Confidentiality and Privacy:
Releases and Waivers At-A-Glance
- A survivor should be notified of what is happening with their information, and who has access to it. This includes any legal duty to share information or any other limits on confidentiality.
- It is her/his information – it is her/his choice. It is her/his choice of what information is shared and with whom the information is shared.
- This includes what information may be included about the survivor in a database.
- A survivor can instruct a provider to share personal information outside of the confidential relationship by completing a written release.
- Before assuming a release is necessary, determine whether there is another way to meet the survivor’s needs without revealing their confidential information.
- The fact that you have created a partnership does not eliminate or lessen the confidentiality or privilege obligations of each partner agency.
- Protect the confidentiality of victim information.
- Recognize that even innocuous information can be very identifying.
- Remember that survivors get to decide which information can be safely shared.
- The most protective standard should be the guide.
- Although these guidelines for confidentiality releases are primarily for nonprofit advocates and confidential professionals, all partners in a collaboration should attend to whether information is shared properly.
Federal & State laws
- VAWA 2013 § 3 & FVPSA: Grantees and subgrantees cannot disclose personally identifying information about survivors served without the informed, written, reasonably time-limited consent of the person.
*VAWA also protects individual information that could serve to identify a person.
- State: Most states have victim/advocate confidentiality for sexual assault and domestic violence survivors and advocates. Check with an attorney in your jurisdiction to see what confidentiality laws apply and see NNEDV’s Summary of State Confidentiality Laws.
- Reminders: If statute or court mandate requires a disclosure of information, the person releasing the information must notify the victim of the disclosure and take steps to continue to protect the privacy and safety of the victim. For reporting, evaluation, or data collection requirements purposes, only nonpersonally identifying aggregate data (e.g., 5 women, 1 man, 10 children) may be released.
Consent must be informed, written, and reasonably time-limited
- Informed: Survivors must know (1) what they are agreeing to when signing a release and (2) what are the risks and benefits of signing the release. They should be aware of how their information will be used and how and when it will be shared. Consider language and other communication barriers.
- Written: Releases must be written. If a release is given orally in the very rare emergency situation, the survivor’s identity must be verified and she must sign the written release as soon as possible.
- Reasonably time-limited: “Reasonably time-limited” is determined by the circumstances, based on the survivor’s needs. The shorter the better. Releases can always be signed later for additional time or other purposes. Weigh the importance between minor inconvenience (an advocate having to ask the survivor to sign releases more than once) and the survivor’s right to her or his information, confidentiality, and privacy.
- Reminder: A waiver or release cannot be a condition of service. Nor can consent be presumed because the survivor chooses to use your services.
Who can authorize a release?
- An adult survivor who wants to release information
- An emancipated minor
- A teen who can receive your services under state law without the need of parental or guardian permission
- The non-abusive parent/guardian of an unemancipated minor and the unemancipated minor
- The non-abusive, court-appointed guardian of a person who has been adjudicated to have a cognitive disability
- Use a uniform release template that can be tailored to meet each survivor’s situation, wishes, and needs.
- Train your team members on how to discuss options around information sharing with survivors.
- Encourage your partners to use similar templates.
- Use written releases even if you have an MOU or confidentiality agreement with a partner agency.
- Avoid releases that list multiple agencies. A release that checks off a list of community partners and is not specific about the information sharing is not helpful in ensuring actual informed consent.
- Keep in mind that disparate information, when taken together, can be identifying.
- Don’t rely on releases provided by another agency.
- Nonpersonally identifying aggregate data should be sufficient for data reporting purposes.
© 2016 NNEDV Safety Net Project and Confidentiality Institute.
Adapted from materials by Julie Field, Esq.
This project was supported by Grant No. 2013-TA-AX-K006 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.