Studies of Welfare Populations: Data Collection and Research Issues. State Privacy and Confidentiality Considerations

06/01/2002

It would be useful to conduct a state-by-state analysis of how privacy, confidentiality, and consent laws affect research and to compare the results with the impacts of federal laws and regulations. This analysis would contribute significantly to achieving a more complete and substantial understanding of how state and federal requirements interact with one another. However, this task is far beyond what we can do here. Instead, we make some comments based on the secondary literature.

State constitutional privacy protections are very diverse. For example, in California, privacy protections are expressly mentioned in the constitution, while Washington state's constitution requires that certain information--such as who receives welfare--be publicly available. In addition to state constitutional provisions regarding privacy and confidentiality, every state has enacted numerous privacy protection laws principally drafted in response to a specific perceived problem. The result is many narrow prescriptions, rather than a coherent statement of what information is private, when it can be collected, and how it can be used. Consequently, it is hard to know exactly what information is protected, and how it is protected. In addition, many privacy laws have exceptions and exemptions that make them hard to understand, hard to apply, and subject to divergent interpretations (Stevens, 1996). The resulting laws have been described as "reactive, ad-hoc, and confused" (Reidenberg and Gamet-Pol, 1995).

There are two broad classes of laws, those dealing with privacy in general and those that mention privacy and confidentiality in the process of establishing programs. The general privacy laws deal with computer crime, medical records, the use of Social Security numbers, access to arrest records, and other issues. Table 8-1 indicates the presence of general state privacy protections for the states in which there are ASPE welfare leavers studies (Smith, 1999).(12) It shows that state privacy laws cover a broad range of issues from arrest records to wiretaps, and that some topics, such as arrest records, computer crime, medical records, and wiretaps, have led to more legislative activity by states than other topics such as the uses of Social Security numbers, credit information, or tax records. Moreover, some states, such as California, Florida, Maryland, Massachusetts, Ohio, and Washington, have laws that cover many more areas of concern than other states such as Missouri, South Carolina, or Texas. These laws affect researchers when they seek to utilize Social Security numbers for matching or to obtain school, arrest, or tax records.

 

TABLE 8-1
Privacy Laws in States with Welfare Leavers Studies
  AZ CA DC FL GA IL MD MA MO NJ NY NC OH PA SC TX WA US
Arrest records x x x x x x x x x x x   x x x   x  
Computer crime x x   x x x x x x x x x x x x x x x
Credit x x   x x   x x   x x   x     x x x
Criminal justice x x   x x x x x   x   x x   x   x x
Employment   x x x x x x x   x x x x x     x x
Government data banks x x x x   x x x x x x x x x x   x x
Insurance x x x x x x x x x x   x x   x     x
Medical x x x x x x x x x x x   x x   x x x
Polygraphing x x x   x x x x     x     x x x x x
Privacy statutes x x   x x x   x   x x x   x x x x x
Privileges         x   x x x x x x x     x x  
School records x x   x   x x x   x x   x     x x x
Social Security numbers   x   x x             x x       x x
Tax records x       x   x x     x x x   x   x x
Testing       x     x x       x x x     x  
Wiretaps x x x x x x x x   x x x x x   x x x
Miscellaneous   x   x   x   x     x             x
x: the state law covers the subject (but not necessarily that the law affords a great deal of privacy protection)
Blank: the state does not have a law covering the topic

Programmatic laws regulate the collection and uses of information as part of the social program's legislation at the federal and state levels. Harmon and Cogar (1998) found that federal program statutes and regulations provide substantial privacy protections similar to that in the federal Privacy Act. Explicit limits on disclosure within the statutes authorizing federal programs and agencies are common, as is the imposition of informational privacy protections on states via federal program regulations. Harmon and Cogar (1998) also found that--as with the provisions of the Privacy Act--federal regulations do not clearly specify penalties or the consequences of violating the regulations by state or local personnel or contractors. Their study of five states found state information privacy laws to be similar to federal protections.

Most of the state and federal laws regarding the collection and use of data for programs are quite restrictive, but they typically have a clause, similar to the "routine use" provisions in the federal Privacy Act, that allows agencies to use data to achieve the "program's purpose." Researchers and others who want access to the data use this clause in the same way as the "routine use" clause of the Privacy Act. Harmon and Cogar (1998) suggest that federal agencies often label their data uses as "routine" without determining if the use is consistent with the purpose for which the information was collected. Some state agencies follow a similar practice, although standards vary dramatically from state to state and agency to agency.

In their report about experiences in five states, "The Protection of Personal Information in Intergovernmental Data-Sharing Programs," Harmon and Cogar (1998) describe the complexity of the information protection provisions that apply to individuals under the U.S. Department of Agriculture (USDA) Food Stamp Program's Electronic Benefit Transfer (EBT) project and the HHS Child Support Enforcement Program's Federal Parent Locator Service/National Directory of New Hires project. None of the states reported major violations of privacy in the operation of the Child Support Enforcement and EBT programs, but the significant variation in regulation of information across the states could prove a significant barrier to the overall data-sharing responsibilities of the systems and for researchers who want to use the data. Moreover, most of the states, with the exception of Maryland, paid little heed to researchers' needs. Maryland's statutes specifically authorize public agencies to grant researchers access to personal information under specified conditions. This statute appears as Appendix 8-A as an example of model legislation that authorizes researcher access to data.(13)

UC Berkeley's Data Archive and Technical Assistance also explored confidentiality issues in its inventory (UC Data Archive and Technical Assistance, 1999) of social service administrative databases in 26 states. This study found that researchers and administrators from other programs who seek access to social service data must negotiate with the owners of the data, and they must demonstrate that they meet the legal criteria for access. Legislation and regulations were characterized as generally requiring the party petitioning for access to the data to identify: (1) the benefits associated with release of the data, (2) how the research will benefit administration of the programs, and (3) how confidentiality of the data will be protected from unauthorized disclosure.

In most cases, a formal contract or interagency agreement was required, and often these agreements are required because of legislative mandates. Apart from the legal issues of gaining access to confidential data, there are often coordination issues that affect the transfer of information from one agency to another. Only about half of the states surveyed for this report had specific, well-outlined policies and procedures for sharing confidential administrative data.

The use of administrative data for research purposes has not been considered in the development of most federal and state legislation. The major purpose of most federal and state confidentiality and privacy legislation has been to regulate the use and disclosure of information about individuals.(14) As a result, a strict interpretation of most laws might preclude research uses that require data matching even though identifiers are removed before data analysis and researchers have no interest in individual information. This outcome would be mostly inadvertent. In their desire to protect individuals, lawmakers typically have written legislation that makes no distinction between research uses and disclosure of information about individuals. State and federal agencies sometimes have overcome restrictions on research by accommodating researchers through the use of the routine use and program purpose clauses. This accommodation is fitful and uncertain because it depends on each agency's interpretation of these clauses and its overall interest in allowing researcher access to administrative data.

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