Friday, November 9, 2007

Neuenschwander on IRBs and Oral History Legal Releases

The Fall 2007 issue of the Oral History Association newsletter features Professor John A. Neuenschwander's essay, "What's In Your Legal Release Agreement?" Neuenschwander collected "72 agreements from a wide variety of programs including major universities, libraries, government agencies, local historical societies, and independent oral historians," and offers various observations about what is and is not on them. He does not offer a model release, though we can hope that his research will inform the next edition of his indispensable work, Oral History and the Law.

For purposes of this blog, the most interesting section of the essay is entitled "Institutional Review Board Modified Releases," in which Neuenschwander examines the nine forms of the 72 that had clearly been modified by IRBs to conform with the Common Rule. He presents a paragraph from a typically modified form:

The interview will be conducted in the form of a guided conversation and will last approximately ________. I will be free to decline any question that makes me uncomfortable. Moreover, I have the right to stop the tape recording at any time with no negative consequences. There are no foreseeable risks in doing this interview. The benefit of the interview is to the general public in the form of increased historical knowledge. I recognize that because the interview will be donated to the University of ________ there is no assumption of confidentiality, unless I request it.


Neuenschwander approves of this language, stating "the gulf between the medical or scientific culture of the IRB and the social or humanistic one of the oral historian has been bridged successfully." But I fear he glosses over some potential problems in the IRB imposed language:

1. "The interview . . . will last approximately ________." What is that statement doing there? While it is certainly courteous to ask a narrator to set aside a certain amount of time, interviews are quite unpredictable, and my sessions have ranged from 30 minutes to more than seven hours (with a break for lunch). Including an estimate of time in the release form elevates guesswork to an ethical duty, perhaps even a contractual obligation. This strikes me as a bad idea.

2. "There are no foreseeable risks in doing this interview." This statement is contradicted by Neuenschwander's finding that other forms asks narrators to indemnify the interviewer "from any and all claims or demands or lawsuits arising out of or in connection with the use of the interview, including but not limited to any claims for defamation, copyright violations, invasion of privacy or right of publicity." So someone is foreseeing risks from oral history interviews, and even that list doesn't consider the harms to reputation added to the Common Rule in 1991.

3. "There is no assumption of confidentiality, unless I request it." This is certainly an improvement over other IRB boilerplate that assumes confidentiality as the norm. But the statement does follow the OHA guidelines in allowing confidentiality in some circumstances. This raises questions of how far the interviewer must go to defend confidentiality against subpoenas, physical theft, ineptness by the depository, and so on. In another section, Neuenschwander notes that of the roughly 25 forms that promised confidentiality, only three qualified that promise with mention of subpoena and the Freedom of Information Act. Thus, the IRB language is incomplete.

Oral historians need to work out language that can alert narrators to the real risks of speaking on the record without spooking them unnecessarily. If IRBs can help in this task, all power to them, but nothing in Neuenschwander's essay suggests that they can.

2 comments:

John Neuenschwander said...

While I am appreciative of your efforts to remove all oral history research from IRB oversight, I feel compelled to correct the record regarding some of the observations about my article that you made in your recent blog.

1. After presenting the IRB consent language that I offered in my article you quote me in such a way as to significantly change my meaning. My original statement was that the nine IRB modified releases "...suggest that perhaps on these campuses at least, the gulf between the medical or scientific culture of the IRB and the social or humanistic one of the oral historian has been bridged successfully." By ellipsing out my qualifying language you create the mistaken impression that I am an unabashed advocate of IRB control.

2. The assumptions you draw from your analysis in #2 & 3, both suffer from a common ailment. In the first one you indicate that because I discuss the idemnity clauses that seven of the agreements I reviewed contained, that this directly contradicts the "no foreseeable risk" assurance in the IRB modified agreement I quote from. But I provide no indication in the article that such language was found in this agreement or any of eight other IRB modified agreements I reviewed. Hence, this claim is without foundation and supporting evidence. The same problem appears in #3. There is no match presented by me between the three agreements that contain warnings about possible FOIA/subpoena and the nine IRB modified forms I examined. In each instance you seriously mischaracterize my scholarship.

I wish you well with your blogging efforts but can only hope that they is more factual accuracy in future endeavors.

Prof. Neuenschwander
History Dept.
Carthage College

Zachary M. Schrag said...

Thank you for your comments.

I am sorry if you feel I mischaracterized your specific findings, and I encourage my readers to read the original article. Unfortunately, it is not yet online. (It may eventually appear at http://alpha.dickinson.edu/oha/pub_nl.html.)

The question I posed about the article is whether IRBs can help oral historians improve their consent forms. The evidence in your article suggests only that IRBs and oral historians, working together, can turn a blind eye to the real risks of recorded interviews. For this reason, I see no successful bridging of gaps between IRBs and oral history.