UPDATE: Politico announces that Presidential candidate Pete Buttigieg's former employer, management consulting firm McKinsey and Co., has waived the confidentiality agreement that prevented Buttigieg from identifying his former corporate clients. He will release the clients' identities.

Confidentiality agreements executed by public agencies are rarely waived.

https://www.politico.com/news/2019/12/09/buttigieg-warren-transparency-…

The tension that exists when the public's right to know clashes with the purported need for confidentiality.

Here, a binding contractual agreement between a private employer and employee, but what about the problems that arise when public agencies offer assurances of confidentiality in spite of their obligations under Kentucky's open records law?

In an early opinion, the Kentucky Attorney General recognized that "a public agency cannot abrogate 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 by agreeing to keep public information private. It can only "promise confidentiality as far as the permissive exemptions permit."

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," concluding that such an agreement "cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act."

https://caselaw.findlaw.com/ky-supreme-court/1522952.html

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 legitimate need for confidentiality in sixteen exemptions approved by Kentucky lawmakers and found at KRS 61.878(1)(a) through (p). From the exemptions "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48230

It is these exemptions, and not promises of confidentiality, confidentiality agreements or nondisclosure agreements that are not grounded in these exemptions, that govern access to records in the custody of a public agency.

KRS 61.878(1)(a), for example, protects records implicating an individual's privacy rights when those rights are superior to the public's right to know. KRS 61.878(1)(c)(1) protects records confidentially disclosed to a public agency that are generally recognized as confidential or proprietary if open disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed the records. KRS 61.878(1)(k) and (l) protect records made confidential by separate state or federal law. And so forth.

Public agencies that offer assurances of confidentiality, or enter into NDAs that are not grounded in these and the remaining statutory exemptions, do so at their peril, inviting open records disputes and costly litigation.