In our discussions about ombudsman programs so far, I have discussed the potential reasons and advantages to an organization for using an informal program, such as an ombudsman program. We have described the differences between the major models of ombudsman programs and we have also reviewed the common elements shared by all ombudsman programs.
In this installment, I discuss ombuds programs confidentiality and whether speaking with an ombudsman puts an organization on formal notice of an issue:
How Does Ombuds Confidentiality Work, and are there Exceptions to Confidentiality?
Confidentiality is a fundamental element of all types of ombudsman programs. The professional organizations of each of the major types of programs have developed rules and professional standards around confidentiality and exceptions, appropriate to their ombudsman approach. The American Bar Association Standards promulgated general standards regarding ombudsman confidentiality, as follows:
“An ombuds does not disclose and is not required to disclose any information provided in confidence, except to address an imminent risk of serious harm. Records pertaining to a complaint, inquiry, or investigation are confidential and not subject to disclosure outside the ombuds’s office. An ombuds does not reveal the identity of a complainant without that person’s express consent. An ombuds may, however, at the ombuds’s discretion, disclose non-confidential information and may disclose confidential information so long as doing so does not reveal its source. An ombuds should discuss any exceptions to the ombuds’s maintaining confidentiality with the source of the information.”
Exceptions to confidentiality are rare, but invariably include the requirement that the ombudsman disclose information in any situation where the failure to disclose information would create an imminent risk of serious harm to the person involved or to others. Many state laws impose affirmative an responsibility on anyone who has knowledge of a pending crime, child abuse, or other similar activities. Typically, ombudsman programs are structured to respect and comply with all such requirements. In addition, organizations using ombudsman programs often add their own exceptions to confidentiality appropriate to the context of their individual circumstances. Examples include, among others, national research laboratories, which may define imminent risk as automatically including any information which could jeopardize national security if not disclosed, or REALTOR® associations, which may include within this definition that there is an imminent risk of serious harm, when a violation of public trust is involved in the visitor’s claim.
The philosophy behind offering broad confidentiality is to create a sense of safety for those wishing to explore their options. Confidentiality encourages the candid dialogue necessary for an ombudsman to fully understand the person’s situation and their wishes and to comfortably explore options.
Does Speaking with an Ombudsman Put an Organization on Legal “Notice” of an Alleged Infraction?
Because the ombudsman is an informal, confidential resource, as the ABA standards observe, “[a]n ombuds is intended to supplement, not replace, formal procedures.” All organizations are still expected to have formal reporting mechanisms in place to serve as points for formal notice. Ombudsman programs are not intended to serve that function or to serve in any way as the agent of the organization for purposes of receiving notice. The confidentiality afforded the ombudsman is necessary to provide a sense of safety and security to those using the program, so that they feel confident that they can discuss their concerns without fear of disclosure. To provide this sense of safety, it is imperative that program users understand that speaking with an ombudsman does not impute notice to the organization, and if putting the organization on notice is important to the program user, an additional step or steps will be required. Because of the confidentiality afforded programs, it is imperative that ombudsman programs make program users aware that speaking with the ombudsman does not serve to put the organization involved on official notice of a concern or issue. It is therefore important that program users have a full understanding of the limitations and implications of using an ombudsman program and how that could potentially impact their legal rights.
The American Bar Association Standards include important provisions designed to ensure that ombudsman programs communicate these important issues. These provisions include the following:
1. “An ombuds should provide the following information in a general and publicly available manner and inform people who contact the ombuds for help or advice that –
a. “the ombuds will not voluntarily disclose to anyone outside the ombuds office, including the entity in which the ombuds acts, any information the person provides in confidence or the person’s identity unless necessary to address an imminent risk of serious harm or with the person’s express consent
b. “important rights may be affected by [and] [sic] when formal action is initiated and by and when the entity is informed of the allegedly inappropriate or wrongful behavior or conduct
c. “communications to the ombuds may not constitute notice to the entity unless the ombuds communicates with representatives of the entity as described in … [the ABA discussion on notice] …
d. “working with the ombuds may address the problem or concern effectively, but may not protect the rights of either the person contacting the office or the entity in which the ombuds operates
e. “the ombuds is not, and is not a substitute for, anyone’s lawyer, representative or counselor, and
f. “the person may wish to consult a lawyer or other appropriate resource with respect to those rights.”
The ombudsman himself or herself may in appropriate circumstances be the person who places the organization on notice of a concern. This may happen in the case where the individual reporting the concern is too fearful of reprisal to come forward publically, or a situation where the ombudsman has observed allegations by multiple complainants that reflect a pattern of concern. While the pattern would not necessarily be apparent to each individual reporting the concern, it could become apparent to the ombudsman under the circumstances.
I hope our readers have found these discussions about ombudsman programs helpful and interesting. Our next posting will conclude our discussions on ombudsman programs. Upcoming blog topics will include discussions about organizational conflict and coping and resolution tips for people who encounter typical workplace issues. Another series of upcoming posts will have tools, tips, and techniques for improving your communication skills. We hope you will find the upcoming posts useful and interesting.
Bruce MacAllister, J.D.
Senior Principal, BES