Publishing classified information
Q: I have an email from a hospital system CEO sent to roughly 7,000 employees, actually every employee of the hospitals. We want to print aspects of the letter in which he bad-mouths a union. Question: Does the legal disclaimer at the bottom of the email mean anything? It says basically that the email is intended only for the recipient and cannot be used for any other reason. My first impression is that the letter is inherently public because it\’s been sent to so many people. Do these common disclaimers hold any water?
A: Although we can’t provide definitive advice with respect to the particular situation you describe below, you might find a line of cases regarding the use of “confidential” sources acquired by the media of interest. In Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 515-22 (1986), the court rejected a claim against a newspaper that had reported the confidential fact that a judicial commission had found the plaintiff unqualified for judicial appointment. Similarly, with respect to government action against the publication of confidential information, the U.S. Supreme Court in 1989 held that in spite of a state statute requiring the government to keep the names of sexual offense victims private, it was not unlawful for a newspaper to receive (through an erroneously released police report) and publish the name of a sexual assault victim. Florida Star v. B.J.F., 491 U.S. 524 (1989). The court did say, however, that “[t]o the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition.” Id.at 534.
Although Nicholson and other cases suggest that the media’s use of “leaked” and other documents intended to be confidential will generally be protected, it is nevertheless conceivable that the hospital system or individuals involved could state some sort of legitimate cause of action based on unauthorized acquisition and dissemination of the e-mail, depending on the particular facts of the situation.