50.
confidential, the note will ordinarily be a personal communication between the Judge and the Chief Justice or Chief Judge. By contrast, if a Judge of a federal court sends a memorandum to the Chief Justice or Chief Judge notifying his or her intended absence from the country with the evident intention of providing formal notice, the memorandum will ordinarily be an official record of the court.
139 Similarly, if a Minister of State sends a personal note to another Minister concerning upcoming Cabinet business, but with the intention, as objectively discerned, that the note be and remain confidential, the note will be a personal communication between the Ministers, notwithstanding that it concerns Cabinet business. By contrast, if a Minister sends a memorandum to another Minister detailing the progress of a change in departmental functions with the intention, as objectively discerned, that it be kept as an official record of the recipient Minister's Department, the memorandum will be such a record.
140 Conceivably, personal communications sent and received on an express or tacit understanding that they be and remain confidential could become official records of an organ of government if the sender or recipient were to deal with them in a manner that objectively bespeaks an intention so to convert their character. But whether the actions of the sender or recipient would have that effect would need to be assessed in light of all the circumstances of the case, in particular the likelihood that each person's initial reasons for desiring confidentiality, and interest in not disappointing the confidence reposed by the other, will continue.
141 More particularly, where an understanding of confidentiality exists, the act of the sender or the recipient in storing his or her copy in official facilities might well indicate no more than the choice of an available and convenient means of keeping the communication secure and confidential. And delivery of the copy to another person engaged in official work for the purpose of such storage might well indicate no more than a personal reliance on the diligence and fidelity of the latter as agent. Furthermore, an observation to that agent or another that the copy should one day be released in the public interest might well indicate no more than an intention to part with lawful possession at some later time and on terms consistent with the understanding between sender and recipient.
142 So, in the case of the personal communication between Senators or Members of the House of Representatives postulated above, the fact that the recipient placed the note in a safe in his or her parliamentary office could hardly be regarded as enough to infer an intention to make the note an official record of the Senate or the House of Representatives. Likewise, in the case of the personal communication between a Judge of a federal court and the Chief Justice or Chief Judge, one plainly could not infer an intention to make the communication an official record of the court merely from the fact that the Chief Justice or Chief Judge requested his or her associate to file a photocopy in a filing facility provided by the court. If those were the only facts in either case, the logical inference would
