unsigned Pueblo Pottery, "The number and specificity of the points about which Mr Schramm takes issue with Mr. Elmore is disturbing, as the manuscript was still under review at this point and the contents should have been confidential."  A second breach of confidentiality also occurred. Discovery documents show that the editor and a research associate at the Peabody Museum were discussing publishing Mr. Elmore's work without his knowledge or involvement.  This is detailed in A Researcher's Worst Nightmare at Harvard University.  The book is now under a temporary injunction until the case is settled, at which point it will either be available again for sale or all remaining copies will be ordered to be destroyed.  

The judge has allowed an email exchange between the first reviewer and the editor to be severely redacted.  Consider these statements from the reviewer that were not redacted: 

"I AM ANONYMOUS"

"Again, I never said any of the following...."

"Those very points would be used as selling points and because he is a dealer, you would be validating them and enabling him"

"You cannot risk making the Peabody Museum a laughingstock"

"Keep in mind that this is not the first time he has approached a publisher with this subject (I am not supposed to know that....)"

"With all the things I had heard about this MS, my E.S.P. was what made me call you"

This reviewer is intent on keeping his name from being associated with his own statements.   It is one thing to write an anonymous negative review as part of your job as reviewer; it is another to use that anonymity to reveal confidential information, convey hearsay information, and libel an author in order to get a manuscript rejected.  It is likely that this reviewer is the very museum professional who seems to have breached the confidentiality of Mr. Elmore's manuscript and worked with another author to publish an article hostile to Mr. Elmore's thesis.  Should this reviewer's name be protected by the court and should correspondence between this reviewer and others who appear to be involved in efforts to assure that the manuscript be rejected, activities that go far beyond the mere writing of a negative review, also be protected from discovery efforts by Mr. Elmore?

Here we have a clear conflict between two legitimate interests recognized by the court in the excerpts cited above.  The peer review, editorial, and self-evaluative privileges which protect the anonymity of a reviewer and any board deliberations are at odds with the author's privilege to have his work remain confidential until publication.   Harvard has sued Mr. Elmore, and the courts are blocking evidence necessary for Mr. Elmore to find out the facts and defend himself adequately. Thus far, the court has sided with Harvard and thwarted Mr. Elmore's requests to gain further evidence about breaches of confidentiality. 

Also implicated here is the editor Joan O'Donnell.  Less has been written on this topic, but Who Rules the Ruler? On The Misconduct of Journal Editors is a good place to start.  The authors note that the "social and economic power unbalance between authors and publishers suggests the importance of alternative solutions before or instead of bringing a lawsuit to court."  They favor "effective regulatory bodies so as to achieve and maintain a culture of research integrity..."  And finally, the first issue of a new journal Research Integrity and Peer Review  appeared last month.  The aim of this journal is to fill in gaps in our knowledge about the effectiveness of peer review and the various decision making processes with actual research on these topics.  

 This is the sixth in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with another contract in this case, Harvard's claim of "irreparable harm", and abuse of the legal system.

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Shouldn't a Contract Mean What it Says? I: The Return of Rights Letter

Note:  This is the first entry of a two part analysis of the contracts at issue in Harvard vs. Steve Elmore and the book In Search of Nampeyo: The Early Years, 1875 - 1892.

In this essay I will look at the controversy around the return of rights or Formal Notification letter that was delivered to Mr. Elmore in January, 2014 when the Peabody Museum Press rejected the manuscript of In Search of Nampeyo.  Mr. Elmore read this letter, did his due diligence by checking its meaning with two attorneys, and then self-published his book.   Here is the letter: 

As you can see, the letter returns to Mr. Elmore “all rights in the manuscript…including all versions of the manuscript submitted to the Peabody Museum Press” and that “The Board recommends that you find a magazine or trade publisher…to publish the work.”  Orally and in later emails, Ms. O’Donnell recommended two university presses and a particular trade publisher as alternative places to publish the manuscript.  There are no clauses in this document reserving rights for the Peabody Museum Press or for the Peabody Museum.   There are no constraints or special conditions put on Mr. Elmore’s ability to publish.  While particular venues for publication are suggested, he was not required to use any of these venues.  

This Formal Notification is a legal document written on behalf of the whole Editorial Advisory Board, which included Jeff Quilter, the Peabody Museum director, Steven LeBlanc, the Director of Collections, and Project Manager Donna Dickerson, among others.  Mr. Elmore read the letter as representing the position the Board took with regard to his manuscript.

The original book contract, called the “Letter of Agreement”, defines “manuscript” as “electronic and hard copy; including front matter, text, bibliographic references, copies of illustrations, and figure captions.”  It also states that Mr. Elmore’s book was a “work for hire”.  The United States Copyright Act says all rights to a work made for hire vest originally in the author of the work, in this case Harvard. Because all rights, including publication rights and rights of copyright, were initially vested with Harvard when Mr. Elmore was working for Harvard under the Letter of Agreement, these same rights were returned to Mr. Elmore in the Formal Notification letter.

However, In their suit against him, Harvard claims that “manuscript” only refers to the text, and that Mr. Elmore had not been given permission to publish the photographs he took while doing research in the Peabody Museum collections.  I will examine the complex array of issues around the photographs in my next blog entry.  For the sake of understanding how the Formal Notification letter should be interpreted under New Mexico law, we need to turn for guidance to New Mexico case law and some Uniform Jury Instructions. 

Using New Mexico case law we learn that language in a contract, if not specifically defined, is taken as having its customary or “dictionary” meaning and a term must be interpreted “in its usual, ordinary, and popular sense”, “…clear and unambiguous clauses must be accepted as the expression of the intent of the parties, and enforced by the courts as written.”….“Resort will not be made to a strained construction for the purpose of creating an ambiguity when no ambiguity in fact exists” (Battishill v Farmer's Alliance).   In the Formal Notification letter, “all rights” would mean exactly that. Harvard attempts to read into this contract a meaning different from the clear words on the page and to insist that this contract be understood according to other facts or principles not stated; according to New Mexico law, this should not be successful. Any uncertainties as to meaning “must be construed most strongly against that party which drafted the contract” (Schaeffer v.Kelton).  Mr. Elmore should not be required to guess at any secret meanings or intentions.  He is required to read and follow the contract as delivered to him, especially as he had no part in drafting it. 

Harvard offers a strained reading of this letter that requires many additional assumptions. For instance, Harvard claims that the “10 - 15 high quality existing Peabody photographs” were meant to substitute for over 100 ceramics, carefully arranged in groups, that Mr. Elmore used to demonstrate his thesis.  Harvard insists that this offer of free photographs has the obvious meaning, without their stating it explicitly, of a prohibition on Mr. Elmore using his own photographs.  Ms. O’Donnell admitted in court testimony at the injunction hearing (p. 124) that there would be “very little value” to Mr. Elmore's work without his own photographs, yet Harvard insists he should have understood the letter in this nonsensical manner.

When questioned in her deposition (transcript in preparation) about the offer of photographs, Ms O’Donnell, the author of the letter, seemed to have no idea what she meant by it, she "was not saying one way or the other” whether the offered photographs were meant as substitutions or in addition to Mr. Elmore’s photographs.  Suddenly, after litigating this case for a year, Harvard offered a new interpretation of this phrase in their latest motion for summary judgement on the Permission to Photograph Collections contract.  Now, these photographs are starter photographs, and not the substitutes for all of Mr. Elmore’s Keam collection photography that Harvard had insisted on all along.   This serves to demonstrate the very poor quality of this contract.  The editor does not seem to know what it means and Harvard’s attorney feels free to change his own interpretation at will to fit present circumstances.  Mr. Elmore understands this phrase to mean only what it says; it is an offer of 10 - 15 existing photographs from the Peabody Museum that he can use in his book free of charge if he wants to.  That is what the contract says.

In addition to controversy about the meaning of the Formal Notification letter, there is also uncertainty about its status.  The judge ruled that the Formal Notification, on which Mr. Elmore relied when he published his book, was not part of the contract because Harvard “could have written something different” in that letter.  “The contract does not require Harvard to return the rights if the manuscript was not approved for publication...Consequently, Harvard’s alleged failure to honor its subsequent decision to return rights to Mr. Elmore never denied Mr. Elmore of his “reasonable expectations arising from the Contract.” (Case 1:15-cv-00472-RB-KK  Document 137 Filed 04/22/16  P. 10).   This ruling confuses me; I think it means that since the original Letter of Agreement did not have a termination clause that specified exactly what would happen with the manuscript if the press decided to reject it, the Formal Notification letter is not to be strictly construed as part of the Letter of Agreement. 

However, Harvard did choose to write and deliver exactly the letter that Mr. Elmore relied on when he made his decision to publish the manuscript.   Mr. Elmore would naturally consider the definitions of “work for hire” and “manuscript” from the Letter of Agreement and read and follow the policies in the Permission to Photograph Collections form (more on that next time) when making his choices.  If we look at Luther Wilson’s expert testimony (p. 14 - 20), he includes a well written, professional Publishing Agreement which has, for instance, specific arbitration and termination clauses.  This would have been preferable to the vaguely worded Letter of Agreement that Mr. Elmore and Ms. O’Donnell signed.

Rather than being a part of the contract in a strict sense, the Formal Notification letter would now be considered an “accord and satisfaction” under New Mexico law.  According to the Uniform Jury Instructions, this apples “to all transactions where discharge of a contract duty occurs through acceptance of something in substitution”  (UJI 13-836).  In this case, Mr. Elmore accepted the return of rights to his manuscript and the ability to publish it elsewhere in lieu of the Peabody Museum Press publishing his book.  Harvard offered this, and Mr. Elmore accepted it.   

The fact that Harvard is now suing Mr. Elmore for doing exactly as they recommended can be viewed under the doctrine of “promissory estoppel”.  The elements of promissory estoppel are “(1) An actual promise must have been made which in fact induced the promisee’s action or forbearance; (2) The promisee’s reliance on the promise must have been reasonable; (3) The promisee’s action or forbearance must have amounted to a substantial change in position; (4) The promisee’s action or forbearance must have actually been foreseen or reasonably foreseeable to the promisor when making the promise; and (5) enforcement of the promise is required to prevent injustice”  (UJI-13-815).   

In this case, the return of rights and recommendation to publish elsewhere were clear and Mr. Elmore relied on the promise and invested the time and money to ready the book for publication and to print it.  Harvard, who recommended this course of action to him, could have reasonably foreseen that this would occur.  A manifest injustice would occur should Harvard prevail in its claims against Mr. Elmore in this instance.  Harvard’s own interpretation of the Formal Notification letter amounts to denying Mr. Elmore the opportunity to publish the fruits of his 25 years of research together with the evidence he had created in the form of pottery arrangements. The Peabody Museum enjoys the many benefits of the work Mr. Elmore did for them, while under contract to produce a book, in terms of increase in the prestige and value of their Keam collection and use of his attributions of pottery to Nampeyo.  

The Formal Notification letter was signed by editor Joan O’Donnell, but written on behalf of the entire Editorial Advisory Board.  Mr. Elmore naturally thought that the letter included the input of others on the board who represented the interests of the Peabody Museum (director Jeff Quilter and director of collections Steven LeBlanc) and the press (production manager Donna Dickerson).  Though Joan O’Donnell stated in her testimony at the injunction hearing that she could have written whatever she wanted in the letter “subject to…review by attorneys or by museum policies” (p. 115), there is no evidence at all that anyone else helped draft the letter or reviewed it before it was sent.  It seems that everyone involved, including Harvard’s own attorneys, simply accepted, without question or any wider inquiry, Ms O’Donnell’s personal account of and interpretation of this letter.  As was also the case with their copyright infringement charges, Harvard sues first and asks questions later.

 This is the fifth in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with another contract in this case, legal aspects of peer reviewer anonymity, and abuse of the legal system.

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