Privacy Rights Clearinghouse
By Barry D. Fraser
The privacy protections operating in the United States today often require consumers to take specific actions to guard their personal information from disclosure. However, the time, effort and expense that this proactive process exerts upon individuals can be prohibitive.
For example, consumers may protect their Social Security Number from disclosure in commercial transactions, but usually at the cost of time-consuming negotiation with merchants, or by taking their business elsewhere. To ensure medical record privacy, patients often must pay cash for insured medical services, because the insurer might otherwise demand access to the records. Keeping an unlisted phone number subjects the consumer to higher costs for telephone service. Even the act of "opting out," or requesting that one's name, address or phone number be removed from marketing mailing lists requires an expenditure of time and effort, not to mention the cost of postage.
This cost-based approach to privacy is inherently flawed, because it effectively puts this fundamental right beyond the reach of most low-income or homeless persons. A large segment of the population simply cannot afford to negotiate their privacy rights, or pay additional costs to safeguard their personal information. Unfortunately, these individuals often put themselves at a disadvantage by giving up this right.
In Canada, the importance of privacy rights to low income groups is acknowledged. In that country, the right to privacy "belongs to every citizen, but it is all the more important that it be protected when a person, in a situation of dependency, must provide personal information." (_Minimum Requirements for the Security of Computerized Records of Health and Social Services Clients_ at 6, Commission D'access a l'Information du Quebec (1992)). Canadian law provides that all health and social services information be kept strictly confidential, to be disclosed only with the consent of the individual. Furthermore, all clients are entitled to inspect and obtain a copy of any social services record.
In the United States, however, the importance of protecting an individual's social services records has not been recognized. Even where laws exist to protect such information, they are often ill-applied or unenforced. Compounding this problem is a substantial lack of awareness among both social services clients and program administrators concerning what types of information may or may not be protected.
For instance, does the right to privacy allow a homeless person to hide the fact that she is homeless from potential landlords or employers? Do low-income social services recipients have the right to inspect the agency's records concerning them and to have errors corrected? What restrictions are placed on the disclosure of public and private social services records?
Unfortunately, these questions cannot be easily answered. This paper will attempt to shed some light on these issues, but in many cases there simply are no clearly delineated policies for the handling of personal information of low income and homeless individuals. Also, note that the following is not intended to be legal advise, or even an accurate account of the state of the law regarding social services information. Those who desire legal advise should consult an attorney.
I. Does the Right to Privacy Allow a Homeless Person to Hide the Fact that She is Homeless from Potential Landlords or Employers?
The short answer here is "probably not." There are no laws that directly compel a homeless person to disclose the fact that she is homeless. On the other hand, there is nothing that prohibits a landlord or employer from requiring a previous residence address or employment history of a potential tenant or employee. An applicant will probably be denied housing or employment if she refuses to provide residence or employment history. If false information is provided, the applicant runs the risk that reference checks or background checks will reveal the misrepresentation, again leading to denial. This forces the applicant who wishes to protect the fact that she was homeless to "shop around" for housing or employment which does not require background checks.
This problem is compounded by the fact that once such information is disclosed, there is no guarantee that it will not be distributed to third parties. For example, suppose an individual discloses to a landlord that his former residence was a public homeless shelter. The landlord rents to the individual for a time, and then the individual applies for housing with another landlord, listing the first landlord as a reference. There is nothing to prevent the first landlord from disclosing to the second that the tenant previously lived in a homeless shelter. Furthermore, there is nothing preventing the first landlord from disclosing this information to potential employers, creditors and others.
Unfortunately, homeless and low income individuals often feel forced to reveal information about their circumstances that they do not wish to disclose, simply because they do not have the time or resources to negotiate or shop around for housing or employment. Additionally, many of these individuals are not aware that information they disclose may subsequently be revealed to third parties.
II. Does a Homeless Persons Have the Right to Inspect and Correct Their Records Compiled by Homeless Shelters, Free Clinics, and other Social Services Organizations?
The Privacy Act of 1974 (5 USC 552a(d)) provides that each agency that maintains a system of records containing information pertaining to an individual shall, upon the request of the individual, permit him to review the record and to have a copy made of it. Additionally, the individual may request that information he believes to be erroneous be corrected, and the agency must either make the correction or inform the individual of the reason for refusing to correct. The individual may then have this decision reviewed within 30 days.
Additionally, in California, each state agency must permit an individual upon request to inspect any record containing personal information concerning the individual (Information Practices Act of 1977, Cal. Civil Code s. 1798.34). Also California law provides that all patients, with specified exceptions, may gain access to their medical records, whether or not provided by social services (Cal Health and Safety Code s. 1795.12).
Because these laws have generally been extended to any entity that receives federal or state funds, it would seem that social service providers receiving government funding must allow clients to inspect their files. However, this does not always occur in practice. For instance, in March of 1993, several residents of Contra Costa County homeless shelters were denied access to personal information contained in shelter records ("Shelter Residents Mount Fight to See their Own Case Files," _Walnut Creek Times_ (3 March 1993)). Shelter administrators claimed that state law prohibits them from releasing case files, because the individual's file may also contain information that pertains to other clients, and disclosure would infringe upon the privacy rights of those other individuals.
Administrators argued that since only information "directly connected" with the shelter services may legally be contained in the case files, and the files are entirely "confidential," shelter residents should not be concerned with the contents of their files. However, one shelter resident inadvertently got a glimpse of his file, which he says contained erroneous information and confidential notes from sessions with a volunteer therapist. Shelter residents also complain that they cannot be sure that only information "directly connected" with shelter services is included in their records unless they are allowed to inspect them themselves. The residents have attempted to obtain legal aid to pursue their claims, but to date the issue is still unresolved.
This appears to be an isolated case. However, while many shelters will grant individuals access to their files (e.g. interviews with the Los Angeles Free Clinic and the St. Vincent DePaul Shelter in San Diego revealed that both organizations allow clients to see their files upon request), the fact remains that refusals sometimes do occur. When a homeless person is denied her rights to inspect her records, she may not have the time, resources and access to the legal system necessary to enforce her rights. In many cases, homeless persons in the above situation will forego their right to inspect because they are not in a position to fight the adverse decision.
III. What Limits are Placed on the Disclosure of Personal Records Compiled by Homeless Shelters or Other Social Services Organizations?
In California, government funded social services records are generally public records and must be released, unless the records fall under an exception to the Public Records Act or are protected by specific statute (California Government Code s. 6250 et seq.). One such exclusion protects "personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." (Cal. Government Code s. 6254(c)).
Most medical records are also protected under California Civil Code s. 56.10(a), which states that no provider of health care shall disclose medical information regarding a patient without first obtaining the patient's authorization. However, section 56.10 (b) and (c) list numerous exceptions to this rule. Additionally, Cal. Civil Code s. 56.30(b) appears to exclude all social services medical records from this provision.
California Welfare and Institutions Code Section 10850 provides that all applications and records concerning any individual made or kept in connection with the administration of public social services for which grants-in-aid are received by this state from the United States government shall be confidential. There are, however, several exceptions to this provision, including the release of records to other county welfare departments, release to any governmental entity which is authorized by law to conduct an audit or similar activity, and release to state or local law enforcement authorities pursuant to a warrant or in the course of investigating a criminal act committed in a welfare office or against a welfare worker.
Another exception requires the state Department of Social Services to inform the Department of Motor Vehicles (DMV) of the names, birth dates and addresses of all applicants or recipients of aid to the blind. The DMV on receipt of such information shall inform the Department of Social Services of any such applicant or recipient who holds a valid California drivers license. Finally, social services records may be disclosed to publicly funded housing authorities, "without the need to provide written documentation that consent has been obtained from a client" (Cal. Welfare and Institutions Code s. 10850.5).
Records pertaining to Medi-Cal services are governed by Welfare and Institutions Code section 14100.2. Such records shall not be open to examination other than for purposes "directly connected with the administration of the Medi-Cal program." In _Department of Health Services v. Superior Court_, 232 Cal. App. 3d 776 (1991), a hospital that had provided health services to an unsuccessful applicant for Medi-Cal benefits sought a discovery order requiring disclosure of the applicant's Social Services records. The court denied the discovery request, holding that because the hospital was neither the recipient nor the authorized representative of the recipient, and the discovery was not directly connected with the administration of Medi-Cal, the hospital was not entitled to inspect the records relating to the patient's eligibility.
However, the court went on to explain that "administration" does include: establishing eligibility and methods of reimbursement; determining the amount of medical assistance; providing services for recipients; conducting or assisting an investigation, prosecution, or civil or criminal proceeding related to the administration of the Medi-Cal Program; and conducting or assisting a legislative investigation or audit related to the administration of the Medi-Cal Program. The broad interpretation of this exception could conceivably allow disclosure to any number of parties.
The above rules do not pertain to privately funded social services providers, which are bound by very few laws regarding disclosure. Often these entities will have established confidentiality policies which may be more protective of client's information than public services.
For example the Los Angeles Free Clinic, the oldest free health care clinic in the nation, does not accept Medi-Cal funds, for the simple reason that the organization does not wish to subject personal records to the broad "administration" provisions outlined above. The Free Clinic promises that no personal records will be disclosed without consent of the client or a court order.
However, other private social services providers may have more lax disclosure standards. It is the client's responsibility to seek out the provider with the most protective standards, if that client wishes to keep information private. But how many indigent individuals in dire need of health care or shelter can afford to take the time to shop for the best privacy protections? Once again, the costs of privacy protections for these individuals will usually exceed any perceived benefits in privacy protection.
Unfortunately, this paper raises many more problems than solutions. However, there are two areas in which action could be taken to assist homeless and low income individuals to protect their privacy rights. First, it is essential that low-income groups be educated about the importance of protecting personal information from disclosure. Second, requiring both public and private social services organizations to provide clear notice of privacy policies to clients, prior to rendering services, would also be helpful. However, neither suggestion addresses the fundamental problem for these groups, which is the inability to afford the cost of privacy protection.
The advent of the information superhighway has been touted as an almost magical solution to many of the country's social problems. But as information becomes easier to gather and manipulate, homeless issues will only become more pressing. How will the homeless benefit from these new innovations? Will the gap between information-rich and information-poor simply make certain technologies unavailable to these individuals? What privacy options will be available to low-income individuals who cannot bear the additional costs associated with saying "no" to demands that they disclose certain information?
Unless these questions are addressed, a "two-tiered" society seems inevitable, in which the "rich" can afford to both protect their own privacy and pay the costs associated with obtaining information, while the "poor" can afford neither privacy protection, nor access to information. The new information society deserves better than this.
Barry Fraser, Esq, is a former advocate for the Utility Consumers' Action Network (UCAN). He developed the CyberCop Complaint Center (http://www.ucan.org) , a site for consumers to lodge complaints and find more information about consumer rights on the Internet.