Delusions of confidentiality

Raue was in the right, argues Alexi Polden.


Last week’s decision from the Supreme Court was not about Tom Raue’s choice to leak information to Honi Soit. It was a technical decision merely allowing the University of Sydney Union (USU) Board to hold a meeting to vote on whether they consider Raue guilty of “serious misconduct”. If that vote is conducted, and two thirds of the 13 directors vote against Raue, he will be expelled from the Board and the USU.

In deciding that motion, there are two elements that each Board Director should consider. First, was the information Raue leaked actually confidential? But second, even if the Board think it was confidential, it is important they remember they are not compelled to expel him. They can and should consider whether he was otherwise justified in his actions.

The small excerpt Raue leaked was not necessarily made confidential by virtue of being in a human resources report. To be confidential, information has to have some necessary “quality of confidence” about it. That bar is typically set quite high; for instance, the identity of a complainant in a sexual harassment claim would certainly be considered confidential.

What was the material here? Something said by a cop at a public protest.

That comment was given freely, and the officer could have repeated it to anyone, or, indeed, been overheard by anyone. Lee Devereux, the USU staff member who the officer was speaking to didn’t seem too concerned about confidentiality either, at least not concerned enough that it stopped her sharing the information with her husband. She was apparently unable to recall whether she had shared it with anyone else as well.

But beyond that, Raue asked Devereux whether he could release the information. She said she would prefer if he didn’t, but if he had to she would like her name to be kept out of his release, a condition he met.

Even if being included in the report did somehow render the information confidential, in certain circumstances confidentiality can still be trumped by the public interest. It may well be that the public interest in exposing the tension between the University’s publicly stated policy and the view apparently taken by police (namely that they were acting under University instruction) meets that test.

Merely being embarrassed by the release of information is not enough to make it confidential. If the Board claims it is, that signals a concerning shift for an organisation which claims it is on the path towards transparency.

In attempting to expel Raue, the message that the USU’s Executive is trying to send is that secrecy is always sacrosanct and that whistle-blowing is always punished.

Even if you believe that the information he released was confidential, I still do not think you can call Raue guilty of serious misconduct. It is important that our Board Directors stand up for what they believe in and the platforms they were elected on, even when it goes against the wishes of their Executive.

The very motion expelling Raue hints at that responsibility. The claimed grounds for his expulsion are a breach of his fiduciary duties. What does that actually mean?

The fiduciary duty that Raue allegedly breached was his duty to act in the interests of the USU as an institution. The thing is, the duties that bind the Board Directors are not that narrow or simple. Directors also have a fiduciary duty to act in the best interest of their members. Even if you buy that it was in the USU’s interest to keep the information secret, it is impossible to say that USU members did not benefit from knowing it. This begs the question, if the Board Directors do vote to expel Raue, whose interests do they think they are serving?