Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Danville Independent School District properly relied on KRS 61.878(1)(a) and KRS 61.878(1)(l) in denying Advocate-Messenger managing editor John A. Nelson's December 2, 1999, request for a copy of "any agreement reached between Danville Independent Schools or its representative and Margaret Dawson or her representative." For the reasons that follow, we find that the district's reliance on the cited exceptions was misplaced.
In a response dated December 7, 1999, the district's attorney, Winter R. Huff, advised Mr. Nelson that "the particular terms of agreement between counsel for Ms. Dawson and counsel for Superintendent [Bob] Rowland are, in our view, exempt from disclosure under the Kentucky open records laws." Ms. Huff explained:
First, . . . we do not believe that the Settlement Agreement is a Board record at all. Second, even if the Settlement Agreement were to otherwise be deemed a public record, nevertheless, we believe it would be exempt under KRS 61.878(1)(a), "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
The proceeding at issue was instituted pursuant to KRS 161.790. KRS 161.790(5) permits the hearing to be public or private at the discretion of the teacher. In this instance, the teacher elected a private proceeding. Consequently, we further believe that the records and agreements made in connection with the KRS 161.790 proceeding are likewise entitled to be maintained as private, as permitted pursuant to KRS 61.878(1)(l).
With respect to the privacy argument advanced on behalf of Ms. Dawson, Ms. Huff expressed concern for "Ms. Dawson's privacy as a former employee" of the school district, and emphasized the limited role of the Board of Education in resolving the matter. Unpersuaded by these arguments, the Advocate-Messenger initiated this open records appeal. We, too, find these arguments unpersuasive.
We reject the District's argument that the settlement agreement between Ms. Dawson and the Danville Independent School District is not a public record within the meaning of KRS 61.870(2). That term is expansively defined to include "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " However "limited" the Danville Independent School District's role in negotiating the terms of the settlement may have been, there can be no doubt that it is a party to the agreement, and that the agreement is "owned, used, in the possession of or retained by" the District. The District cannot evade its duties under the Open Records Law on this faulty pretext.
With respect to the privacy argument advanced on behalf of Ms. Dawson, a recent decision of this office speaks directly to the issue of disclosure of settlement agreements containing confidentiality clauses. In 98-ORD-24, a former employee of the Lexington-Fayette Urban County Government initiated a civil action against his former employer in which he alleged breach of contract and emotional distress resulting from the termination of his employment. Three years later, the parties settled the case, executing a settlement agreement which contained a covenant of nondisclosure prohibiting publication of the terms of the settlement, and requiring LFUCG to notify the former employee prior to responding to any request for access to the agreement by a third party. Shortly thereafter, The Lexington Herald-Leader submitted a request to inspect the agreement to LFUCG, which promptly notified its former employee. The employee expressed his desire to enforce the confidentiality clause, but took no action to assert his claim for nondisclosure.
At page 2 through 4 of 98-ORD-24, this office observed:
Resolution of this appeal turns on the proper implementation of the Kentucky Supreme Court's directives in Beckham v. Board of Education, Ky., 873 S.W.2d 575 (1994), and Lexington-Fayette Urban County Government v. Lexington Herald-Leader , above. In Beckham , the court held that a party affected by a public agency's decision to release records in response to an open records request has standing to contest the agency's decision in court. The court focused on the language of KRS 61.882(1) granting the circuit court of the county where the agency has its principal place of business or where the record is maintained jurisdiction to enforce the Open Records Act "by injunction or other appropriate order on application of any person." Declining the invitation to construe KRS 61.882(1) as a remedy for denial of access only, the court held that "the language used is without any such limitation" and that it would be anomalous to "disregard plain statutory language to conclude that an affected party who may possess a right to have documents excluded lacks standing to assert that right." Beckham at 578 and 579. "It would appear," the court noted, "that the General Assembly sought to promote disclosure by devising easy means toward that end, but left the door ajar for those who seek to prevent disclosure by granting them a litigation remedy to enforce the exclusions." Id. at 578. The Supreme Court concluded that the parties affected by disclosure, "having commenced litigation prior to release of the information sought, were entitled to be heard on their exclusion claims and entitled to appellate review of the merits in the Court of Appeals." Id. at 579.
In Lexington-Fayette Urban County Government , above, the court held that a privacy claim advanced by the public agency to support nondisclosure of settlement agreements containing confidentiality clauses was "simply insufficient to overcome the public's right of access to information of this type." Id. at 472. The court adopted the reasoning of the Court of Appeals in its analysis of the agreements:
Id. at 473. Drawing upon the line of cases construing the privacy exception, the court identified as its primary concern "the nature of the information which is the subject of the requested disclosure; whether it is the type of information about which the public would have little or no legitimate interest but which would be likely to cause serious personal embarrassment or humiliation. " Id. at 473. The court found no indication in the record that "significant privacy rights of the settling plaintiffs" were implicated.
Nevertheless, the court again left the "door ajar for those who seek to prevent disclosure. " Beckham at 578. Recognizing that in some cases there may be a legitimate concern for personal privacy "which would be sufficient under the Act," the court held:
Lexington-Fayette Urban County Government at 473.
98-ORD-24, pp. 2-4.
Focusing on the particular duties of a public agency in dealing with such a request, the Attorney General opined:
Clearly, Beckham establishes that a party affected by an agency's decision to release records has standing to contest the decision in court under the plain meaning of KRS 61.882(1). The court exhaustively documents the herculean efforts of the affected parties to prohibit the agency from releasing the records relating to them. In Lexington-Fayette Urban County Government , the court emphasized that under Beckham it is the affected party who, upon receipt of notice that a request has been made, must "take such further action as he deems appropriate. " It is not incumbent on the agency to "force [the affected party's] hand" or compel him "to articulate his reason for wanting the document to remain confidential."
It is instead incumbent on the public agency to responsibly discharge its duties under the Open Records Act. The "right of persons who might be affected by the release of governmental information to be heard on their privacy claim, " which was recognized in Beckham and Lexington-Fayette Urban County Government , is triggered when a public agency expresses its intention to disclose that information, and the affected parties commence litigation prior to disclosure. Lexington-Fayette Urban County Government at 472. It cannot be employed by a public agency to avoid its duties under KRS 61.880(1) to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of [a] request whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision." The problem for LFUCG is not that [its former employee] will not act to assert his privacy rights, but that it has abdicated its statutory duty. Having apparently formed no opinion of its own as to the propriety of release of the agreement, it relies on the existence of a confidentiality clause as the basis for inaction. An agency "may not circumvent the statutory requirements by agreeing to keep the terms of a settlement agreement confidential." Id. citing Anchorage School District v. Anchorage Daily News, 779 P2d 1191, 1193 (Alaska 1989).
What is abundantly clear is that "a confidentiality clause reached by agreement of the parties to litigation 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. " Id. The courts and this office have long recognized that the settlement of litigation with a governmental entity is a matter of legitimate public concern. Courier-Journal & Louisville Times Co. v. McDonald, Ky., 524 S.W.2d 633, 635 (1974) (holding that "the payment of city funds . . . is a matter with which the public has a substantial concern, against which little weight can be accorded to the desire of the plaintiff in that suit to keep secret the amount of money he received"); Lexington-Fayette Urban County Government , above at 472 (holding that the privacy claim advanced in support of nondisclosure of settlement agreements with a public agency "is simply insufficient to overcome the public's right of access to information of this type"); OAG 91-20; OAG 92-17; 94-ORD-72. The clear presumption is that such agreements must be made available for public inspection.
On this presumption, the settling party may wish to insert a confidentiality clause into the agreement. Upon receipt of notice that the agreement will be released, he must immediately act to assert his privacy claims in court. Since this privacy claim must be "sufficient under the Act," the settling party will seldom be called upon to enforce his own claim of exclusion. Id. at 473. If, after reviewing the settlement agreement, the public agency determines that disclosure raises legitimate concerns for personal privacy because the agreement contains information "which would be likely to cause serious personal embarrassment or humiliation, " it can and should deny access to it on the basis of KRS 61.878(1)(a). [Footnote omitted.] Absent these concerns, it can and should release the record.
98-ORD-24, pp. 5, 6; see also 99-ORD-39 (holding that Western Kentucky University was obligated to disclose terms of severance agreement entered into by University and the director of its extended campus who resigned as an alternative to facing disciplinary action).
As in 98-ORD-24, this office's review of the settlement agreement reveals little if anything in the agreement which would cause Ms. Dawson such serious personal embarrassment or humiliation that it would overcome the presumption of openness. Although brief references to the incident giving rise to her termination appear in the agreement, these details no doubt came to light in the jury trial which resulted in her acquittal, appear in the court record, and received media coverage. Ms. Dawson's desire "to keep secret the amount of money [she] received," or the terms of the settlement, can be accorded little weight. We therefore reject the Danville Independent School District's argument that KRS 61.878(1)(a), along with the confidentiality clause appearing in the settlement agreement, authorize its nondisclosure.
We also reject the District's argument that KRS 61.878(1)(l), operating in tandem with KRS 161.790, compel it to withhold the agreement. KRS 61.878(1)(l)authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." It is apparently the District's position that because KRS 161.790(5) permits a teacher to elect a private hearing on contract termination, and Ms. Dawson so elected, all records directly or tangentially related to the hearing may be withheld. This position finds no support in prior decisions of this office.
In 95-ORD-47, this office observed:
AlthoughKRS 161.790(5) 1 authorizes a private hearing at the discretion of the teacher charged with misconduct, neither that provision nor any other provision of KRS 161.790 permits an agency to withhold records relating to contract termination. Absent a specific confidentiality provision in Chapter 161, the Open Records Act governs. All nonexempt public records relating to the proceedings are subject to examination "even though such examination may cause an inconvenience or embarrassment to public officials or others." KRS 61.871. Although the legislature has recognized a teacher's right to a private hearing on contract termination, we reject the notion that the legislature also intended to shield that teacher from public scrutiny relative to the complaints lodged against him or her and the tribunal's final action. Any other interpretation of Chapter 161 is contrary to the statement found in KRS 61.871, to wit, "The basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest. . . ."
95-ORD-47, p. 5; see also 97-ORD-128 (reasoning of 95-ORD-47 extended to records generated in the course of administrator demotion proceedings conducted under KRS 161.765). In the cited open records decisions, the Attorney General held that the school districts improperly withheld records reflecting final agency action, any initiating documents, and any records adopted by the agency as the basis for its final action.
Any perceived tension between the discretionary right to a private hearing and the mandatory duty of records disclosure is absent here. Ms. Dawson's case did not proceed to a hearing, and any protections which KRS 161.790(5) arguably extends to the hearing does not extend to records generated outside the hearing . Under no conceivable set of facts can it reasonably be argued that KRS 161.790(5) shields from disclosure a settlement agreement entered into by a teacher and a school district. We therefore conclude that the Danville Independent School District's reliance on KRS 61.878(1)(l) and KRS 161.790 was misplaced, and that it must disclose the settlement agreement between it and Ms. Dawson in its entirety.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 161.790(5) provides:
The hearing [before the teacher tribunal] may be public or private at the discretion of the teacher. At the hearing, a hearing officer appointed by the chief state school officer shall preside with authority to rule on procedural matters, but the tribunal shall be the ultimate trier of fact.