Confidentiality is a legal concept that is often misunderstood and misapplied, especially in the environment of public higher education. There are numerous examples from this institution and others of faculty, staff and students who have relied on a belief that certain communications or materials were confidential and therefore not subject to mandatory disclosure, only to find that their belief was incorrect and that they were compelled to make public disclosure of these communications or materials to avoid facing legal penalties. A basic understanding of the legal principles of confidentiality would have averted most of these unfortunate situations.
For purposes of this essay, we are dealing strictly with the legal definition of confidentiality, that is, those communications that the parties to the communication cannot be compelled by process of law to disclose to any third party. An individual may choose to keep any communication “confidential” in the sense that he/she does not voluntarily disclose it to any other person. However, unless the law has defined a particular category of communications as confidential, the persons privy to that communication can be compelled to disclose it upon penalty of law.
The essential fact is that the only communications that are truly confidential are those that are defined as such by applicable state or federal law. This applies to any communication, regardless of the medium: verbal, print, electronic or other. The concept of confidential communications is contrary to the major goal of the law which is to administer justice based upon a rational review of the pertinent facts. Drawing a curtain around certain facts and excluding them from consideration is at odds with this principle. Consequently, the courts and state legislatures have been very parsimonious in designating any class of communications as confidential. There are, in fact, only a few such categories of confidential communications.
The most commonly encountered categories of confidential communications are physician-patient communications, therapist-patient communications, attorney-client communications, clergy-parishioner communications and spousal communications. In South Carolina, no other types of communication are truly confidential in the legal sense. Personnel records (including letters of reference, “anonymous complaints,” tenure and promotion files, and evaluations), financial records and criminal records are not confidential. These communications are subject to disclosure pursuant to a discovery request, subpoena or court order, and failure to produce the record (or testify) is considered “contempt of court,” an offense punishable by fine or even imprisonment.
It is important that University students, staff and faculty understand these principles and apply them in their official capacities. It would be misleading to assure others, verbally or in a written policy (or other communication), that discussions or materials will be “confidential” unless those communications are specifically protected by law. Not doing so could create legal liability for both Clemson and the individual. To avoid potential problems, we suggest that the following language be used as an alternative: “These communications will be kept confidential to the extent permitted by law.” Hopefully, this language will reinforce the sensitive nature of these communications while not misleading persons into believing that there is absolute legal confidentiality where it does not necessarily exist.
As noted above, South Carolina recognizes that communications between an attorney and a client are confidential and may not be disclosed without the permission of the client. This question often comes up when students, staff, and faculty seek legal advice from the Office of General Counsel. Not all discussions or information disclosed to the OGC will be confidential. It is important to realize that all of the attorneys employed in the OGC represent Clemson University; and, as a matter of law, the University is our client — not any individual employee or student. In the event that the knowledge of a crime, potential crime or similarly critical matter is disclosed to one of the University’s attorneys, he or she has an ethical obligation to disclose that information to the appropriate person. For this reason, persons seeking legal advice from the Office of General Counsel are encouraged to discuss any potential conflicts of interest at the outset.
Freedom of Information Act
Faculty, students and staff at Clemson should also be aware that, as a public institution, we have even less expectation of confidentiality than a private entity. This is because we are subject to the S.C. Freedom of Information Act (FOIA). This act specifically provides that all communications of a public agency or public employee are subject to public disclosure unless specifically exempted by the act.
Family Educational Rights and Privacy Act
The Family Educational Rights and Privacy Act (FERPA), sometimes referred to as the “Buckley Amendment,” is a federal law that is unique to educational institutions. This law makes most education records of students who matriculate at Clemson “confidential” and provides penalties for violating that privacy. Read more about FERPA and its application to Clemson.