NPRM: Will Political Science Interviews Require Review?

What do we know about interview research under the NPRM?

Whatever its final provisions, the new Common Rule seems bound to be much harder to follow than, say, Canada’s TCPS2. The proposed rule is full of cross references from one section to the next, and often to other documents, such as Subpart D or the Belmont Report. This makes it hard to figure out what it says about any given form of research.

Here’s what I’ve been able to figure out about one form: interview research. My sense is that the NPRM proposes to eliminate IRB review for the vast majority of conversations between consenting adults, but it may unintentionally impose review on projects that do not merit it.

Excluded

The NPRM proposed rule would exclude:

1. “Oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information is collected.” [§_.101(b)(1)(ii).]
2. Interviews with adults where the “information is recorded by the investigator in such a manner that human subjects cannot be identified, directly or through identifiers linked to the subjects.” [§_.101(b)(2)(i)(A).]
3. Interviews with adults where “disclosure of the human subjects’ responses outside the research would not reasonably place the subjects at risk of criminal or civil liability or be damaging to the subjects’ financial standing, employability, educational advancement, or reputation.” [§_.101(b)(2)(i)(B).]

Note that §_.101(b)(2) excludes the second and third exclusions for subpart D, which governs research with children, which is why I’ve inserted “with adults.” I wish the proposed rule relied less on difficult-to-follow cross references and more on plain English.

Earlier I fretted that folklore had not gained an exclusion, but following Julia Gorey’s comments at the October 20 Town Hall, I am more optimistic that the vast majority of folklore projects would gain exclusion under §_.101(b)(2)(i)(B). Folklorists can correct me, but I wouldn’t think that their projects would “reasonably place the subjects at risk of criminal or civil liability” etc. For instance, a project like the Library of Congress American Folklife Center’s Inauguration 2009 Sermons and Orations Project would be excluded from review.

Exempt

The proposed rule would exempt:

1. Interviews where “the information obtained is recorded in such a manner that human subjects can be identified directly or through identifiers linked to the subjects” and investigators “implement and maintain reasonable and appropriate safeguards as specified” by the Secretary of HHS. [§_.104(e)(1); [§_.105(a)]

In other words, if you promise confidentiality, you don’t need IRB review, but you do need to take reasonable measures to keep that promise.

But what if you don’t promise confidentiality?

What about public figures?

What about disciplines other than history and journalism, such as political science and law, that ask tough questions to be answered on the record? The NPRM scraps the special exemption for research on “elected or appointed public officials or candidates for public office” on the grounds that “it does not seem appropriate to single out this category of subjects for different treatment in this way.” (80 FR 53951 {September 8, 2015}). It neither offers the reasoning behind this conclusion, draws on 34 years of experience with the exemption, nor explains how interviews with public officials would be treated under the proposed rule. Would researchers need full IRB review to interview members of Congress?

At the very least, the public official exemption should be preserved.

Better still would be an exclusion or exemption not only for public officials, but for all public figures. As TCPS2 notes,

Some research, involving critical assessments of public, political or corporate institutions and associated public figures, for example, may be legitimately critical and/or opposed to the welfare of those individuals in a position of power, and may cause them some harm. There may be a compelling public interest in this research. Therefore, it should not be blocked through the use of risk-benefit analysis. Such research should be carried out according to the professional standards of the relevant discipline(s) or field(s) of research.

What about public comment?

And what about requests for public comment, like the NPRM comment process itself? All Federal Register comments are now publicly posted, so they wouldn’t be exempt. Could they be excluded under §_.101(b)(2)(i)(B)?

Perhaps the “reasonably” language is enough to exclude on-the-record interviews and requests for comment. But I would prefer to see specific exclusion for all on-the-record interviews with adults, whether concerning journalism, history, or any other subject. The federal government has no business policing these interactions.