Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by the Georgetown News Graphic in connection with the newspaper's attempts to secure copies of documents from the Housing Authority of Georgetown.
We have not been furnished with a copy of the newspaper's letter of request for access to documents but, apparently, Ms. Kristi W. Lopez, the editor of the newspaper, made a written request, dated May 2, 1994, seeking access to the settlement agreement entered into between the Housing Authority and its former Executive Director, Ms. Betty Gillispie.
In a letter to Ms. Lopez, dated May 5, 1994, Charles M. Perkins, Esq., advised that the requested documents would not be made available for inspection. He cited the privacy exception to public inspection, KRS 61.878(1)(a), in support of the denial. Mr. Perkins stated that the agreement contained mutual benefits and obligations and a provision that the nature and details of potential claims and the amount and character of the consideration shall be confidential.
Ms. Lopez submitted a letter of appeal to this office, which was received May 16, 1994, seeking a decision relative to the Housing Authority's denial of her request for access to the documents pertaining to a settlement or "resignation package" between Ms. Gillispie and the Housing Authority."
Even before the enactment of the Kentucky Open Records Act (KRS 61.870 to KRS 61.884) in 1976, the courts had concluded that the terms of a settlement entered into by a public agency could not be kept secret. In Courier Journal v. McDonald, Ky., 524 S.W.2d 633, 635 (1974), the court said in part:
Certainly the payment of city funds in settlement of a suit against the city and some of its officers, based on negligence or misconduct in the performance of duty, 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 he received.
Since the enactment of the Open Records Act this office, in its opinions and decisions, has consistently concluded that the terms and provisions of settlements, specifically the financial expenditures of governmental agencies involved in such settlements, are subject to public disclosure. See, for example, OAG 78-35, OAG 88-43, and OAG 90-36.
In OAG 91-20, copy enclosed, at page three, we said in part that the Open Records Act must be strictly construed in favor of disclosure. The understanding of the parties as to the confidentiality of the terms of the settlement cannot subvert the provisions of the Open Records Act and is not binding on the courts. In addition, we concluded at page three of OAG 91-20 as follows:
Balancing the privacy interests of the parties to the settlement against the public's right of access to a written out-of-court settlement where a public agency is a party to that settlement and measured by the standards of a reasonable man, we are of the opinion that under the facts presented, the public's right of disclosure outweighs the privacy interests which might be identified.
Finally, in 92-ORD-1374, copy enclosed, at page three, we noted that the Attorney General has consistently recognized that settlement agreements entered into by public agencies are subject to full disclosure. The public has a legitimate interest in knowing how a civil action involving a public agency is settled.
It is, therefore, the decision of the Attorney General that the Housing Authority of Georgetown improperly withheld from public inspection the documents pertaining to the settlement agreement entered into between the Housing Authority and its former executive director. Those documents should immediately be made available to the requesting newspaper.
The Housing Authority of Georgetown may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed in the circuit court pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.