It's Important to Make Sure That a Confidential Information Provision Cannot Be Used Against Whistleblowers

Whistleblower provisions are extremely important to government ethics, but poorly worded ethics provisions can undermine even the best whistleblower provisions, especially in unscrupulous hands. One such ethics provision is the confidential information provision.

A nurse at a Winker County, TX hospital was charged with felony misuse of confidential information for reporting improper medical treatment by a doctor, according to an article in today's New York Times.

The Texas confidential information provision, §39.06, reads in relevant part:

A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose...

Any whistleblower discloses confidential information with the intent to harm someone, at least from the someone's point of view. But the primary intent is usually not to harm. In this case, the primary intent was to fulfill a professional duty.

The stickler here is "nongovernmental purpose." Is reporting improper medical treatment at a county hospital a nongovernmental purpose? I wouldn't think so. This should prevent the use of the confidential information provision here, but it did not. Fortunately, the nurse was acquitted, but not before she and a colleague lost their jobs.

Many confidential information provisions are worse than the Texas provision, because they leave out benefit and harm altogether. Any use of confidential information is prohibited, including its use as a whistleblower. This is one reason more why this very typical, and apparently harmless confidential information language is wrong. See an earlier blog post for the other principal reason it is wrong.

Needless to say, there is a conflict at the center of this attempted injustice, which not only cost the nurses their jobs, but also cost the county the nurses' services, the $750,000 it cost to settle a suit brought by the nurses, and a $15,850 fine from the state department of health.

According to the article, the doctor went to his friend and patient, the county sheriff, asking him to find out who had filed the anonymous complaint. The sheriff seized the nurses' computers and found the letter on one of them. The sheriff should have refused to provide his friend and doctor with this preferential treatment, and even moreso since there was no crime involved.

See the City Ethics Model Code confidential information provision, which could not be used against whistleblowers in this manner.

Robert Wechsler
Director of Research-Retired, City Ethics

---