The guarantee of confidentiality serves to protect all persons involved in a procedure and it also applies beyond the conclusion of a case. On the one hand, confidentiality protects those who approach the panel from possible disadvantages that may result from such an inquiry. No scientist may suffer any disadvantage as a result of his or her decision to contact the Ombudsman for Science. On the other hand, of course, the person to whom a reference to a possible violation of rules or scientific misconduct refers must also be protected from unjustified accusations. To be able to guarantee this protection, confidentiality is demanded from all parties at the beginning. A breach of this confidentiality will be considered by the Ombudsman for Science as a breach of the rules of good scientific practice and, if appropriate, will be referred to the relevant misconduct committee. Moreover, the ombudspersons of universities are bound to secrecy, if only because they are dealing with information that they learn officially.
However, if the investigation of a matter reveals a reasonable initial suspicion of scientific misconduct of considerable weight that cannot be corrected, the Ombudsman is encouraged to report the facts to the appropriate Commission for the Investigation of Scientific Misconduct. In cases of falsification and fraud, the basic rule of procedural confidentiality does not apply to investigative commissions.
Confidentiality and judicial proceedings
In the reporting year 2015, the Ombudsman was again confronted with cases that were already pending before the courts or in respect of which a court case had been announced, or. foreseeable. If the subject matter of the dispute in the legal proceedings is identical or partially congruent with a possible processing by the ombudsman, the ombudsman board will not take action because the confidentiality of information from an ombudsman procedure might not be maintained. There is a danger that facts that have come to light under the protection of assured confidentiality are introduced into a lawsuit by one side for its own benefit; there is even a danger that such confidential proceedings are only made pending in order to close an existing gap in the evidence. For this reason, the Ombudsman Board does not take any action in cases that are pending or have been announced or are. foreseeable court proceedings on the same factual material.
Involving lawyers in the internal procedure
Institutions are not infrequently confronted with the fact that the side affected by an allegation involves legal counsel in the course of ongoing investigative proceedings concerning possible (serious) scientific misconduct. The attorney shall advise or represent the side affected by the allegation; often, requests for inspection of files are made to the misconduct commission.
In a proceeding to investigate scientific misconduct "in the field" (z.B. by a university) it is an internal procedure to determine the facts of the case, which takes place under fundamental confidentiality. It is not an administrative procedure in the sense of the Administrative Procedure Act, but is intended to prepare the decision whether to initiate an administrative procedure. Third parties may not be involved in such internal procedures, which are not aimed at generating an externally effective decision, at any rate if the university's statutes define this in such a way. Then it is not permitted to have "external" persons participate in any interviews in which the institution allows the participation of persons of trust (lawyer o.a.). This does not exclude the participation of a trusted person from the institution itself.
Regarding the inspection of files different regulations exist with the different ombudsman and misconduct offices. The Ombudsman for Science, for example, does not generally grant access to its documents, but decides on a document- and case-dependent basis and with the respective required consent of the parties involved whether certain documents are forwarded to the other party
If an institution intends to grant access to files or if its rules assure this to the parties involved, then – for the protection of whistleblowers, for the protection of third parties or in the investigative interest of the investigative commission – where applicable. individual passages are blacked out or parts of files are filed out. Especially if the institution has promised the whistleblower anonymity from the other party to protect him/her from possible "revenge acts," this protection may be jeopardized by an inspection of the files. Similar protective mechanisms may also be necessary under certain circumstances for experts consulted for the substantive assessment of cases.
Involvement of lawyers in external decisions
In the clarification of possible cases of scientific misconduct by the commission responsible for it "on site" (z.B. by a university commission), it is a matter of an institution-internal factual investigation. After the investigation is completed, the commission formulates the results of its investigation and, if applicable. A recommendation on how to evaluate the matter. At the management level of the institution must then be decided – after learning of the investigation result – how to proceed in the matter (external decisions are made, such as.B. Sanctions etc.).
If the person affected by the accusation requests access to the files, for example with the help of a lawyer, a distinction must be made between the investigation of the facts by the misconduct commission (internal clarification) and the administrative procedure (from the time when the commission makes its recommendation to the management level and the latter decides on the further course of action). A legally justified demand for file inspection can only apply to the publicly effective procedure (administrative procedure), not to internal clarification. In this respect, a possible inspection of files can also only include all those files which the recommendation of the Misconduct Commission and all subsequent processes (in this context, the Misconduct Commission must weigh up which information is to be included in the report to the management level).