1. Obtaining, Using, and Disclosing Confidential Information Fundamentals of Social Services Law Institute of Government The University of North Carolina at Chapel Hill November, 2004

2. Institute of Government, UNC-Chapel Hill © 20042 What Does Confidentiality Mean? Nature of information Private, personal, sensitive, embarrassing Disclosure might injure subject Nature of relationship Info communicated in confidence Expectation that info won’t be disclosed to others Ownership of information Individual right to privacy and personal autonomy Choose whether, when, & to whom info disclosed

3. Institute of Government, UNC-Chapel Hill © 20043 What Does Confidentiality Mean? Legal rule Legal rights & duties Prohibitions, restrictions, protections, & remedies Acquisition, use, or disclosure Specific type of information Particular persons Specific circumstances Rarely, if ever, absolute Meaningless in abstract

4. Institute of Government, UNC-Chapel Hill © 20044 Legal Analysis of Confidentiality Three contexts Disclosing confidential information Using confidential information Obtaining confidential information Two questions Is the info confidential? Identify & determine scope of legal rule Exception that allows or requires disclosure? Apply legal rule to context

5. Institute of Government, UNC-Chapel Hill © 20045 Legal Analysis of Confidentiality Object What info is confidential? Nature, subject, source Form, format, location Subject To whom does info pertain? Ownership, consent, identification Purpose Why is disclosure restricted? Personal & public interests

6. Institute of Government, UNC-Chapel Hill © 20046 Legal Analysis of Confidentiality Applicability Who is subject to confidentiality restrictions? Legal authority Does it “trump” other rules? Create enforceable rights & duties? Legal sanctions for violation? Exceptions Internal & external Explicit & implicit

7. Institute of Government, UNC-Chapel Hill © 20047 Legal Analysis of Confidentiality Disclosure When may info be disclosed with consent? Who may consent? How is consent given (what form)? When is disclosure required, allowed, prohibited? By whom? To whom? For what purpose? What procedure?

8. Institute of Government, UNC-Chapel Hill © 20048 Some General Rules of Thumb Info is not confidential Unless confidential as per specific legal rule Confidentiality is never absolute Always some exception Confidential in some contexts but not others Confidential info may be used or disclosed With subject’s consent Pursuant to court order To properly administer program If subject not identified

9. Institute of Government, UNC-Chapel Hill © 20049 Some Myths About Confidentiality Confidentiality always “follows” the info Always determine who is subject to rule Sharing or disclosure is OK As long as it is “in house” Internal “disclosure” & restrictions on “use” As long as it is informal or oral, not written copy Usually whether, not how, info disclosed If “the cat is already out of the bag” If subject is dead

10. Institute of Government, UNC-Chapel Hill © 200410 Constitutional Right to Privacy? U.S. & N.C. Constitution Whalen v. Roe (US 1977) Treants v. Onslow County (NC App 1986) ACT-Up v. Comm’n for Health Services (NC 1997) Government agencies Acquisition, use, disclosure Personal information regarding individuals Balance government need vs. personal interest

11. Institute of Government, UNC-Chapel Hill © 200411 Common Law Right to Privacy? Tortious invasion of personal privacy No claim for public disclosure of private info Possible claim for emotional distress Hall v. Post (NC 1989) Woodruff v. Miller (NC App 1983)

12. Institute of Government, UNC-Chapel Hill © 200412 Federal Confidentiality Rules Federal government info & records Federal Freedom of Information & Privacy Acts Do not apply to state & local government Federal laws of general application May preempt or “trump” state law (42 CFR 2) May establish “floor” or defer to state law (HIPAA) Federal funding conditions May or may not create enforceable individual rights FERPA, CAPTA, etc.

13. Institute of Government, UNC-Chapel Hill © 200413 Public Records Law (GS 132-1) Public record Recorded info (regardless of format) Document, computer, digital, audio, photo, email Made or received in connection with public business State & local government agencies & officials Private contractors & agents Any person Inspect & copy for any purpose Reasonable procedures & fees

14. Institute of Government, UNC-Chapel Hill © 200414 Public Records Law (GS 132-1) Exceptions Public Records Law (express) Other statutes (express or implied) Confidential = not a public record Not a public record ≠ confidential Procedures Redacting info from public records Retention & destruction of public records

15. Institute of Government, UNC-Chapel Hill © 200415 Privileged Communications Communication By individual to doctor, attorney, clergy, spouse, etc. Within scope of confidential relationship Inadmissible in legal proceeding Unless waived, exception, or court order Disclosure in other contexts May or may not be OK Technically, privileged ≠ confidential Exceptions allowing or requiring disclosure

16. Institute of Government, UNC-Chapel Hill © 200416 Social Services Records GS 108A-80 & 10A NCAC 69 Unlawful for any person to Obtain, use, or disclose Purpose not directly related to social services Any info Obtained by DSS while performing official duties Directly or indirectly derived from DSS records, etc. About DSS client Person who applies for or receives social services

17. Institute of Government, UNC-Chapel Hill © 200417 Social Services Records With client’s consent Written, signed, informed, voluntary Without client’s consent (notice) Required by court order Required by federal or state law Research (if info de-identified) Federal & state programs Unless prohibited by source or legal rule

18. Institute of Government, UNC-Chapel Hill © 200418 Special DSS Confidentiality Rules Adoption APS CPS Identity of reporter DSS investigation CAPTA Central registry Child support (IV-D) Child welfare services Child protection Foster children Criminal history checks DSS employees Food stamps Medicaid TANF

19. Institute of Government, UNC-Chapel Hill © 200419 DSS Disclosure in Child Welfare NC law DA & law enforcement Crime (not parent, etc.) Fatality (central registry) DHHS & SBI Child day care Sexual abuse in day care Person who reports abuse Child protection team Public disclosure (request) Fatality or near fatality Other agencies Protective services Serve juvenile Juvenile cases GAL, child, child’s attorney Discovery Court order CAPTA Individual subject CPS report Court or grand jury Others for legitimate purpose

20. Institute of Government, UNC-Chapel Hill © 200420 Who May Consent? General rule Person who is subject of info Client, patient, employee, informant Incapacity to consent Incompetent Mentally impaired Minor child Mature minor Deceased Consent obo client GS 108A-80 Guardian of incompetent DSS director (foster child) Other responsible person Child’s parent (???) HIPAA Personal representative GS 122C Legally responsible person FERPA Parent, guardian, ILP

21. Institute of Government, UNC-Chapel Hill © 200421 Responding to Subpoenas NC Civil Procedure Rule 45 Civil & criminal proceedings Issued by judge, clerk, attorney NC court (or federal court) Subpoena to appear & testify Court (in NC) or deposition (in county) Served on agency or individual witness Subpoena to produce documents (inspect & copy) Court, deposition, attorney’s office Served on custodian of records

22. Institute of Government, UNC-Chapel Hill © 200422 Responding to Subpoenas Appear, testify & produce Disclosure required or allowed (consent, order, etc.) Motion to quash (or written objection) Within 10 days & before compliance required Confidential or privileged info (state nature & basis) Insufficient time, undue burden, defective, etc. Order to override or compel compliance Costs & attorneys fees Failure to respond Contempt

23. Institute of Government, UNC-Chapel Hill © 200423 Disclosure in Child Custody Cases Subpoena Insufficient for disclosure Without consent or court order Motion to quash or written objection Ritter v. Kimball (NC App 1984) Ask judge to review in camera Balance public & private interests Redact info (e.g. informant’s identity) Protective order prohibiting redisclosure

24. Institute of Government, UNC-Chapel Hill © 200424 Disclosure in Criminal Cases Criminal investigation Special proceeding in superior court In re Albemarle Mental Health Center (NC App 1979) In re Brooks (NC App 2001) Petition by district attorney Served on agency Opportunity for objection & hearing In camera inspection by judge Proper administration of justice

25. Institute of Government, UNC-Chapel Hill © 200425 Disclosure in Criminal Cases Exculpatory evidence Pennsylvania v. Ritchie (US 1987) NC v. Phillips (2001), Johnson (2001), Johnson (2004) Subpoena or court order Defense counsel Notice & opportunity for hearing Plausible showing regarding exculpability In camera review by superior court judge Favorable to defendant & material to issue of guilt Credibility of witness

26. Institute of Government, UNC-Chapel Hill © 200426 Disclosure to DSS in Child Welfare Reporting suspected abuse & neglect GS 7B-310 Overrides (almost all) state law privileges Doesn’t “trump” federal law CPS investigation & services GS 7B-302(e) Overrides privilege (except attorney-client) Does not “trump” federal law Criminal investigation withheld with court order

27. Institute of Government, UNC-Chapel Hill © 200427 Disclosure to DSS in Child Welfare Information sharing GS 7B-3100 & 28 NCAC 01A.0301 &.0302 Human services, school, law enforcement Other agencies designated in administrative order Relevant to pending juvenile proceeding Protect juvenile or others Improve juvenile’s educational opportunities

28. Institute of Government, UNC-Chapel Hill © 200428 Alcohol & Substance Abuse 42 CFR 2 Alcohol or drug treatment program Any info that identifies person as patient Exceptions Mandatory report of child abuse & neglect Patient consent Court order

29. Institute of Government, UNC-Chapel Hill © 200429 FERPA 34 CFR 99 Federally-funded educational institutions Student info in “educational record” Not info based on personal knowledge Exceptions Consent Subpoena Court order

30. Institute of Government, UNC-Chapel Hill © 200430 HIPAA 45 CFR 164 Health care providers & health plans Physical or mental condition, treatment, payment Exceptions Report child abuse & neglect Required by state law Consent Subpoena Court order

31. Obtaining, Using, and Disclosing Confidential Information Fundamentals of Social Services Law Institute of Government The University of North Carolina at Chapel Hill November, 2004