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Photo of document captioned “Nondisclosure Agreement”

Nondisclosure agreements are in the news in the latest round of questions concerning the Greenberg administration’s commitment to transparency. 

Check out this article from Courier Journal:

'Empty rhetoric': NAACP scoffs at Greenberg's vow to be transparent in police chief search…

Following Courier Journal reports that members of the committee created by Louisville Mayor Craig Greenberg to interview police chief candidates were required to sign non-disclosure agreements, Raoul Cunningham, president of the Louisville NAACP, declared that "Greenberg's credibility is on the line with this decision, which may be the most important one he makes during his administration.”

Greenberg’s pre-election pledges on transparency are, according to the NAACP, “sounding more and more like empty rhetoric”

“Confidentiality agreements,” The Los Angeles Times writes, “have become a ubiquitous legal tool for purposes both controversial and benign, such as protecting trade secrets or confidential financial information.”…;

“Nondisclosure clauses in employment contracts and severance agreements prevent employees or former employees from badmouthing their bosses. Generally, as part of a private settlement, one party agrees to drop potential or unresolved legal action in exchange for a payment — and their silence.”

U of L pays $346K settlement…

These observations echo the sentiments of  the Kentucky attorney whose name is synonymous with open government, Jon Fleischaker. 

Commenting in 2021 on Western Kentucky University's NDA requirement for members of its Names and Symbols Task Force -- an advisory committee charged with reviewing and recommending name changes for campus buildings with ties to slavery and segregation -- Fleischaker noted that nondisclosure agreements are useful in protecting intellectual property, trade secrets and other sensitive information. But, he maintained, NDAs have "no place" in public agency advisory committees charged with issues of public importance. 

“The public has a right to know how decisions are being made,” Fleischaker said.…

Fleischaker's partner at Louisville's Kaplan Johnson Abate & Bird, Michael Abate, amplified on these  statements, "You can’t just make someone sign an NDA and take something that is otherwise public business or public record and put it behind a wall of secrecy.”

The Greenberg administration's clumsy attempt to secure committee members’ silence through NDA’s mirrors past attempts that were embarrassing — when revealed — and likely unenforceable.

For decades, the Kentucky Attorney General has recognized that “a public agency cannot nullify the mandatory provisions of the Open Records Law by a promise of confidentiality which is not authorized by KRS 61.870 to 61.884.”

In other words, a public agency cannot bargain away the public’s right to know. The agency can only “promise confidentiality as far as the exemptions permit.”

Kentucky’s courts have weighed in on this issue as well.  In Central Kentucky News-Journal v. George, the Kentucky Supreme Court rejected the argument that “a confidentiality agreement may impute, per se, a public record with a privacy claim superior to that of the public’s right of access. 

The Court declared that “the people of this state, through their elected representatives, have stated in the clearest of terms that it is more important that they have access to . . .  information than that it remain confidential.”

The open records law recognizes a need for confidentiality in exemptions approved by Kentucky lawmakers and codified at KRS 61.878(1)(a) through (s).

The same is true of discussions of public business and the 14 open meetings exemptions.

It is these exemptions — and not legally unsupportable promises of confidentiality, confidentiality clauses, or nondisclosure agreements — that govern access to records and establish the breadth of the public's right to know.

Public agencies have no authority to offer assurances of confidentiality, insert confidentiality clauses, and/or demand nondisclosure agreements. Unless backed by an exemption to the open records or open meetings laws, these actions can no more be enforced than stamping a nonexempt public record, or designating public business, “CONFIDENTIAL,”“SECRET,” or “NOT TO BE DISCLOSED” and expecting that stamp or designation to have binding legal effect.


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