209 F.3d 944 (7th Cir. 2000)
Ronald C. DENIUS,    Plaintiff-Appellant,v.Wayne DUNLAP and Gary Sadler1,    Defendants-Appellees.
No. 99-1402
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 6, 2000Decided April 11, 2000

Appeal from the United States District Court   for the Central District of Illinois, Urbana Division.  No. 97-C-2088--Harold A. Baker, Judge. [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Coffey, Flaum and Kanne Circuit Judges.
Flaum, Circuit Judge.


1
Ronald Denius filed suit  against Wayne Dunlap in his individual and  official capacity as director of the Lincoln  Challenge Program ("LCP") seeking injunctive,  declaratory and monetary relief under 42 U.S.C.  sec.sec. 1983 and 1988. Denius alleges that  Dunlap violated his constitutional rights when  Dunlap refused to renew his employment contract.  The district court granted summary judgment in  favor of the defendant on qualified immunity  grounds. For the reasons stated herein, we affirm  in part and reverse and remand in part.

I.  BACKGROUND

2
The LCP is an eighteen-month program for 16 to  18 year old high school dropouts located on the  premises of the now-closed Chanute Air Force  Base. Students participating in the LCP live on  campus for the first five months of the program  and then live off campus for the remainder of the  program under the supervision of mentors. The LCP  uses a military training method with the goal of  teaching "life skills" instead of military skills  and has as its objective that all participants  obtain a GED. By 1996, the LCP had two 400  student classes each year. In 1996, the LCP  received 100 percent of its funding from the  federal government but was administered by the  State of Illinois. Students who have felony  convictions are not eligible to participate in  the LCP.


3
In 1993, Wayne Dunlap, an Army colonel, became  the director of the LCP. Dunlap retired from the  Army in 1994 but continued to serve as director  of the LCP, becoming an employee of the State of  Illinois.


4
Ronald Denius is a retired Air Force technical  sergeant who has earned two bachelor's degrees  and a master's degree. At the time he retired  from the Air Force, Denius had a "top secret"  security clearance. In March 1994, Denius began  work as a teacher at the LCP under a three-month  contract that was to last until the end of that  school year. Denius taught math, science, social  studies, language arts and writing skills. Denius  did not carry a weapon or have any duties beyond  those of a typical teacher.


5
On July 1, 1994, Denius signed a two-year  contract to continue teaching at the LCP. At this  time, he signed a release form that authorized  the LCP to perform a criminal background check  and collect his educational records (the "1994  Release"). This release did not contain a time  limitation. Criminal background checks were  performed on the initial group of LCP instructors  in 1994, but no further criminal background  checks were performed on LCP personnel until  1996.


6
In July of 1996, Denius was offered the  opportunity to renew his teaching contract with  the LCP provided he sign an Authorization for  Release of Personal Information  ("Authorization"). This Authorization required  Denius to consent to the release of considerably  more confidential information than provided in  the 1994 Release. LCP Director Dunlap had  acquired the Authorization from Captain John  Moraitis of the Illinois State Police who  informed Dunlap that the Authorization was used  by the police for background checks of  gubernatorial candidates and applicants for  employment with the State Police. Moraitis  suggested that Dunlap consult an attorney before  using the Authorization at the LCP, but Dunlap  did not heed this advice.


7
The Authorization provided in pertinent part:


8
For the period of one year from the execution of  this form I ________, do hereby authorize a  review of and full disclosure of all records  concerning myself to any duly authorized agent of  the Lincoln Challenge Program, whether the said  records are of a public, private or confidential  nature.


9
The intent of this authorization is to give my  consent for full and complete disclosure of  records of educational institutions; financial or  credit institutions, including records of loans,  the records of commercial or retail credit  agencies (including credit reports and/or  ratings); and other financial statements and  records wherever filed; records maintained by the  National Personnel Records Center, the U.S.  Veteran's Administration, and County, State or  Federal Law Enforcement Agencies; employment and  pre-employment records, including background  reports, efficiency ratings, complaints or  grievances filed by or against me and the records and recollections of attorneys at law, or of other counsel, whether representing me or another  person in any case, either criminal or civil, in  which I presently have, or have had an interest.


10
. . . I also certify that any person(s) who may  furnish such information concerning me shall not  be held accountable for giving this information;  and I do hereby release said person(s) from any  and all liability which may be incurred as a  result of furnishing such information. I further  release the Lincoln Challenge Program from any  and all liability which may be incurred as a  result of collecting such information.


11
Denius signed the 1996 employment contract but  refused to sign the Authorization. Dunlap told  Denius that his contract was not valid unless he  signed the Authorization. Denius attempted to  resume his teaching responsibilities on August 2,  1996, the beginning of the school term for that  year. When he did so, Dunlap informed Denius that  he could not be employed by the LCP unless he  signed the Authorization, and he asked Denius to  leave the LCP premises. Denius's refusal to sign  the Authorization was the sole reason his  employment contract with the LCP was not renewed.


12
At the time he required Denius to sign the  Authorization, Dunlap did not intend to use it  for any purpose other than to perform a routine  criminal background check because the LCP did not  have the funds to perform a more thorough  background investigation. If the LCP had  possessed the funds, Dunlap would have conducted  a more extensive background check. However,  Dunlap did not tell Denius that he only intended  to use the Authorization for a routine criminal  background check.


13
Denius filed suit under 42 U.S.C. sec.sec. 1983  and 1988 asserting that Dunlap had violated his  constitutional rights under the First, Sixth and  Fourteenth Amendments by refusing to renew his  employment contract unless he signed the  Authorization. Denius sought injunctive,  declaratory and monetary relief. The district  court granted summary judgment in favor of  Dunlap, finding that Dunlap was entitled to  qualified immunity for all of the claims brought  by Denius. Denius now appeals.

II.  DISCUSSION
A.  Standard of Review

14
The district court granted summary judgment to  the defendant and denied summary judgment to the  plaintiff. We review a district court's summary  judgment decisions de novo. See Henderson v.  Sheahan, 196 F.3d 839, 848 (7th Cir. 1999). In  conducting our evaluation, we view all evidence  in the light most favorable to the non-moving  party and draw all reasonable inferences in that  party's favor. Anderson v. Liberty Lobby, Inc.,  477 U.S. 242, 255 (1986).

B.  Monetary Relief

15
The district court concluded that Denius's suit  for monetary damages was barred because Dunlap  was protected by qualified immunity. Denius  argues that the district court erred in reaching  this conclusion.

1.  Qualified Immunity

16
The doctrine of qualified immunity is an  affirmative defense to allegations that a state  official violated the constitutional rights of a  plaintiff. Siegert v. Gilley, 500 U.S. 226, 231  (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815  (1982). This defense is available only to state  officials who occupy positions with discretionary  or policymaking authority, and it protects those  individuals solely when they are acting in their  official capacity. Harlow, 457 U.S. at 816. These  officials "are shielded from liability for civil  damages insofar as their conduct does not violate  clearly established statutory or constitutional  rights of which a reasonable person would have  known." Harlow, 457 U.S. at 818; see Wilson v.  Layne, 119 S.Ct. 1692, 1696 (1999); Anderson v.  Creighton, 483 U.S. 635, 638 (1987).


17
To evaluate a claim of qualified immunity, we  engage in a two-step analysis. First, we  determine whether the plaintiff's claim states a  violation of his constitutional rights. Then, we  determine whether those rights were clearly  established at the time the violation occurred.  See Wilson, 119 S.Ct. at 1697; Khuans v. School  Dist. 100, 123 F.3d 1010, 1013 (7th Cir. 1997).  If the rights were clearly established, the  official may be liable for monetary damages and  the suit proceeds to the next stage. If the  rights were not clearly established, then the  official is immune from suit and the claim is  dismissed. See Richardson v. McKnight, 521 U.S.  399, 403 (1997) ("[A] legal defense may well  involve 'the essence of the wrong,' while an  immunity frees one who enjoys it from a lawsuit  whether or not he acted wrongly."). Because the  doctrine of qualified immunity should not stand  as an impediment to the clarification and  evolution of a court's articulation of  constitutional principles, we evaluate the  constitutionality of the official's conduct even  though, in the end, he may not be held liable for  monetary damages flowing from that conduct. See  Wilson, 119 S.Ct. at 1697 ("Deciding the  constitutional question before addressing the  qualified immunity question . . . promotes  clarity in the legal standards for official  conduct, to the benefit of both the officers and  the general public."); County of Sacramento v.  Lewis, 118 S.Ct. 1708, 1714 n.5 (1998).


18
It is the plaintiff's burden to demonstrate the  existence of a clearly established constitutional  right. Kernats v. O'Sullivan, 35 F.3d 1171, 1176  (7th Cir. 1994). A clearly established right is  one where "[t]he contours of the right [are]  sufficiently clear that a reasonable official  would understand that what he is doing violates  that right." Anderson, 483 U.S. at 640; see  Wilson, 119 S.Ct. at 1700. To determine whether  a right is clearly established, we look first to  controlling Supreme Court precedent and our own  circuit decisions on the issue. Because there is  an almost infinite variety of factual scenarios  that may be brought into the courtroom, a  plaintiff need not point to cases that are  identical to the presently alleged constitutional  violation. However, "the contours of the right  must have been established so that the  unlawfulness of the defendant's conduct would  have been apparent in light of existing law."  Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430  (7th Cir. 1989).


19
In the absence of controlling precedent, we  broaden our survey to include all relevant  caselaw in order to determine "whether there was  such a clear trend in the caselaw that we can say  with fair assurance that the recognition of the  right by a controlling precedent was merely a  question of time." Id. at 431. A split among  courts regarding the constitutionality of conduct  analogous to the conduct in question is an  indication that the right was not clearly  established at the time of the alleged violation.  See Wilson, 119 S.Ct. at 1701 ("If judges thus  disagree on a constitutional question, it is  unfair to subject [the defendant] to money  damages for picking the losing side of the  controversy."). In some rare cases, where the  constitutional violation is patently obvious, the  plaintiff may not be required to present the  court with any analogous cases, as widespread  compliance with a clearly apparent law may have  prevented the issue from previously being  litigated. See Kernats, 35 F.3d at 1176.


20
The plaintiff Denius alleges that the defendant  director of a state-run and federally-funded  educational institution abused his position of  authority by requiring the plaintiff to sign the  Authorization as a condition of employment in  violation of his constitutional rights. In  response to these allegations, the defendant  Dunlap asserts qualified immunity as an  affirmative defense. It is unquestioned that  Dunlap, as the director of a public school, is  entitled to qualified immunity for the decisions  he makes in hiring and firing the employees under  his supervision. See Khuans, 123 F.3d at 1013  (holding that a school superintendent making the  decision not to renew the contract of a school  psychologist was "a government official  performing discretionary functions" who was  entitled to qualified immunity). Thus, even if we  find that Dunlap violated Denius's constitutional  rights by requiring him to sign the  Authorization, Dunlap is immune from suit for  damages under sec. 1983 if those rights were not  clearly established at the time in question.

2.  Pickering Balancing Test

21
It is clearly established that a public school  teacher cannot have his employment conditioned  upon his relinquishment of a constitutional right  unless the interest of the school "as an  employer, in promoting the efficiency of the  public services it performs through its  employees," outweighs the individual interests of  the teacher in asserting his constitutional  rights. Pickering v. Board of Educ. of Township  High Sch. Dist. 205, 391 U.S. 563, 568 (1968);  see Abood v. Detroit Bd. of Educ., 431 U.S. 209,  234 (1977); Mt. Healthy City Sch. Dist. Bd. of  Educ. v. Doyle, 429 U.S. 274, 283-84 (1977);  Shelton v. Tucker, 364 U.S. 479, 488 (1960). At  this stage of the proceedings, the defendant has  articulated no interest that the LCP has in  obtaining the information it was permitted to  gather through the Authorization. Dunlap stated  that he did not intend to use any additional  information beyond that which Denius had already  consented to release for the initial 1994  background check, and Dunlap did not present any  other justification for requiring the  information.2 Because Dunlap has articulated no  interest that is promoted by requiring Denius to  sign the Authorization, it is unnecessary for us  to determine at this time whether the interests  of the LCP as an employer outweigh the  constitutional rights of Denius.


22
Dunlap acknowledges that the only reason Denius  was dismissed from his teaching position was his  refusal to sign the Authorization.3 Therefore,  if a finding that Denius has a clearly  established constitutional right not to sign the  Authorization is made, then it follows that  conditioning his employment as a public school  teacher on the relinquishment of that right  without any justification is a violation of a  clearly established right for which Dunlap cannot  receive qualified immunity. See Keyishian v.  Board of Regents, 385 U.S. 589, 605-06 (1967)  ("[T]he theory that public employment which may  be denied altogether may be subjected to any  conditions, regardless of how unreasonable, has  been uniformly rejected.") (citations omitted).


23
We now examine each of Denius's constitutional  claims to determine: 1) whether a constitutional  right exists; and 2) whether that right was  clearly established at the time in question.

3.  Attorney-Client Privilege

24
The Authorization requires that Denius "give  [his] consent for full and complete disclosure of  . . . the records and recollections of attorneys  at law, or of other counsel, whether representing  [him] or another person in any case, either  criminal or civil, in which [he] presently [has]  or [has] had an interest." Denius argues that the  intent and effect of this section of the  Authorization is to require him to waive his  attorney-client privilege and allow the state  access to all information that would otherwise be  protected by this doctrine. Denius contends that  this compelled waiver violates his constitutional  rights under the First and Sixth Amendments as  applied to the states through the Fourteenth  Amendment. See, e.g., Gideon v. Wainwright, 372  U.S. 335 (1963); Edwards v. South Carolina, 372  U.S. 229 (1963).


25
Under the doctrine of attorney-client privilege,  confidential communications between a client and  an attorney for the purpose of obtaining legal  advice are privileged. A court cannot compel  revelation of these communications through  discovery or testimony in civil or criminal  matters. This doctrine is a common law privilege  that can be explicitly or implicitly waived by  the client and is subject to a number of  restrictions and exceptions. The privilege is  implicitly waived if the client communicates  information to his attorney without the intent  that that information remain confidential. See  generally Moore's Federal Practice 3d sec. 26.49;  Weinstein's Federal Evidence 2d ch. 503.


26
In this case, we agree that Denius has been  asked to waive his privilege of confidentiality  regarding the information he communicates to an  attorney as a condition of employment with the  LCP. If Denius were to sign the Authorization,  all previously protected communications with his  attorney would no longer be privileged.  Furthermore, the Authorization may jeopardize the  attorney-client privilege for all future  communications. Because these communications  would be made with the knowledge that Denius has  given consent for his attorney to transmit the  information to the LCD, they are no longer  confidential and, therefore, not protected by the  privilege. See Weinstein's Federal Evidence sec.  503.15(2); United States v. Lawless, 709 F.2d  485, 487 (7th Cir. 1983) ("When information is  transmitted to an attorney with the intent that  the information will be transmitted to a third  party . . . , such information is not  confidential.").4


27
We now consider whether this mandatory waiver  of the attorney-client privilege violates  Denius's constitutional rights. Denius contends  that the attorney-client privilege implicates his  right to counsel under the Sixth Amendment as  well as his rights of free speech, association  and petition under the First Amendment. We  address each of these arguments in turn.


28
a.  Sixth Amendment


29
The Authorization includes the release of  information related to all legal matters "either  civil or criminal." Where the Sixth Amendment  right to the effective assistance of counsel  attaches, this right includes the ability to  speak candidly and confidentially with counsel  free from unreasonable government interference.  See Adams v. Carlson, 488 F.2d 619, 630-31 (7th  Cir. 1973) (recognizing confidentiality in the  attorney-client relationship as an essential  component of the Sixth Amendment right to  effective assistance of counsel); cf. Weatherford  v. Bursey, 429 U.S. 545, 552 (1977) (recognizing  that state interference with confidential  attorney-client communications implicates a  defendant's Sixth Amendment right to effective  assistance of counsel and may in some  circumstances require the reversal of a  conviction). However, an individual enjoys no  protection provided by the Sixth Amendment until  the instigation of criminal proceedings against  him. See McNeil v. Wisconsin, 501 U.S. 171, 175  (1991); Hannah v. Larche, 363 U.S. 420, 440 n.16  (1960). As Denius has at no time been the subject  of a criminal prosecution, his Sixth Amendment  rights are not implicated.5


30
b.  First Amendment


31
Denius next contends that requiring him to sign  the Authorization and waive his attorney-client  privilege as a condition of employment violates  his First Amendment rights of speech, association  and petition.


32
The right to hire and consult an attorney is  protected by the First Amendment's guarantee of  freedom of speech, association and petition. See  DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir.  1990) ("The right to retain and consult an  attorney . . . implicates not only the Sixth  Amendment but also clearly established First  Amendment rights of association and free  speech."); Martin v. Lauer, 686 F.2d 24, 32 (D.C.  Cir. 1982). It has long been recognized that the  First Amendment prohibits the state from  interfering with collective action by individuals  to seek legal advice and retain legal counsel.  See United Transp. Union v. State Bar of Mich.,  401 U.S. 576, 585-86 (1971) ("[C]ollective  activity undertaken to obtain meaningful access  to the courts is a fundamental right within the  protection of the First Amendment."); United Mine  Workers of Am. v. Illinois State Bar Ass'n, 389  U.S. 217, 221-22 (1967) ("[T]he freedom of  speech, assembly, and petition guaranteed by the  First and Fourteenth Amendments gives petitioner  the right to hire attorneys on a salary basis to  assist its members in the assertion of their  legal rights."); see also Brotherhood of R.R.  Trainmen v. Virginia, 377 U.S. 1, 6 (1964); NAACP  v. Button, 371 U.S. 415, 429-30 (1963). Likewise,  the state cannot impede an individual's ability  to consult with counsel on legal matters. See  Bates v. State Bar of Ariz., 433 U.S. 350, 376  n.32 (1977) ("Underlying [the collective action  cases] was the Court's concern that the aggrieved  receive information regarding their legal rights  and the means of effectuating them. This concern  applies with at least as much force to aggrieved  individuals as it does to groups."); see also  Trainmen, 377 U.S. at 7 ("A State could not . .  . infringe in any way the right of individuals  and the public to be fairly represented in  lawsuits . . . ."). Furthermore, the right to  obtain legal advice does not depend on the  purpose for which the advice is sought. This  right applies equally to legal representation  intended to advocate a political or social  belief, see Button, 371 U.S. at 419-20, or to  recover damages in a personal injury suit, see  United Mine Workers, 389 U.S. at 223. See also  id. (stating that in earlier cases "we rejected  the contention . . . that the principles  announced in Button were applicable only to  litigation for political purposes"). In sum, the  First Amendment protects the right of an  individual or group to consult with an attorney  on any legal matter.


33
The ability to maintain confidentiality in  attorney-client communications is an important  component of the right to obtain legal advice.  "[T]he right to confer with counsel would be  hollow if those consulting counsel could not  speak freely about their legal problems." Martin,  686 F.2d at 32. The centrality of confidentiality  to the effective rendering of legal advice is  reflected in the long-standing common law  privilege for attorney-client communications. See  Swidler & Berlin v. United States, 524 U.S. 399,  403 (1998). This privilege not only protects the  interest of the client in receiving the best  legal advice but also "'promote[s] broader public  interests in the observance of law and the  administration of justice.'" Id. (quoting Upjohn  Co. v. United States, 449 U.S. 383, 389 (1981)).  Because the maintenance of confidentiality in  attorney-client communications is vital to the  ability of an attorney to effectively counsel her  client, interference with this confidentiality  impedes the client's First Amendment right to  obtain legal advice.


34
The First Amendment may be implicated where the  state compels an individual to speak. If by  compelling an individual to reveal information  that he would rather keep confidential the state  chills the individual's ability to engage in  protected speech, the state has infringed the  individual's First Amendment right in the  protected speech, unless it provides a sufficient  justification for the required disclosure. See  McIntyre v. Ohio Elections Comm., 514 U.S. 334,  341-42 (1994); NAACP v. Alabama ex rel.  Patterson, 357 U.S. 449, 462-63 (1958). The level  of justification required by the state will vary  depending on the nature of the speech involved.  See McIntyre, 514 U.S. at 347.


35
In this case, Denius alleges that the state is  compelling the revelation of information he would  prefer to keep confidential by requiring him to  waive his attorney-client privilege. He argues  that this compelled revelation of confidential  communications chills the protected speech  involved in his consultation with an attorney on  legal matters. At this stage of the proceedings,  Dunlap has offered no reason for requiring that  Denius waive his attorney-client privilege.  Therefore, we need not decide and do not address  the level of justification required for the state  to overcome an individual's right to maintain  confidentiality in his legal communications with  his attorney. We merely conclude that absent  appropriate justification the state cannot compel  the revelation of privileged attorney-client  communications. Therefore, if the LCP had no  basis for requiring Denius to reveal confidential  attorney-client communications, Dunlap violated  Denius's First Amendment rights when he refused  to renew Denius's contract solely because Denius  declined to waive his attorney-client privilege.


36
However, the parameters of an individual's First  Amendment right to confidential communications  with his attorney were not clearly defined before  this incident occurred. There is no existing  Supreme Court or Seventh Circuit precedent on  this issue, and we are only able to find two  cases from fellow circuit courts articulating  this right. See DeLoach v. Bevers, 922 F.2d 618,  620 (10th Cir. 1990); Martin v. Lauer, 686 F.2d  24 (D.C. Cir. 1982). These two cases do not  represent a trend in the law that would  inevitably lead to the result we announce here.  Similarly, the constitutional dimensions of the  attorney-client privilege are not so patently  obvious that no existing case law is required to  show the right is clearly established. Therefore,  we also hold that Dunlap is shielded by qualified  immunity for any possible violation of Denius's  First Amendment right to confidential  communications with his attorney, and we affirm  the district court's grant of summary judgment to  the defendant on this issue.

4.  Other disclosures

37
In addition to requiring that Denius waive his  attorney-client privilege, the Authorization also  permits the release of other confidential  information including all records pertaining to:  1) educational, 2) financial, 3)  military/veterans, 4) criminal, or 5) employment  matters.6 Again, the LCD proffers no  justification at this stage for requiring  disclosure of this broad range of information.  Denius contends that requiring him to authorize  these disclosures violates his right to privacy  in confidential information.


38
The "concept of ordered liberty" protected by  the Fourteenth Amendment's Due Process Clause has  been interpreted to include "the individual  interest in avoiding disclosure of personal  matters." Whalen v. Roe, 429 U.S. 589, 599-600  (1977); see also Nixon v. Administrator of  General Servs., 433 U.S. 425, 465 (1977)  (recognizing "a legitimate expectation of privacy  in [ ] personal communications"); Pesce v. J.  Sterling Morton High Sch., 830 F.2d 789, 795 (7th  Cir. 1987) ("The federal constitution does, of  course, protect certain rights of privacy  including a right of confidentiality in certain  types of information."). This Court has  recognized that "the federal right of  confidentiality might in some circumstances be  implicated when a state conditions continued  employment on the disclosure of private  information." Pesce, 830 F.2d at 797.


39
However, the scope and contours of this right  have not been defined in this Circuit. For  example, it is not clear whether the right of  confidentiality covers all confidential  information or only confidential information  relating to certain matters. In this Circuit, the  right clearly covers medical records and  communications. See Anderson v. Romero, 72 F.3d  518, 522 (7th Cir. 1995) (noting the recognition  of this right as early as 1992); Schaill v.  Tippecanoe County Sch. Corp., 864 F.2d 1309, 1322  n.19 (7th Cir. 1989) (recognizing "a substantial  privacy interest in the confidentiality of  medical information"). But, it is not clear  whether other confidential information, such as  that contained in financial records, also  receives similar protection under this right.  Furthermore, while it is apparent that some form  of balancing test would be used to determine when  this right of confidentiality has been violated,  that test has not been defined in this Circuit.  See Pesce, 830 F.2d at 797 n.5 (noting that other  courts have used either a "general balancing of  interests" or strict scrutiny when addressing  this right, and declining to define a test for  use in this Circuit); see also Fraternal Order of  Police v. City of Philadelphia, 812 F.2d 105, 110  (3d Cir. 1987) (noting that the majority of  circuits have adopted intermediate scrutiny for  required disclosures of confidential information  and that some circuits have employed a compelling  interest test where the intrusion was  particularly egregious); cf. Nixon, 433 U.S. at  465 (balancing interests); Whalen, 429 U.S. at  601-04 (same).7


40
Denius argues that it is clearly established  that the state could not require the release of  confidential information without at least some  interest to place in the balance and some  measures limiting the use of the information and  protecting it from further disclosure. Although  Denius alludes in his brief to the  Authorization's effect on his privacy rights in  a broad range of confidential information, he  only discusses with specificity his interest in  medical and financial information. Therefore, we  address his privacy argument with respect to  these two types of information alone. See Gagan  v. American Cablevision, Inc., 77 F.3d 951, 965  (7th Cir. 1996) (holding that failure to  adequately develop an argument on appeal  constitutes waiver).


41
a.  Medical Information


42
As discussed above, this Circuit has outlined a  clearly established "substantial" right in the  confidentiality of medical information that can  only be overcome by a sufficiently strong state  interest. See Anderson, 72 F.3d at 522.  Therefore, to the extent that the Authorization  provided for the release of medical records or  communications,8 Dunlap was on notice that this  type of information has constitutional protection  in this Circuit and that the state cannot require  its disclosure without a sufficient  countervailing interest. As Dunlap has provided  no interest at this stage in the proceedings that  would justify requiring Denius to supply this  information, we find he has not shown that he is  entitled to qualified immunity on this issue. See  Gustafson v. Jones, 117 F.3d 1015, 1021 (7th Cir.  1997) (recognizing that balancing tests "produce  a wide gray area between the clearly legal and  the clearly illegal . . . . This does not mean,  however, that legal certainty never exists when  the law demands the consideration of a number of  different factors."). We thus reverse the  district court's grant of summary judgment to the  defendant on this issue and remand for further  proceedings.


43
b.  Financial Information


44
While this Court has concluded that there is a  general federal constitutional right of  confidentiality, we have discussed this right  only in the context of confidential medical  information. See Anderson, 72 F.3d 518; Schaill,  864 F.2d at 1322 n.19; Pesce, 830 F.2d 789.  Denius now urges us to find that the right of  confidentiality applies to confidential financial  information.


45
Seven of our sister circuits have found that  the constitutional right of privacy in  confidential information covers some financial  disclosures. See Sheets v. Salt Lake County, 45  F.3d 1383, 1388 (10th Cir. 1995) (finding a  constitutionally protected privacy interest in  matters concerning "marriage, finances, and  business"); Doe v. City of New York, 15 F.3d 264,  267 (2d Cir. 1994) (recognizing a  constitutionally protected privacy interest in  financial information); Alexander v. Peffer, 993  F.2d 1348 (8th Cir. 1993) (recognizing a  constitutionally protected privacy interest in  "highly personal medical or financial  information"); Walls v. City of Petersburg, 895  F.2d 188, 194 (4th Cir. 1990) (same); Fraternal  Order of Police v. City of Philadelphia, 812 F.2d  105, 115 (3d Cir. 1987) (same); Plante v.  Gonzalez, 575 F.2d 1119, 1135 (5th Cir. 1978)  (recognizing a "substantial" privacy interest in  confidential financial information); see also  James v. City of Douglas, 941 F.2d 1539, 1543 n.7  (11th Cir. 1991) (recognizing Fifth Circuit  precedent in this area finding a right to privacy  in confidential financial information as  binding). The only circuit to explicitly disavow  such a right, and the right of confidentiality in  general, is the Sixth Circuit. See J.P. v.  DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981)  (finding that no right of confidentiality exists  under the federal constitution); Cushall v.  Sundquist, 193 F.3d 466, 481 (6th Cir. 1999)  (recognizing the continued vitality of the  DeSanti decision). However, we explicitly  recognized our disagreement with the Sixth  Circuit's approach in Anderson where we agreed  with the majority of circuits that Whalen and  Nixon delineate a federal right of  confidentiality. 72 F.3d at 522.9


46
The Supreme Court has discussed the existence  and extent of constitutional protection for  confidential information in terms of the type of  information involved and the reasonable  expectation that that information would remain  confidential. Nixon, 433 U.S. at 465; see also  Whalen, 429 U.S. at 604. Following this logic, we  held that medical information may be a form of  protected confidential information because of its  intimate and personal nature. See Anderson, 72  F.3d at 522; Pesce, 830 F.2d at 797. Our fellow  circuit courts have applied similar reasoning to  determine whether information may receive  protection under the confidentiality branch of  the right to privacy. See In re Crawford, 194  F.3d at 959; Doe, 15 F.3d at 267; Walls, 895 F.2d  at 192, 194; Westinghouse, 638 F.2d at 579;  Plante, 575 F.2d at 1134-35. Because confidential  financial information may implicate substantial  privacy concerns and impact other fundamental  rights, we agree with the overwhelming majority  of our sister circuits that some types of  financial information involve the degree and kind  of confidentiality that is entitled to a measure  of protection under the federal constitutional  right of privacy.


47
In this case, the plaintiff has identified no  specific financial information that he claims  deserves constitutional protection. However, the  Authorization provides for the release of a  virtually limitless range of confidential  financial information. Furthermore, the LCD has  provided no basis for requiring this information  and no explanation for how it would tailor the  gathering of the information to any need it might  proffer. Most importantly, the LCD has provided  no guarantee that the information obtained  pursuant to the Authorization would be kept  confidential and only used for a legitimate  government purpose. We conclude that this  sweeping disclosure requirement, lacking any  safeguards against misuse or further disclosure,  and supported by no justification, infringes  Denius's right of privacy in confidential  information.


48
That some forms of confidential financial  information may fall within the scope of the  right of privacy was not clear in this Circuit at  the time Dunlap made his decision not to renew  Denius's contract. While there was a trend among  the majority of circuits in this direction, the  conclusion was not unanimous. Therefore, we do  not find that the law in this area was so clearly  defined that a government official can be charged  with its knowledge. We conclude that Dunlap is  shielded by qualified immunity for requiring  Denius to disclose confidential financial  information as a condition of employment, and we  affirm the district court's grant of summary  judgment to the defendant on this issue.10

C.  Equitable Relief

49
Denius next argues that the district court  erred as a matter of law when it dismissed his  claims for equitable relief as barred by the  defendant's qualified immunity.

1.  Waiver

50
The defendant contends that Denius waived his  right to appeal this issue because the district  court's dismissal of Denius's claims for  equitable relief was an oversight and not a legal  judgment. The defendant asserts that Denius was  required to file a Rule 60(b) Motion for Relief  from Judgment calling the district court's  attention to this oversight and requesting its  correction. The defendant argues that by failing  to make a Rule 60(b) motion, Denius waived his  ability to raise this argument on appeal.


51
The defendant is correct that where a plaintiff  is seeking relief from judgment that is most  appropriately awarded by a trial court on a Rule  60 motion, such as where the plaintiff is  claiming oversight, mistake or clerical error,  the plaintiff may waive his right to present that  type of argument on appeal if he did not make the  appropriate Rule 60 motion below. See Chicago  Downs Ass'n, Inc. v. Chase, 944 F.2d 366, 370-71  (7th Cir. 1991) (finding that where plaintiff's  only argument on appeal was that the district  court's judgment was inequitable because of  attorney neglect, plaintiff waived this Rule  60(b)-type argument on appeal because he failed  to make the appropriate motion below); see also  Securities and Exchange Comm'n v. Mayhew, 121  F.3d 44, 53-54 (2d Cir. 1997). However, in this  case, Denius is not contending that the district  court overlooked his claim for declaratory and  injunctive relief or issued a mistaken judgment  for any of the reasons that would properly be  corrected by a Rule 60 motion. Rather, he claims  that the district court was fully aware of his  claims for both equitable and monetary relief but  erroneously concluded that qualified immunity was  a bar to claims in both law and equity.


52
We agree with Denius's interpretation of the  district court's ruling. This is not a case where  the district court completely overlooked  plaintiff's claims for equitable relief. The  district court clearly states that it is  disposing of Denius's claims for monetary and  equitable relief through its summary judgment  opinion. In addition, the district court did not  limit its discussion of qualified immunity solely  to Denius's claims for monetary relief but  applied that doctrine to all of Denius's claims.  Furthermore, oral argument before the trial court  pertaining to the motion for summary judgment  clearly indicates that the district court was  aware of, and took into consideration, Denius's  claims for equitable as well as monetary relief.  Denius appealed the district court's conclusion  of law on this matter directly to this Court, and  it was proper for him to do so. While he may have  filed a Rule 60(b) motion asking the district  court to reconsider this conclusion of law, he  was not required to do so, and he has not waived  any of his arguments related to this matter on  appeal. See Meinecke v. H & R Block of Houston,  66 F.3d 77, 82 n.2 (5th Cir. 1995) ("[I]t has  never been the case that a Rule 60(b) motion must  be filed as a prerequisite to appeal.").

2.  Denius's Equitable Claims

53
The doctrine of qualified immunity does not  apply to claims for equitable relief. See Burgess  v. Lowery, 201 F.3d 942, 943-44 (7th Cir. Jan. 18,  2000) ("There is no immunity from a suit for  [equitable] relief."); Eberhardt v. O'Malley, 17  F.3d 1023, 1028 (7th Cir. 1994) (finding  qualified immunity "irrelevant to the plaintiff's  request for an order that he be reinstated"); see  also Wood v. Strickland, 420 U.S. 308, 314 n.6  (1975) (stating that "immunity from damages does  not ordinarily bar equitable relief as well").  Therefore, we hold that the district court erred  in concluding that the defendants in this case  are shielded from all liability for their actions  under the qualified immunity doctrine. As  discussed above, Denius has a First Amendment  right in confidential communications with his  attorney and a Fourteenth Amendment right in  maintaining the confidentiality of some medical  and financial information. These rights are  subject to a balancing of interests to determine  whether the state has violated them. On the  present record, the defendant has presented no  justification for the burden he has placed on  these rights by conditioning Denius's employment  on relinquishing them, and he is not entitled to  prevail on summary judgment. Therefore, we  reverse the district court's grant of summary  judgment to the defendant on Denius's claims for  equitable relief and remand these claims for  further proceedings.

III.  CONCLUSION

54
For the reasons stated above, we Affirm the  district court's grant of summary judgment to the  defendants on plaintiff's claims for monetary  relief on the First Amendment attorney-client  privilege and Fourteenth Amendment financial  privacy claims; we Reverse the district court's  grant of summary judgment in favor of the  defendants on plaintiff's claim for monetary  relief on the Fourteenth Amendment medical  privacy claim as well as plaintiff's claims for  equitable relief; and we Remand this case to the  district court for further proceedings consistent  with this opinion.



Notes:


1
 Pursuant to Fed. R. App. Pro. 43(c)(2), we have  added Gary Sadler, the current Director of the  Lincoln Challenge Program, as a party to this  action which involves claims for prospective  injunctive relief as well as monetary damages.  However, for purposes of our discussion we will  refer to Dunlap as the defendant in this matter.


2
 The only justification revealed on the record  relates to the LCP's need for information  concerning the criminal background of its  teachers. Denius has not objected to providing  this information and, indeed, has signed a  consent form without any time limit authorizing  the disclosure of information regarding his  criminal history. The record does not reveal any  justification for requiring the additional  information in the 1996 Authorization that is the  subject of this appeal.


3
 It is irrelevant to our analysis that Dunlap did  not fire Denius but refused to renew his  contract, since Denius alleges that this decision  was made solely because he chose to exercise his  constitutional rights. See Mt. Healthy, 429 U.S.  at 283 (holding that a plaintiff whose contract  was not renewed "may nonetheless establish a  claim to reinstatement if the decision not to  rehire him was made by reason of his exercise of  constitutionally protected First Amendment  freedoms").


4
 The defendant contends that Denius does not have  standing to raise a constitutional claim  regarding the attorney-client privilege because  he was not involved in any past or present legal  matters at the time he was required to sign the  release. However, this fact is not determinative  of Denius's standing in this case. In Shelton v.  Tucker, 364 U.S. 479 (1960), and Keyishian v.  Board of Regents, 385 U.S. 589 (1967), the  Supreme Court held that requiring a teacher to  reveal his associational memberships as a  condition of public employment was an  unconstitutional burden on the teacher's exercise  of his First Amendment rights. The holdings in  these cases rest on the proposition that First  Amendment activity may be unreasonably chilled  when public employees are forced to choose  between revealing protected activities to their  employer or keeping their jobs. See Keyishian,  385 U.S. at 601-04; Shelton, 364 U.S. at 485-88;  cf. NAACP v. Alabama ex rel. Patterson, 357 U.S.  449, 462 (1958). As with the associational rights  in those cases, the First Amendment right in this  case--the right to seek counsel from an attorney-  -is arguably impaired by a requirement that  attorney-client communications be made available  to a public employer. We are particularly  concerned with a potential chilling effect in  this context because in certain cases it is only  through the aid of an attorney that an individual  is able to determine what his rights are and how  to give them effect. In neither Shelton nor  Keyishian were the plaintiff teachers required to  show that they were actually chilled from  associating with particular groups or persons  because of the challenged regulations. Rather,  the plaintiffs alleged that they refused to  comply with the regulations requiring disclosure  of associational membership and were fired  because of this refusal. Likewise, because Denius  alleges that he was required to chose between  signing a release that would potentially curtail  an important First Amendment activity and keeping  his job, we find that he has standing to assert  a First Amendment claim.


5
 The fact that the Authorization may affect future  communications does not alter this result with  respect to the Sixth Amendment. Contrary to the  First Amendment context, an individual cannot  assert a claim based on a future violation of his  Sixth Amendment rights. Those rights may only be  vindicated once they have attached. See McNeil,  501 U.S. at 176.


6
 To the extent that the Authorization duplicates  the release of criminal and educational records  that Denius signed when he first began working at  LCD, he does not contest its validity. It is only  the disclosure of information above and beyond  that necessary to perform such a routine  background check that is the subject of this  appeal.


7
 In Whalen, the Supreme Court balanced the  following factors: 1) the potential for public  disclosure of the information; 2) the extent to  which the private information is already  disclosed to other individuals or institutions;  3) the similarity of the disclosure in question  to disclosures that have already taken place; 4)  the potential deterrent effect on the exercise of  other constitutional liberties; and 5) the  state's interest in the information. 429 U.S. at  601-04.
In Nixon, the factors considered were: 1) the  extent of the intrusion into the individual's  privacy; 2) the individual's status as a public  figure; 3) the expectation of privacy in the  materials in question; 4) the importance of the  public interest; 5) the level of difficulty  involved in segregating private from non-private  materials; and 6) the measures taken to keep  private materials from being publicly  disseminated or revealed. 433 U.S. at 465.
A number of our sister circuits have adopted a  variation of the balancing test articulated by  the Third Circuit that includes: 1) "the type of  record requested"; 2) "the information it does or  might contain"; 3) "the potential for harm in any  subsequent nonconsensual disclosure"; 4) "the  injury from disclosure to the relationship in  which the record was generated"; 5) "the adequacy  of safeguards to prevent unauthorized  disclosure"; 6) "the degree of need for access";  7) "whether there is an express statutory  mandate, articulated public policy, or other  recognizable public interest militating toward  access." United States v. Westinghouse Elec.  Corp., 638 F.2d 570, 578 (3d Cir. 1980); see In  re Crawford, 194 F.3d 954, 959 (9th Cir. 1999).


8
 The present record does not reveal whether the  Authorization extends to medical records or  communications as Denius alleges. We leave this  factual determination to be resolved by the  district court.


9
 The District of Columbia Circuit has recently  expressed "grave doubts" as to the existence of  a federal right of confidentiality. See American  Fed'n of Gov't Employees v. Department of Hous.  & Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997).  However, that circuit recognized that it did not  "write on a blank slate" and that the circuit's  earlier decisions indicated the existence of such  a right. Id. at 791-92. Similarly, the First  Circuit has expressed concern regarding the  contours of this right but has declined to  address the issue. See Borucki v. Ryan, 827 F.2d  836 (1st Cir. 1987).


10
 The Authorization also includes a release of  liability to all persons giving information to  the LCP pursuant to the Authorization and to the  LCP for any liability incurred as a result of  gathering this information. Denius contends that  requiring him to release these potential legal  claims interferes with his right of access to the  courts and his property right in legal causes of  action.
We have searched the record presented on appeal  and can find no evidence that Denius raised  either of these claims before the district court.  We have repeatedly held that "[a]n issue not  presented in the court below cannot be raised for  the first time on appeal and form a basis for  reversal." Weeks v. Samsung Heavy Indus. Co.,  Ltd., 126 F.3d 926, 942 (7th Cir. 1997)  (citations omitted). Therefore, we consider these  issues waived and do not address them at this  time.


