At a glance
Advocate communication with survivors are confidential and privileged. Federal and State law requires advocates to keep information confidential. That means you may not reveal any information about a survivor without their written permission – with some narrow exceptions.
WHAT? Responding to requests for information about missing persons from a law enforcement agency
As part of a missing persons investigation, law enforcement may ask you for information about program participants and their children including the use of your programs services or if the survivor is voluntarily missing. First, advocates need to verify that are speaking to a law enforcement officer and the identity of their agency. Inform the officer that before you can proceed, you will need the agency phone number and name to confirm the identity of the officer and then call back. Before calling back, the advocate should verify the law enforcement agency phone number through a phone book or a website.
Keep in mind that the law enforcement officer may not be familiar with your confidentiality obligations and you may have to explain your agency’s procedures. Tell the officer that you are not allowed to disclose any information about program participants without written permission and it may take some time before you can respond to their request, if at all.
WHEN? At any time
High numbers of persons are reported missing every year. And, missing person cases can remain open indefinitely. Law enforcement who investigate these cases are trying to determine if the survivor is voluntarily missing or may be in danger as a result of domestic violence or other circumstances.
Law enforcement may ask advocates for information about specific survivors who have used your program services in the past or are currently using services. This may happen during a phone call; law enforcement could show up at your program office or shelter or in coordinated community response meeting. But advocates can only give very limited information at certain times. Previous or current program participants are in charge of how and when their information is shared.
WHY? Your communications with survivors are confidential
Under federal and state law, advocates must receive permission from program participants in writing (via a Release of Information) to allow for information sharing. Make sure you are clear about who they want to have their information, what exactly should be shared, and why they want the information shared. Always remember that a program participant’s information belongs to her, not the program.1
What if I can’t get written permission right away?
If the program participant gives you verbal permission and is not available to sign a written release immediately, advocates should describe the circumstances, note it on the release of information (i.e., “xx could not sign in person because she was at work; gave permission over the phone, plans to stop by on xx date to sign”), and attempt to get written permission as quickly as possible.
What if the program participant is physically unable to sign the Release of Information?
For survivors who are physically unable to sign the release of information (i.e. because of a disability or for whatever reason, cannot sign a document), the survivor can direct the advocate to sign their name on their behalf, and add the advocates initials behind the survivor’s name. Or, the survivor could direct a notary to sign on their behalf.
HOW? Talk it out.
Talk to survivors about general law enforcement practices during a missing persons investigation 2 and how information sharing works. Let survivors know that you will keep their information confidential (including the fact that the survivor has used program services) and that you and your program are committed to releasing information ONLY when they have asked you to and ONLY after you have discussed together how that information could be used.
Reassure the survivor that you will only share the specific information that she has given you permission to disclose. Be sure to talk about the times when you are required to make exceptions to this practice.
Talk to survivors about the possibility that their abuser may report them missing to law enforcement. Explain that if the survivor believes that their abuser may report them as missing, law enforcement may contact the program to find out if the survivor is staying there or using any services. It is an opportunity for the survivor to make their wishes clear about what information to share with law enforcement. Help the survivor understand the potential positive and negative consequences of sharing information with law enforcement who are conducting a missing persons investigation.
Pros of sharing information with law enforcement:
- If the survivor tells law enforcement that they are “voluntarily missing,” law enforcement can close the missing persons investigation of the survivor.
- Missing persons cases can remain open indefinitely, unless law enforcement learns that the person is “voluntarily missing”
- Law enforcement will stop investigating and talking to your neighbors, employers or other people and reduce the chances of information getting back to the abuser.
- The survivor will be able to limit intrusions into their privacy that are part of this type of law enforcement investigation
- Restrict the abuser’s ability to use law enforcement and the missing person’s report process as a strategy to track the survivor and continue further acts of abuse.
Cons of sharing information with law enforcement:
- Information about the survivor’s general location could be disclosed to the abuser.
- When a missing person has been found, law enforcement may close the case and report information about where the person was found to the person who made the original Unless, law enforcement learns that the person does not want any personal identifying information3 or their location disclosed.
- There is the potential for a lack of control over and clarity about what information will be shared with law enforcement, the abuser and anyone else.
- Ask law enforcement what their policy is regarding with whom they will share information.
- The survivor’s safety is relying on law enforcement records to clearly indicate that any personal identifying information or their location not be disclosed to anyone making a request for the public release of records.
What if the survivor who has been reported as missing is currently using your services?
You can offer the survivor several options:
- If the survivor is concerned about any information that could link the abuser to the survivor’s location, information does not have to be disclosed to law enforcement.
- The survivor could call law enforcement directly and tell them that they are safe, “voluntarily missing” and does not want any personal identifying information or the location documented in the police report. One benefit of the survivor calling directly is that it eliminates any written connection with your agency through a release of information.
- The survivor can sign a release of information from your organization that states they are safe and voluntarily missing, and you can remind law enforcement not to document the location or any personal identifying information in the police report
What if the survivor who has been reported as missing has used our services in the past?
As a part of your confidentiality obligations, you cannot tell law enforcement that the survivor used your services in the past without written permission. Therefore, if you are unable to contact the survivor to obtain permission, you cannot provide any information to law enforcement. If you can contact the survivor and they want to let law enforcement know that they are safe and voluntarily missing, you can discuss the options described above for communicating with law enforcement.
Keep in mind that any signed release of information is only authorized for ninety days from the date of the signature. Even if a former resident tells you that it is okay to contact law enforcement, check to make sure that any previously signed release of information is still valid.
You may be required to release information without a program participant’s written permission:
- In the event of a court order, after a judge privately reviews the records to determine their relevance. It’s best to seek legal counsel before releasing records in response to court orders and subpoenas.
- If the program suspects child abuse or neglect, you are required to contact Child Protective Services. Be aware that CPS may ask for the child’s relevant records. CPS does not have the right to request the parent’s records. This is a good reason to keep separate files for parents and children.
- If the program knows there is potential suicidal behavior or threat of harm to others that is likely to result in a clear, imminent risk of serious physical injury or death to themselves or another person.
- Advocates should be aware that there are reporting requirements for adult persons with disabilities who meet the legal definition of “vulnerable adult” and have experienced abuse under RCW 74.34. Advocates should check their agency’s policies regarding when and how to make a mandatory report on behalf of a “vulnerable adult.”4
What you need to know about program policies
- Steps to take when law enforcement is requesting information or records.
- If law enforcement requests information or records, contact your program’s designated person for help.
- Steps to take when a program participant asks for information or records to provide law enforcement.
For detailed information on confidentially and record-keeping, check out the following resources:
- RCW 5.60.060 (8) A domestic violence advocate may not, without the consent of the victim, be examined as to any communication between the victim and the domestic violence advocate. RCW 70.123.076 (1) . . . , a domestic violence program, an individual who assists a domestic violence program in the delivery of services, or an agent, employee, or volunteer of a domestic violence program shall not disclose information about a recipient of shelter, advocacy, or counseling services without the informed authorization of the recipient.
- See Appendix A, the DRAFT MODEL POLICY, Law Enforcement Investigations Involving Missing People and Community Based Domestic Violence Programs, Washington Association of Sheriffs and Police Chiefs & The Washington State Coalition Against Domestic Violence, May, 2009. This draft policy establishes guidelines for investigating missing persons who may be victims of domestic violence and who may be interacting with community based domestic violence programs.
- Personally Identifying Information: “The term “personally identifying information” or “personal information” means individually identifying information for or about an individual including information likely to disclose the location of a victim of domestic violence, dating violence, sexual assault, or stalking, including
- a first and last name;
- a home or other physical address;
- contact information (including a postal, e-mail or Internet protocol address, or telephone or facsimile number);
- a social security number; and
- any other information, including date of birth, racial or ethnic background, or religious affiliation, that, in combination with any of sub-paragraphs (A) through (D), would serve to identify any individual.” The Violence Against Women and Department of Justice Re-authorization Act of 2005, Public Law 109-162’ Sec. 3(a)(18)
- For additional information about the Vulnerable Adult statute and advocacy strategies, “Basic Legal Advocacy Information and Legal Requirements for Accessibility, Chapter 5, pgs. 3-6, Enough and yet not Enough, An educational resource manual on Domestic Violence Advocacy for Persons with Disabilities in Washington State, revised 2003.