Thursday, June 23, 2016

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: 

"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.  

We are still collecting signatures on the Free Nampeyo Petition.

My name is Linda Wiener.  I can be reached at  I have been involved with the research and writing of the book, and have been carefully following the lawsuit against Steve Elmore.  I am a trained scientist with a PhD in entomology.   I have taught throughout the curriculum in the great books program at St. John's College in Santa Fe, New Mexico for over 30 years.  I have experience publishing articles in scientific journals, academic humanities journals, and many venues for the non-academic.  I am an author of both academic and non-academic books. 

 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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