Confidentiality, Disclosure, and Fiduciary Responsibility

Article excerpt

Questions concerning the release of information have recently been raised in several areas, such as the Gulf war, the physical- and mental-health histories of public persons, the identification of rape victims, and the threat of AIDS. Ensuing discussions have been guided by an important insight: the responsibilities entrusted to particular professions contribute to the determination of whether release of information is considered right and proper. These responsibilities distinguish two kinds of professions. On the one hand, the news media, which serve the common good by enabling society access to information that belongs within the public domain. On the other hand, professions that care for the mental, physical, or spiritual well-being of individual persons, and which are obliged to protect the specific histories of those whom they serve. Generally speaking, the news media are obliged to report or disclose; therapists, physicians, and ministers are obliged to maintain confidentiality. These four professions will be considered in this note.(1)

Almost all the relevant controversies raised in 1992 concern whether these general obligations ought to admit any exceptions. These controversies offer us a rich opportunity: they invite us to face not only the thorny issues about information, but also the relationship of some particular professions to ethics. In addressing this relationship, the recent return of virtue ethics becomes helpful.(2) Three particular virtues emerge: prudence, which enables journalists and physicians to make right decisions;(3) which grounds the priority of all confidences; and justice, which protects the common good. These three virtues guide us in determining when exceptions must be made to the general obligations.

The News Media

Generally speaking, the news media's ethical debates for 1992 concerned whether journalists ought always to disclose. The debates dealt with three major areas of concern: security leaks, the private lives of public persons, and the naming of rape victims. But their central concern, disclosure, is itself bracketed by two other issues. First, prior to disclosure is the journalist's task to obtain information. In light of the Gulf war journalism's most important ethical question this year concerned not the release of information, but the antecedent obligation of getting privileged access to information. Censorship of war coverage concerned not what journalists could release, but what they could know: the Pentagon's policy of press pools during the Gulf War significantly restricted the press, and therefore, the public's access to information.(4) Second, subsequent to the three topics about disclosure is the question of whether a journalist is always obliged to keep a confidence. This year, in particular, the legal and moral rightness of naming one's sources was discussed in light of a Supreme Court ruling. Five issues, therefore, deserve our attention.

Wartime Coverage

Press pools were a rare phenomenon before Grenada.(5) From World War I until Vietnam a cooperative relationship existed between the military and the press: reporters were allowed to the front but had to submit their reports to government censorship.(6) Since Vietnam was an undeclared war, the military, unable to censor the press, countered with its own propaganda program. Existing collaboration collapsed under the weight of profound mutual suspicion until finally Secretary of State Dean Rusk asked one questioning reporter, "Whose side are you on anyway?"(7) Vietnam's legacy of suspicion deprives the press of the unrestricted access to the battlefield it once enjoyed.

For the development of this policy journalists blame themselves. Quoting Time's Washington Bureau Chief, Peter Schmeisser reports: "Throughout the long evolution of the Department of Defense pool, the press willingly, passively, and stupidly went along with it. That is the original sin which got us where we are, and I don't blame anybody as much as I blame us. …