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Privileged Information: Confidentiality and Disclosure

Privileged Information: Confidentiality and Disclosure. Obligation to keep certain information confidential. Well established principle in law and medicine. Why? Competitive advantage (of how to engineer). What? Test results, designs, formulas, etc.

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Privileged Information: Confidentiality and Disclosure

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  1. Privileged Information:Confidentiality and Disclosure • Obligation to keep certain information confidential. • Well established principle in law and medicine. • Why? • Competitive advantage (of how to engineer). • What? • Test results, designs, formulas, etc. • Suppliers identities, production costs, employee assignments, etc.

  2. Privileged Information:Confidentiality and Disclosure • The Texas Engineering Practices Act and NSPE recognize the concepts. • Consider the NSPE Code of Ethics, “ … 4. Engineers shall not disclose, with out consent, confidential information concerning the business affairs or technical processes of any present or former client or employer, or public body on which they serve. “

  3. Privileged Information:Confidentiality and Disclosure • The Texas Engineering Practices Act and NSPE recognize the concepts. • Consider the TEPA, “§137.61 (a) The engineer may reveal confidences and private information only with a fully informed client’s or employer’s consent, or when required by law or court order; or when those confidences, if left undisclosed, would constitute a threat to the health, safety or welfare of the public. … “

  4. Privileged Information:Confidentiality and Disclosure • The Texas Engineering Practices Act and NSPE recognize the concepts. • Consider the TEPA, “§137.61 (b) The engineer shall not use a confidence or private information regarding a client or employer to the disadvantage of such client or employer or for the advantage of a third party. “

  5. Privileged Information:Confidentiality and Disclosure • The Texas Engineering Practices Act and NSPE recognize the concepts. • Consider the TEPA, “§137.61 (c) The engineer shall exercise reasonable care to prevent unauthorized disclosure or use of private information or confidences concerning a client or employer by the engineer’s employees and associates.“

  6. Privileged Information:Confidentiality and Disclosure • How? • Non-disclosure agreements. • Consequences? • Civil suit (intellectual property) • In public infrastructure many items become public and secrecy becomes irrelevant. • Designs to public agencies become public. • Costs, production methods etc. • Selection (of the engineer) • Varies; Executive committee. • The “ratings” are public, but the actual discussions remain secret.

  7. Privileged Information:Confidentiality and Disclosure • How? • Non-disclosure agreements. • Consequences? • Civil suit (intellectual property) • In public infrastructure many items become public and secrecy becomes irrelevant. • Designs to public agencies become public. • Costs, production methods etc. • Selection (of the engineer) • Varies; Executive committee. • The “ratings” are public, but the actual discussions remain secret.

  8. Privileged Information:Disclosure by “Whistle blowing” • §137.55 … (c) … When, in an engineer’s judgment, any risk to the public remains unresolved, that engineer shall report any fraud, gross negligence, incompetence, misconduct, unethical or illegal conduct to the Board or to proper civil or criminal authorities. • §137.63 (2) exercise reasonable care or diligence to prevent the engineer’s partners, associates, and employees from engaging in conduct which, if done by the engineer, would violate any provision of the Texas Engineering Practice Act, general Board rule, or any of the professional practice requirements of federal, state and local statutes, codes, regulations, rules or ordinances in the performance of engineering services; …

  9. Privileged Information:Disclosure by “Whistle blowing” • What? • Act of an employee of informing the public or management of unethical or illegal behavior by and employer or supervisor. • In practice, many companies are concerned with the public disclosure and internal notification is tolerated as long as a “chain-of-command” is followed.

  10. Whistle Blowing • When? • Duty to report illegal behavior. • When internal checks fail and either safety or integrity is threatened. • 4 “tests” that should be met: • Need; Proximity; Capability; Last resort

  11. Whistle Blowing • Need: Clear and important harm that can be avoided. Sense of proportion. • Proximity: Must be in a clear position to report on the problem.Hearsay is not adequate. Firsthand knowledge and documentation are essential. Must be reasonably expert in the area to assess the situation. • Capability: Must have a reasonable chance of success. Not expected to risk career or family if unable to see through to completion • Last resort: Only if no-one else is more capable. Only if other means (internal communications) have/will fail.

  12. Whistle Blowing • Consequences: • Private corporation: termination is very likely; most employees are “at-will.” • Distrust: Even if the activity is truly wrong, you may not ever re-earn the trust of management. • Public employees: termination is still likely, but it might be considered retaliatory.

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