Legal-Ease: Is this confidential?


LEGAL-EASE

By Lee R. Schroeder - Guest Columnist



People often want to keep confidential various kinds of business and personal information. The value of confidentiality was traditionally embodied in avoiding embarrassment (often medical issues) or to protect proprietary information (such as trade secrets in a business). However, in today’s world, almost any information about a person can be damaging in the hands of fraudsters and scam artists who can impersonate other people by misusing many of today’s technological conveniences.

These are some common questions and answers on what is and what is not confidential.

Unless the subject is a matter of national security, anyone who sues someone else or gets sued will not be able to keep information of their involvement confidential. Every action (filings, hearings, trials) in a lawsuit is generally public information.

However, if a lawsuit involves minor children (i.e. child custody or child support), specific information regarding the minor children is typically sealed and kept confidential. And, other sensitive information (like business plans) that are a part of lawsuits can be kept confidential if either the parties to the lawsuit or the judge agree to keep that information confidential.

In fact, almost all documents filed with local government officials are “public records” and can be accessed by the general public.

In buying or selling real estate, people often want the purchase price kept confidential. In Ohio, such information is publicly available if someone tries to find it.

However, if the information in a publicly filed document includes more sensitive information (such as Social Security numbers), local governments will often “black out” (technically called “redacting”) that sensitive information. If the process of redacting information is too cumbersome (due to a local government not having the human or technological resources to facilitate redaction), local government offices may use a registration system to monitor who sees what documents that include confidential information and to screen those people to ensure that their reasons for accessing that sensitive information are legitimate.

Income tax returns are generally confidential, but when the information contained in those tax returns is relevant to eligibility for various government programs (such as Medicaid or USDA Farm Service Agency ARC/PLC programs), tax return information can be forced to be shared with program administrators as a condition of becoming eligible for that government program.

Most information or documents that are legally confidential can be accessed by government prosecutors in most circumstances, which reflects a public policy of ensuring that confidentiality is not used to cloak illegal activities.

Of course, most medical information is confidential, and the common name for the federal law regarding that medical confidentiality is HIPAA. Healthcare providers are very good about enforcing this law because of the serious ramifications for unauthorized release of information. Thus, there is never a presumption that anyone, even a healthcare agent (under a healthcare power of attorney) can see another person’s historical, healthcare information. For this reason, in particular, powers of attorney for healthcare need to include specific language that releases the healthcare providers from the HIPAA requirements for agents acting under healthcare powers of attorney.

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LEGAL-EASE

By Lee R. Schroeder

Guest Columnist

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

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