This is novel twist on a well-established rule that settlement agreements in lawsuits against public agencies are public records even if the agreements contain "confidentiality clauses."

The attorney for the legislative staffer who went public with the settlement she reached with Representative Jeff Hoover and others — and who is now being sued by Hoover for breaching the confidentiality clause in the agreement — is arguing that the settlement agreement is a public, and not a private, record.

The rule that settlement agreements to which a public agency is a party are public records is actually two years older than the open records law. It dates from a 1974 case in which the courts recognized that the payment of public funds "is a matter with which the public has a substantial concern, against which little weight can be accorded to any desire of the plaintiff in that suit to keep secret the amount of money received."

In 1997, the Kentucky Supreme rejected a privacy claim asserted by Lexington Fayette Urban County Government on behalf of private litigants in settlement agreements with the Lexington-Fayette Urban County Government.

The Court echoed its earlier position. "There can be no viable contention that an agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it initiated is not a public record."

As in the 1974 case, the Court found that "a confidentiality clause is not entitled to protection."

In the Hoover-Espinosa settlement, the parties were a public official and a public employee. Public funds were not expended to compensate for the injury. Those funds, it has been reported, came from a political donor.

But the Legislative Research Commission was, according to Espinosa's attorney, a party to the settlement. This is the lynchpin of Espinosa's argument that the agreement is a public record.

Whether this is too attenuated to confer public record status on the settlement agreement, and defeat the defense Espinosa's attorney has raised In Hoover's lawsuit against Espinosa for revealing the settlement to the public, remains for the court to decide.