When is a Confidentiality Breach Justified for Private Investigators?

• October 28, 2019
• by PInow Staff
• Articles

Why is Confidentiality Important?

Confidentiality is central to the preservation of trust between an investigator and their client. As a private investigator, clients will inevitably come to you with delicate cases that sometimes require them to reveal sensitive information about their personal lives. Often, in order for you to do your job effectively, they must be open and vulnerable with you, telling you things they may not even disclose to their closest relatives. In order to get this information, you must promise confidentiality and remain resolute to that promise. Whether this is in writing or simply by your word, respecting your client’s right to privacy is essential to maintaining your reputation and building a successful business. It is only in the direst of circumstances that this confidentiality should be compromised.

Is Breaching Confidentiality ever Justified?

While maintaining trust is of utmost importance in any investigation, situations do arise that call for breaking confidentiality. Here are some instances that justify a breach of confidentiality:

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.

Example: A client permits you to use their story to encourage others with similar stories to come forward.

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.

Example: A police officer comes to you with a court order to surrender information regarding a certain case.

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.

Example: While interviewing a suspect, they threaten a specific person related to the case with bodily harm.

Unintentional breaches

While it is important to know when to break confidentiality, it is also essential to be aware of potential unintentional breaches of information. This can sometimes be as simple as having case files or other relevant information open on a desk where a partner, child, or visiting friend can see them. It can also be hackers or scammers obtaining your information via unencrypted emails or unprotected online file storage. Sharing information online has enabled faster and more efficient communication, but it also comes with an increased risk for information theft. Do not store information you do not need especially if it is sensitive to the client and, if you must, store it on an encrypted personal computer. Destroy physical files as soon as you are done with them.

Revealing Information to a Team

For private investigators that work with a team, check with the client before revealing any information to your team members. Be clear that it will make the job easier, more effective, and that your team is trustworthy. Sometimes, nondisclosures are a disservice to the case because other perspectives could be vital to its success. But even disclosures to relevant team members should be limited to the appropriate information they need to do the job and no more. An important part of this is hiring team members you trust that are vetted and bound by contract.

Ask for Help

Since private investigators work so closely to the law, having an attorney to turn to for legal advice is useful and sometimes necessary. In the case of confidentiality breaches, clearly document your reasoning and seek advice from a trusted attorney before taking any action.