Obtaining, Using, and Disclosing Confidential Information

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 Special DSS Confidentiality Rules

19. 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 DSS Disclosure in Child Welfare

20. 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 Who May Consent?

21. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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