Importance of Confidentiality
Confidentiality builds trust between the investigator and client. Many of our clients cases are sensitive and delicate, requiring them to share information about their personal lives. The transmission of this information is crucial, as them sharing sensitive material assists the investigator.
Maintaining confidentiality is a private investigators first order of business.
As attorneys have attorney-client privilege, doctors with patients, and so on; the purpose is the ability to exclude the information from a formal evidence setting. From case inception (being the consultation), all information discussed and exchanged isn’t to be shared with anyone outside the agency. For example,
Arizona Revised Statutes Title 32 Professions and Occupations 32-3283:
A. The confidential relationship between a client and a licensee, including a temporary licensee, is the same as between an attorney and a client. Unless a client waives this privilege in writing or in court testimony, a licensee shall not voluntarily or involuntarily divulge information that is received by reason of the confidential nature of the behavioral health professional-client relationship.
If a case does by chance enter the court room, a private investigator may only be required to give the clients name (reference Flynn v Superior Court (1997, Cal App 4th Dist) 57 Cal App 4th 992-996 ).
When Can Confidentiality Be Breached?
Disclosure with Consent
The most common justification for disclosing private information is when you obtain written or verbal consent from the client themselves. It is best to heavily document this consent in case of a dispute later, especially if it ends up in court. In order for their consent to be valid, the client must be in a sound state of mind and not coerced in any way.
Disclosure Required by Law
Sometimes the law requires you to reveal confidential information. However, police and attorneys do not have the right to demand disclosure without a court order. While you do not have to reveal details without a court order, you still cannot provide misleading information and you must inform law enforcement when the case involves terrorism. If the information could prevent an attack or violence, it is your responsibility to surrender it to the authorities.
Disclosure in the Public Interest
Unlike the first two justifications, this kind of disclosure is more subjective and it may come down to the court to decide if it is valid. Often, it is your duty to disclose information when an identifiable victim is threatened and a warning might prevent harm. There is usually a low risk of harm unless a specific individual is threatened, but professional judgment must be used in making these disclosure decisions. Remember that there is a significant difference between public interest and what the public is interested in.
Unintentional Breach of Confidentiality
Although careful in handling case files, there may be a time where an unintentional breach occurs. When handling physical case files or notes, be sure to properly stow them away when finished. Leaving them out for visitors or children to read or handle can lead to a breach. Information passed via email should be encrypted and information stored online should also have safety features protecting client data. It is good practice to destroy physical files when completed with them. Bear in mind that some states require some physical information on file for clients and cases.
“Need to Know”
Involving teams in case matters is common practice for larger private investigative firms. Sharing information with a group of people should always be done in caution, and if they are included on a case, inform them that the information is confidential and not to be shared.
“Who We Talk To”
Private Investigators should be careful when discussing cases. There are some instances where private investigators use a case to describe how they got from point A to point B. Vaguely describing the case is fine, but intricate details, such as the location and additional subject information should not be divulged.