How is a confidential relationship created? Does one person have the authority to establish confidentiality by fiat? What about the request of the leader/moderator of a group—does that, by itself, establish confidentiality? Does remaining in a group whose originator desires confidentiality equate to tacit approval of that imposed confidentiality?

It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.
—variously attributed to Mark Twain, Will Rodgers, etc.

Much ink has been spilt—or, perhaps, many keys have been struck—over the recent release of emails from the National Partnership going back almost a decade. In usual internet fashion, there has been as much clutching at pearls as there has been gentle (or not so gentle) nudges to move along because there is nothing here to see. I suppose with these emails having been leaked, anyone curious is able to decide for themselves.

My concern in this particular article is not so much if the emails contain nefarious plots, but rather the oft repeated rejoinder that these emails are confidential, and that the real nefarious deed was their illicit release to the public. This is not a small accusation—keeping confidence is a serious matter.

It is not very far into the emails that a header is added indicating the desire of the moderator of the email group that all those who receive the email keep it confidential. Not long after that, the moderator emails the group in response to a leak of emails to a presbyter outside the group. In that email, he declares his understanding of the confidential nature of the group. In particular, he asserts that confidentiality exists because of the private (i.e., non-public) nature of the conversation the emails contain.

This assertion (both specifically in that particular response and more generally as the claim is being bandied about) raises a number of questions. How is a confidential relationship created? Does one person have the authority to establish confidentiality by fiat? What about the request of the leader/moderator of a group—does that, by itself, establish confidentiality? If the leader of a group indicates that it was his intention for the group to have a layer of confidentiality, does that declared intention, by itself, establish confidentiality? Would that confidentiality be retroactive according to the originator’s desire, or would it only establish confidentiality on an ongoing basis? What if members of that thing remain after the leader has indicated his intention? Does remaining in a group whose originator desires confidentiality equate to tacit approval of that imposed confidentiality?

Much in line with caveat emptor, I would say “let the one who seeks to establish confidentiality beware.” Confidentiality requires the consent of both—indeed, all—parties. Without that consent, statements of confidentiality are both hollow and unsupported—regardless of what statements are made in the actual emails.

It does not appear that the apparent initiator and the primary communicator did have consent from all parties that this was, in fact, a confidential group. Take the repeated reminders of the authors desire for confidentiality. If membership in the email group was conditioned upon confidentiality—that is, if a prospective member had to explicitly agree to confidentiality to be part of the group—then the emails would not indicate the authors desire for the group to be confidential. Rather, the emails would remind the members of what they had agreed to in joining the group.

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