1 Who Gets to Know? Child Welfare & Confidentiality John L. Saxon Institute of Government The University of North Carolina at Chapel Hill February, 2004

2 What Is Confidentiality? Some definitions Communication with expectation that it will not be disclosed to others Confidential relationship Personal, private, sensitive info that shouldn’t be disclosed to others Nature of info & consequences

3 What Is Confidentiality? More definitions Violation of individual’s right to informational privacy Determine whether, when, how, to whom personal info disclosed Intuitive Know it when you see it

4 What Is Confidentiality? Legal definition Legal rights, obligations, restrictions, protections, remedies Acquisition, use, or disclosure Specific info by particular persons under specific circumstances Rarely, if ever, absolute Meaningless in the abstract

5 Confidentiality & the Law Constitutional right to privacy U.S. & N.C. Whalen v. Roe; Treants v. Onslow Limit acquisition, use, disclosure Of personal info by govt. agencies Balancing test Govt. need vs. personal privacy

6 Confidentiality & the Law Federal law General laws HIPAA Federal agencies FoIA, Privacy Act, VA Federal funding CAPTA, FERPA

7 Confidentiality & the Law State law General laws Privileged communications Professional licensing State & local govt. agencies Public records & exceptions Nondisclosure of confidential info Disclosure of confidential info

8 Confidentiality & the Law Federal vs. state law Federal law may not apply Federal law may preempt state law Federal law may establish “floor” Federal law may not preempt state law Federal law may defer to state law Federal law may not establish enforceable legal rights

9 Confidentiality & the Law Common law Hall v. Post: No claim for unreasonable public disclosure of private info Woodruff v. Miller: Emotional distress Contract Professional standards NASW Code of Ethics

10 Why Is Info Confidential? Private & public interests Protect personal privacy Protect individuals from harm Physical, emotional, economic harm Discrimination & stigma Encourage & protect relationships Individual, social, professional Facilitate govt. programs

11 Why Are There Exceptions? Public and private interests Public and social necessity Public accountability Facilitate govt. programs Public efficiency Improved service & coordination Protect individuals from harm

12 Analyzing Confidentiality Three situations DSS is seeking confidential info from another agency or person DSS needs to use confidential info Another agency or person is seeking confidential info from DSS Same issue Is use or disclosure of confidential info required, allowed, prohibited?

13 Analyzing Confidentiality What is “default” position? Disclose Unless express prohibition Don’t disclose Unless expressly allowed Unless expressly required

14 Analyzing Confidentiality What rule applies? Scope Object: what info is protected? Subject: who is protected? Respondent: who is subject to rule? Purpose Seldom explicitly stated

15 Analyzing Confidentiality What rule applies? Exceptions Disclosure with consent Disclosure without consent Sanctions & remedies Unlawful disclosure or nondisclosure Legal authority

16 Analyzing Confidentiality Who is seeking info? What info? What format? To whom does info pertain? Identify individual? From whom is info being requested? From whom was info obtained? Why was info obtained? To whom would info be disclosed? For what purpose? Consent? From whom? What form?

17 Child Welfare Nondisclosure of info by DSS Different legal rules Multiple purposes & interests Numerous exceptions Disclosure of info to DSS Specific authority Not total Limits on use & redisclosure

18 Who Gets to Know? Child Welfare & Confidentiality John L. Saxon Institute of Government The University of North Carolina at Chapel Hill February, 2004