Legal Topics

Confidentiality is a legal concept that is often misunderstood and misapplied, especially in the environment of public higher education. There are numerous examples from this institution and others of faculty, staff and students who have relied on a belief that certain communications or materials were confidential and therefore not subject to mandatory disclosure, only to find that their belief was incorrect and that they were compelled to make public disclosure of these communications or materials to avoid facing legal penalties. A basic understanding of the legal principles of confidentiality would have averted most of these unfortunate situations.

For purposes of this essay, we are dealing strictly with the legal definition of confidentiality, that is, those communications that the parties to the communication cannot be compelled by process of law to disclose to any third party. An individual may choose to keep any communication “confidential” in the sense that he/she does not voluntarily disclose it to any other person. However, unless the law has defined a particular category of communications as confidential, the persons privy to that communication can be compelled to disclose it upon penalty of law.

The essential fact is that the only communications that are truly confidential are those that are defined as such by applicable state or federal law. This applies to any communication, regardless of the medium: verbal, print, electronic or other. The concept of confidential communications is contrary to the major goal of the law which is to administer justice based upon a rational review of the pertinent facts. Drawing a curtain around certain facts and excluding them from consideration is at odds with this principle. Consequently, the courts and state legislatures have been very parsimonious in designating any class of communications as confidential. There are, in fact, only a few such categories of confidential communications.

The most commonly encountered categories of confidential communications are physician-patient communications, therapist-patient communications, attorney-client communications, clergy-parishioner communications and spousal communications. In South Carolina, no other types of communication are truly confidential in the legal sense. Personnel records (including letters of reference, “anonymous complaints,” tenure and promotion files, and evaluations), financial records and criminal records are not confidential. These communications are subject to disclosure pursuant to a discovery request, subpoena or court order, and failure to produce the record (or testify) is considered “contempt of court,” an offense punishable by fine or even imprisonment.

It is important that University students, staff and faculty understand these principles and apply them in their official capacities. It would be misleading to assure others, verbally or in a written policy (or other communication), that discussions or materials will be “confidential” unless those communications are specifically protected by law. Not doing so could create legal liability for both Clemson and the individual. To avoid potential problems, we suggest that the following language be used as an alternative: “These communications will be kept confidential to the extent permitted by law.” Hopefully, this language will reinforce the sensitive nature of these communications while not misleading persons into believing that there is absolute legal confidentiality where it does not necessarily exist.

Attorney-Client Privilege
As noted above, South Carolina recognizes that communications between an attorney and a client are confidential and may not be disclosed without the permission of the client. This question often comes up when students, staff, and faculty seek legal advice from the Office of General Counsel. Not all discussions or information disclosed to the OGC will be confidential. It is important to realize that all of the attorneys employed in the OGC represent Clemson University; and, as a matter of law, the University is our client — not any individual employee or student. In the event that the knowledge of a crime, potential crime or similarly critical matter is disclosed to one of the University’s attorneys, he or she has an ethical obligation to disclose that information to the appropriate person. For this reason, persons seeking legal advice from the Office of General Counsel are encouraged to discuss any potential conflicts of interest at the outset.

Freedom of Information Act
Faculty, students and staff at Clemson should also be aware that, as a public institution, we have even less expectation of confidentiality than a private entity. This is because we are subject to the S.C. Freedom of Information Act (FOIA). This act specifically provides that all communications of a public agency or public employee are subject to public disclosure unless specifically exempted by the act. 

Family Educational Rights and Privacy Act
The Family Educational Rights and Privacy Act (FERPA), sometimes referred to as the “Buckley Amendment,” is a federal law that is unique to educational institutions. This law makes most education records of students who matriculate at Clemson “confidential” and provides penalties for violating that privacy. Read more about FERPA and its application to Clemson.

Clemson University students, faculty and permanent staff have informal and formal methods available for resolving concerns and complaints whether academic or employment-related. The information below is a summary of the available procedures and is not intended to replace or amend the actual policies and procedures.

Undergraduate Students

Undergraduate students are encouraged to seek the assistance of the ombuds to resolve complaints and conflicts informally. For more information about the services of the student ombuds or to request assistance, contact Dr. R. Gordon Halfacre at 864-656-4353 or by e-mailing rhlfcr@clemson.edu.

For those matters that cannot be resolved informally or with the assistance of the student ombuds, the Academic Grievance Committee may hear grievances regarding:

• complaints of discrimination in academics (excluding student employment) against a faculty or staff member based upon race, sex, religion, national origin, age, disability, sexual orientation or other legally protected status;
• complaints of a personal or professional nature involving an individual undergraduate student and a faculty member;
• claims of inequitable final grades; and
• claims of unfair treatment in an attendance-related issue.

Detailed rules and procedures for filing an academic grievance, including important time periods and appeal rights, are set forth in the Undergraduate Announcements.

Graduate Students

Graduate students are encouraged to seek the assistance of the faculty and student ombuds as an informal method for resolving complaints, problems and conflicts. For more information about the Faculty and Student ombuds or to request assistance, call 864-656-4353 or e-mail ombudsman@clemson.edu.

For matters that cannot be resolved informally or with the assistance of the faculty and student ombuds, the Graduate Student Academic Grievance Committee may hear grievances regarding:

• complaints of a personal or professional nature involving an individual graduate student and a faculty member;
• claims of inequitable final grades;
• cases involving graduate student employment; and
• cases involving graduate student academic dishonesty.

Detailed rules and procedures for filing an academic grievance, including important time periods and appeal rights, are set forth in the Graduate Announcements.

Faculty

The Faculty Senate, through the provost, provides an ombuds to help resolve disagreements or faculty issues before they reach the formal grievance process. The faculty and student ombuds, a professor knowledgeable about the grievance process, may be reached at 864-656-4353 or at ombudsman@clemson.edu.

For those matters that cannot be resolved through informal methods or with the assistance of the faculty and student ombuds, there are two grievance procedures available to faculty members and academic administrators with faculty rank — Faculty Grievance Procedure I (GP-I) and Faculty Grievance Procedure II (GP-II). GP-I is reserved for grievances regarding:

• the dismissal or termination of tenured faculty;
• the dismissal or termination of non-tenured faculty prior to the expiration of their “employment” contract;
• complaints of discrimination based upon race, sex, religion, national origin, age, disability, sexual orientation or other legally protected status; and
• complaints by non-tenured faculty that violations of academic freedom significantly contributed to a decision to cease, in any manner, his/her appointment with the University.

GP-II is available for grievances not covered by GP-I, such as complaints of inequitable work assignments, unfair performance reviews or improper implementation of policies and procedures.

Grievance counselors appointed by the Faculty Senate advisory committee are available to assist faculty in understanding which grievance procedure to use; however, they do not have the authority to render a decision on the merits of the grievance. For more detailed information regarding the Faculty Grievance Procedures, including important deadlines and the right to appeal, please refer to the Part V of the Faculty Manual.

Staff

Employees are encouraged to meet with their immediate supervisor in an effort to resolve any complaint informally. Alternatively, staff may wish to work with the staff ombuds to resolve complaints and conflicts informally. For more information about the staff ombuds or to request assistance, call 864-656-5353 or e-mail ombudsman@clemson.edu.

When informal resolution is not possible, permanent, non-faculty employees may seek resolution for adverse employment actions through the University's Employee Grievance Procedure.  An "adverse employment action" means a demotion, including involuntary reassignment, salary decrease based on performance, suspension or termination. For more detailed information regarding the Employee Grievance Procedure, including important deadlines and the right to appeal, please refer to the Clemson University Personnel Policies and Procedures Manual.

Athletic coaches and employees in temporary, temporary grant and time-limited positions do not have grievance rights.

From time to time, employees of Clemson University receive lawsuits, subpoenas, requests for production of documents or other legal documents related to their employment at the University. Should any employee receive such a document, they should immediately forward a copy to the Office of General Counsel. The law imposes strict deadlines — in some cases, only a few days — on responding to these legal documents and both the University and the individual employee may be subject to penalties for failure to comply in a timely manner. Prompt action is imperative. Employees may also receive regular correspondence from an attorney or law firm; while the Office of General Counsel will be glad to review or discuss such correspondence with an employee, it is not necessary to forward these communications to our office. However, anything that is titled "Summons," “Subpoena,” “Notice of Deposition,” “Request for Production of Documents” or otherwise appears to be a court document should be acted upon promptly.

Upon receipt, the Office of General Counsel will review the document and advise the employee on the appropriate response. If there are documents to be produced, we will assist the employee in locating those documents, screening them for material that we are not required or allowed to produce, and discussing any issues or concerns related to the production of the requested documents. If an employee is subpoenaed to testify in a court case or deposition, we will assist the employee in preparing for his or her testimony. Where appropriate or necessary, we will provide for legal representation of the employee at the legal proceeding.

In rare instances, University employees are actually named as defendants in lawsuits related to their employment at Clemson. All employees of the University are covered by the South Carolina Insurance Reserve Fund for civil claims made against them for acts that are within the scope of their employment. In the unlikely event of such a claim, an attorney will be provided for you, and the SCIRF will pay for your legal defense. With a few narrow exceptions, South Carolina law provides that state employees cannot be individually or personally liable for alleged acts or omissions that occur within the scope of their state employment. Consequently, the University will immediately request that the court dismiss the lawsuit against the employee and substitute the University as defendant. These requests are generally granted as a matter of law.

The procedures outlined above apply only to legal proceedings that arise out of a person’s employment at Clemson University. Private, personal legal actions (such as a divorce or bankruptcy) do not need to be forwarded to the Office of General Counsel, and, by law, this office cannot assist you in these matters.

Again, we stress the importance of immediately forwarding any legal notice to the Office of General Counsel. Failure to do so could have serious ramifications including jeopardizing SCIRF coverage of the claim, forfeiture of the case and legal penalties, including fines and even imprisonment.

In South Carolina, it is unlawful for persons to transfer or give alcoholic beverages to persons under the age of 21. Violations constitute criminal misdemeanors and are punishable by fine or imprisonment. S.C. Code §§ 61-4-90, 61-6-4070.

Questions often arise regarding the responsibility of “social hosts” who are hosting an event at which alcoholic beverages are served when underage guests — anyone under the age of 21 — may also be present. In 2007, the South Carolina Supreme Court made it clear that social hosts may be legally liable in the event that an inebriated underage guest injures himself or others as a result of the consumption of alcohol served by the social host. The two cases in which the Supreme Court considered this issue involved facts that are not uncommon. In one, a 19-year-old guest attended a party where alcoholic beverages were available to all guests. He consumed alcohol and left with other guests. He went home with another guest where he was detained in order to “sober up,” but when he drove from this guest’s home, the 19-year-old was killed in a one-car accident. The party hosts were sued for wrongful death. In the other case, another 19-year-old guest attended a business-related function where he consumed alcohol. He left that party and traveled to several other locations before being involved in a two-car accident in which he and a passenger in the other car were killed. The party hosts were sued for negligence.

Faculty, staff and students should take appropriate measures when serving alcohol at any event — whether it is a planned event or a casual get-together and regardless of whether it is on campus or off — to prevent the consumption of alcohol by persons under the age of 21. Of course, if the event is on campus or associated with an official University event, hosts must also comply with all Clemson University policies, including the Facilities Use Policy and Alcohol and Drug Policies.

From time to time, faculty may wish to offer students the opportunity to participate in off-campus academic experiences. Doing so requires careful planning and supervision by the faculty member. To this end, students should be warned of the specific risks associated with the off-campus activity so that they can make an informed decision about whether or not to participate in the activity. Students should not be allowed to participate in the off-campus event unless they voluntarily agree to accept those risks and they voluntarily agree to release Clemson University from liability for any claims or injuries that may arise from their participation in the activity.

The form linked below, titled “Assumption of Risk and Release from Liability,” is recommended as a template to be used for all off-campus academic activities. The form is designed to inform students of the activity, to warn them of the associated risks, and to document each student’s agreement to assume those risks and to release the University from liability for any claim, injury or other damage caused by his or her participation in the activity.

The following information requested on the “Assumption of Risk and Release from Liability” form should be completed by the faculty member before providing the form to students for their review and signature:

• The “ACTIVITY” should be described in detail. For example, “field trip to museum” is not sufficient; “trip to Greenville County Art Museum to tour studio space” provides the specific information necessary to help students make an informed decision about the risks attendant with the proposed activity. Similarly, “white water rafting” is not sufficient; “white water rafting trip on the Chatooga River” provides important details that will help students better assess the risks involved with this activity.
• The department or club that is responsible for organizing or sponsoring the activity should be identified so that students know who to contact with questions or concerns about the activity.
• The date(s) of the proposed activity also should be clearly set forth for students to consider.
• The responsible faculty member should give careful thought to the “inherent risks” associated with the activity. The risks involved with touring studio space at an art museum are vastly different from those inherent to white water rafting on the Chatooga River. Remember that inherent risks also may include any risks associated with transportation to and from the activity.

When completing the information on the release, it is also helpful to:

• Use clear, unambiguous and understandable language; avoid legal jargon.
• Be sure that each student completes a separate release.
• Provide each student with adequate time to review and sign the document.

If you have any questions about this form or the waiver and release process, please do not hesitate to e-mail them to ogc-l@clemson.edu.