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.<br>
<br>
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 <a href="http://www.nytimes.com/2010/08/11/us/11whistle.html" target="”_blank”">an article
in today's New York <i>Times</i></a>.<br>
<br>
<a href="http://law.onecle.com/texas/penal/39.06.00.html" target="”_blank”">The Texas
confidential information provision</a>, §39.06, reads in relevant
part:<ul>
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...</ul>
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.<br>
<br>
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.<br>
<br>
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 <a href="http://www.cityethics.org/content/divulging-confidential-information-no…; target="”_blank”">an
earlier blog post</a> for the other principal reason it is wrong.<br>
<br>
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.<br>
<br>
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.<br>
<br>
See the <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC39…; target="”_blank”">City
Ethics Model Code confidential information provision</a>, which could
not be used against whistleblowers in this manner.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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