ACT Private and Confidential Information - Can I Safely Publish?

[Ted Sherwood]

I have received two pieces of correspondence from an organisation to which I submitted a complaint about its behaviour. One is a letter that begins 'Private and Confidential', the other an email that begins 'Confidential'. Both contain information about the policies and practices of this organisation that would be useful to others in the same situation that I faced. I write a blog as a public service. What, if anything, can I safely publish under Australian law?

 

[Sophea]

Hi Ted,

You will have an obligation to keep information confidential where:

(1) the information has the necessary quality of confidence; and
(2) is imparted in circumstances which give rise to an obligation of confidence - i.e. there is an understanding that the information is confidential.
You will be in breach of obligations of confidentiality if you use or disclose confidential information.

Simply marking information private and confidential won't necessarily cut it. If the information is publicly available - for example if the policies and practices are on the company's website then you will not be bound by obligations of confidentiality. Perhaps you could query the company as to what particular aspects of the correspondence are P&C and whether it would apply to the practices and policies on their own.

 

[Sarah J]

Hi Ted,

I agree with Sophea that simply marking a letter as "confidential" does not make the information confidential. However, what were the circumstances surrounding you receiving this letter? Was it sent to you as part of a settlement deal? Or was it unsolicited information? Was it sent to you or received by you in mistake? Or was it addressed to you? Does the company know that you write a public service blog?

The test is: whether a reasonable person in your shoes would think the letter was confidential, taking into consideration the circumstances around why and how it came to that person's possession.

You may still be able to publish parts of the information, in your own words, on your blog as long as you do not identify your source and do not reveal any information that can identify your source or link back to your source.