Does including a confidentiality notice at the end of a message shield the message from disclosure under the public records law?
Answer: The short answer is not necessarily. Confidentiality notices, are common, especially in the legal profession. Here is a common example:
CONFIDENTIALITY NOTICE: This message and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. This information is only for the use of the individual or entity to which it was intended. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this message and any accompanying documents is strictly prohibited. If you have received this message in error, please contact the sender immediately and delete the message. Thank you.
Many businesses, including lawyers and law firms include such notices as standard boilerplate at the end of their emails, fax cover sheets, and other communications. Many correspondences, notably in the legal profession, are confidential or privileged attorney-client communications. As a result, it is necessary to prevent the unauthorized or accidental transmission of a message to an unintended recipient and to avoid a claim that confidentiality or privilege has been waived.
Confidential or privileged attorney-client communications may be protected from disclosure under the public records law. However, just because a notice is included in a message does not necessarily mean that the message is confidential or privileged communication, nor does it shield it from public disclosure. No one, whether it is an individual, business, or law firm, can unilaterally exempt records from disclosure under the public records law just as one cannot nullify the public’s right of access through contract or private agreement. The content of the message determines whether the message is a record subject to disclosure under the public records law.
The public records law does not prohibit the inclusion of confidentiality notices in messages. In fact they can be useful. However, government employees should take great care when including such notices that they not be misunderstood as necessarily protecting the message from public disclosure.