Notes on Limits for Data Sharing

This overlaps with my post showing low-coverage sequencing data was identifiable information (with my own data).  However, I though having separate post to keep track of details still had some value.

• Institutional Certification is required for patient data.  While some data collected before January 25th, 2015 can be deposited under controlled access without "explicit consent", this is not true for more recently collected samples.
• For this reason, I would recommend not approving genomics studies with samples collected after this point, if such consent was not obtained (either in the original protocol, or in an amended protocol).
• This also makes it important to get amendments to your IRB protocols, when you make changes.
• The website can change over time.  In the event that the current website does not make clear that this applies to cell lines, you can see more explicit mention of cell lines here.
• I believe the earlier website used the same language as the subheader on this form, saying "data generated from cell lines created or clinical specimens collected".
• This means that you should not be able to create cell lines using samples collected more recently without "explicit consent" for either public or controlled access data deposit, since it will be extremely hard to enforce the appropriate use of the data after you share the cell lines with other labs.
• I think that is consent with what is described in this article, which says "[consent] should be requested prior to generation" for cell lines.
• The NIH GDS Overview says "For studies using cell lines or clinical specimens created or collected after [January 25th, 2015]...Informed consent for future research use and broad data sharing should have been obtained, even if samples are de-identified".
• The NIH GDS FAQ also says "NIH strongly encourages investigators to transition to the use of specimens that have been consented for future research uses and broad sharing."
• Additionally, the GEO human subject guidelines say "[it] is your responsibility to ensure that the submitted information does not compromise participant privacy[,] and is in accord with the original consent[,] in addition to all applicable laws, regulations, and institutional policies" (with or without NIH finding).
• Plus, the NIH GDS FAQ says "investigators who download unrestricted-access data from NIH-designated repositories should not attempt to identify individual human research participants from whom the data were obtained".
• HeLa cell lines were not obtained with the appropriate consent.  I believe that is why there is a collection of HeLa dbGaP datasets, since they are supposed to be deposited through a controlled access mechanism.  This is not always mentioned on the vendor website, and this is not always immediately enforced.  However, post-publication review applies to datasets and produces (as well as papers, which can be corrected or retracted).
• In terms of HeLa cells, the genomic data is strictly expected to be deposited as controlled access, as explained in this policy.
• If there is a way to check consent for cell lines, then I would appreciate learning about that.
• As far as I know, the only cell lines that are confirmed to have consent to generate genetically identifying data to release publicly are those from the Personal Genome Project participants.  However, again, I would be happy to hear from others.
• The ATCC website says "Genetic material deposited with ATCC after 12 October 2014 falls under the Convention on Biological Diversity and its Nagoya Protocol...It is the responsibility of end users that these undertakings are complied with and we strongly recommend that customers refer to this prior to purchase."
• My understanding is that the United States has not joined this agreement.  However, I hope that this matches the sprit of other rules or guidelines from the NIH and HHS.  If I understand everything, I also hope the US joins at a later point in time.
• In general, I think work done with low-coverage sequencing data can show that a lot of genomic data can be identifiable (which I think matches the need for controlled access and justification for not being allowed to create a cell line without the appropriate consent).
• There is also this Blay et al. 2019 article describing kinship calculations with RNA-Seq data, also confirming the expectation that the raw FASTQ files contain identifiable information for most common RNA-Seq libraries.
  
• The NIH GDS FAQ also includes "transcriptomic" and "gene expression" data as covered under GDS policies
• I believe the above points may relate to the 2013 Omnibus rule, connecting the GINA and HIPAA laws.  As I understand it, I think you can find an unofficial summary here.
• I believe that also matches what is described this link from the Health and Human Services (HHS) website (if it related to a health care provider).
• There are general HIPAA FAQ for Individuals here, including a description of the HIPAA privacy rule here that explains HIPAA is intended to "[set] boundaries on the use and release of health records".
• The links most directly above are from Health and Human Services (HHS).  However, in the research context, this article mentions the importance of taking genetic information into consideration with HIPAA/PHI/de-identification (which recommends controlled access if there is not appropriate consent for public deposit, since some raw genomic data may not be able to be truly de-identified).
• At least for someone without a legal background like myself, I think "Under GINA, genetic information is deemed to be ‘health information’ that is protected by the Privacy Rule [citation removed] even if the genetic information is not clinically significant and would not be viewed as health information for other legal purposes." from Clayton et al. 2019 might be worth considering.
• In other words, I believe that there are both NIH and HHS rules/guidelines that require or recommend care needs to be taken for patient genomic data.
• I think some of the information from the Design and Interpretation of Clinical Trials Course course from Johns Hopkins University is useful.
• Even in the research setting, the document from that course for the "Common Rule" includes "Identifiable private information" in the definition of "Human Subject" Research.
• In the HIPAA privacy rule booklet for that course, it also says "For purposes of the Privacy Rule, genetic information is considered to be health information."  You can also see that posted here.

There are certainly many individuals (at work, as well as at the NIH, NCI, etc.) that have been helping me understand all of this.  So, thank you all very much!

Change Log:

4/30/2020 - public post

7/30/2020 - updates

8/5/2020 - updates

7/9/2021 - add information about RNA-Seq kinship

8/12/2021 - add information about Personal Genome Project cell lines and ATCC / Nagoya Protocol; formatting changes in main text and change log

8/17/2021 - add GDS FAQ and NIH HeLa notes

8/19/2021 - add GEO note

8/27/2021 - add HIPAA notes

11/23/2021 - add HIPAA notes

5/27/2022 - add cell line institutional certification notes

1/15/2023 - add PLOS Computational Biology reference link related to HIPAA/PHI

1/16/2023 - add Common Rule reference from JHU Coursera course + Clayton et al. 2019 reference

1/28/2023 - add note to make link from HHS page more clear + minor formatting changes