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Can You Keep a Secret? Protecting Customer Confidentiality
by Jeff Mollet

Recently, an Illinois court ruled that a rural hospital was liable for the disclosure of confidential medical information. Not earth shattering on its face, but the underlying facts show the disclosure was likely accidental and made by a hospital employee to a relative while at a bar after hours. How, might you ask, can the hospital, or any business that has confidential information (you all do – think about it) keep such things from happening?

The truth is that you probably can’t stop the disclosure of confidential information, and certainly can’t where it is intentional. But you can take some action to make it less likely to occur, or as we business-type lawyers like to see, take steps showing your company has at least made some attempt to inform your employees on what is and is not allowed, and perhaps established workplace limitations that will control the availability of such information. By doing so, in the event an unauthorized disclosure of confidential information is made, the company can at least present evidence that it tried to establish the necessary policies and procedures to prevent the disclosure.

Education is a key in this process. We all have some form of confidential information, and information that seems open to the public may still be confidential under the right circumstances. Telephone numbers (work, home, cell), addresses, credit information, full names, social security numbers and employment information are but a few of the parcels of data that we all have in our client or customer files that seem fairly mundane. Still, an inadvertent disclosure, such as the fact that a particular client or customer is past due, will hit the coffee shop gossip pages faster than [insert your own pun here].

So what can your business do to minimize the risk of inadvertent or even intentional disclosure? As usual, there are no fool proof measures, but consider the following options:

• Adopt a formal confidentiality policy and keep it “out there.” Most medium and large businesses have such a policy in place to address the potential problem. It may be part of an employee handbook or a separate policy that is distributed to the masses. However, it is then left to gather dust while business moves on. Keep it “out there” by making reference to it in newsletters, discussions or meetings. It doesn’t have to be a one hour presentation every time, but reference or summarize the policy and its necessity.

• Make the confidentiality policy known from top to bottom. I have recently adopted such policies for boards of directors to make sure that they, who may have much in the way of confidential information, are aware of the risks associated with improper disclosure.

• Add discussion of the confidentiality policy to your employee education. Whether you have formal meetings, quick talks, newsletters or notes in your paychecks, you have contact with your employees. Take one of those opportunities every so often to preach the company line on confidentiality.

• Inspect and review your business procedures. A review of the day to day operations may reveal that you have a few places where you could tighten things up a bit and keep the confidential information from becoming available to more employees. The use of folders, password protected computer files and streamlined data flows are a few things that can help. The fewer eyes that see, the fewer mouths that can talk.

• Take action if breaches of confidentiality occur. If you have an employee who even inadvertently makes an improper disclosure, immediate action is needed. Think through what you would do in such a situation now so you don’t have to shoot from the hip on short notice. If possible, establish an action plan and policy governing which action would be taken under what circumstances--reprimand, letter in the file, censure or termination. Know your options and be forceful in dealing with the situation.

It’s no secret that you have a lot to lose if confidentiality is broken. Act to protect yourself and your business today.

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