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It's Important to Make Sure That a Confidential Information Provision Cannot Be Used Against Whistleblowers
Wednesday, August 11th, 2010
Robert Wechsler
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:
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
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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...
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
---
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