Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Water Company violated the Open Records Act in denying Debra Vaughn's July 12, 2004, request for copies of settlement agreements involving the Water Company and six named individuals on the basis of KRS 61.878(1)(a). For the reasons that follow, we find that the Water Company violated the Act in denying Ms. Vaughn's request.
By letter dated July 15, 2004, Barbara K. Dickens, Vice President, General Counsel, and Official Custodian of Records for the Water Company, advised Ms. Vaughn that the requested documents would not be released "because they are private, confidential and contain information of a personal nature [the disclosure of which] would constitute a clearly unwarranted invasion of personal privacy. " In response to Ms. Vaughn's request for reconsideration in light of OAG 01-6, recognizing the public's right of access to settlement agreements between party litigants and public agencies confidentiality clauses notwithstanding, Ms. Dickens observed:
[OAG 01-6] and its basis are distinguishable because the individuals involved in your requests were not "party litigants" who entered into the agreements to settle lawsuits. They had not filed litigation. Clearly, once a person files a public lawsuit, their reasonable expectation of privacy is diminished. The individuals you reference made no such filing, and therefore, the privacy interest is significantly greater. Consequently, the documents you request are exempt from disclosure under the Act, pursuant to KRS 61.878(1)(a), as they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Respectfully, we disagree.
As recently as February, 2004, the Attorney General reaffirmed the well established principle that "[i]f [a public agency] employee was terminated by [the public agency] , voluntarily resigned from his employment with [the public agency] , or entered into a settlement/ severance agreement with [the public agency] , thereby resolving his employment status, [the requester] is entitled to inspect and receive copies of any records in [the agency's] custody which memorialize these acts." 04-ORD-031, citing 00-ORD-104, p. 10 and OAG 81-345; 93-ORD-117; 95-ORD-47; 99-ORD-164; 00-ORD-5; 02-ORD-140. In the same decision, we reaffirmed the principle that "[t]he presence of a confidentiality clause in such an agreement does not alter our analysis inasmuch as such a clause 'is not, in general, entitled to protection.'" Lexington-Fayette Urban County Government v. Lexington Herald-Leader, Ky., 941 S.W.2d 469, 473 (1997) cited in 04-ORD-031, p. 9; also citing 98-ORD-24; 99-ORD-39; 00-ORD-5.
These decisions are premised on the notion that:
In balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that the settlement of litigation [or, in the present appeal, threatened litigation] between [a former public employee] and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize.
Id. Contrary to the Water Company's assertions, the fact that these employee disputes were resolved without recourse to the courts militates in favor of disclosure. Unless these agreements are disclosed, the public is foreclosed from monitoring "the payment of city funds . . . a matter with which the public has a substantial concern, [and] against which little weight can be accorded to any desire . . . to keep secret the amount of money . . . [paid and] received." Id. at 471, citing Courier-Journal and Louisville Times Co. v. McDonald, Ky., 524 S.W.2d 633, 635 (1974); accord, OAG 90-30 ("Amounts paid from public coffers are perhaps uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies"); 96-ORD-50 ("Where public funds go, the public's interest follows").
In Lexington-Fayette Urban County Government v. Lexington Herald-Leader, above, the Kentucky Supreme Court held that the privacy claim asserted on behalf of the recipients of settlements was insufficient to overcome the public's right of access to the settlement agreements themselves, and that a confidentiality clause appearing in the settlement could not "create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act. " Id. at 472. LFUCG had released a computer print-out showing payments made in settlement of claims against the police department, but denied access to the settlement agreements on the basis of confidentiality clauses contained therein and the privacy exception. Thus, "information as to when and in compensation for what injuries such sums were paid was withheld." Id. at 470. The court concluded that the public's interest in this type of information was superior to the privacy claim asserted, quoting extensively from a case from another jurisdiction:
We recognize the important public policy served by those measures which encourage settlement. . . . We recognize also that some litigants are unwilling to settle unless the terms of settlement remain confidential, and that a municipality's inability to assure confidentiality may, therefore, adversely affect its ability to negotiate a settlement. Nevertheless, the specific statutory provisions upon which the Daily News relies reflect a policy determination favoring disclosure of public records over the general policy of encouraging settlement. 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 this type of information than that it remain confidential. Thus we hold that public agency may not circumvent the statutory requirements by agreeing to keep the terms of a settlement agreement confidential.
Anchorage School District v. Anchorage Daily News, 779 P.2d 1191, 1193 (Alaska 1989) cited in LFUCG v. Lexington Herald-Leader at 472; accord, 98-ORD-24; 00-ORD-5; 00-ORD-104; 00-ORD-207; 02-ORD-140; 04-ORD-031. After examining the disputed settlement agreements, the Court determined that no significant privacy rights of the recipients were implicated, and that any reference to privacy in the agreements "was clearly for the benefit of the government and not the other parties." Id. at 473. 1
With all due respect to the Louisville Water Company, the same is true in the instant appeal. Pursuant to KRS 61.880(2)(c), this office requested and obtained copies of the disputed records to facilitate our review of the question on appeal. Although we cannot disclose the contents of these records, we can, in general, characterize them as settlement agreements consisting largely of boilerplate language with limited reference to the causative factors from which the employment disputes arose and describing, in only the broadest terms, the circumstances of the employees' departure. Although one of the settlement agreements contains, among other allegations, vague allegations of sexual harassment, we cannot assign to this recipient of public monies a privacy interest superior to the public's interest in disclosure of how much, when, and in compensation for what alleged injuries such monies were paid. In all other respects, we find that no significant privacy rights of the recipients are implicated, and that the confidentiality clauses contained in the agreements benefited the Louisville Water Company alone. For this reason, and notwithstanding the fact that legal action had not been formally instituted by these recipients, we find that Lexington-Fayette Urban County Government v. Lexington Herald-Leader, above, is controlling and that the Louisville Water Company improperly denied Ms. Vaughn's request.
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.
Debra L. Vaughn743 East Broadway, # 301Louisville, KY 40202
Barbara K. DickensVice PresidentGeneral CounselOfficial Custodian of RecordsLouisville Water Company550 South Third StreetLouisville, KY 40202
Footnotes
Footnotes
1 The Court did, however, "recognize that in some cases there may be a legitimate concern forpersonal privacy which would be sufficient under the Act." Id. at 473. So, too, this office has recognized that:
Pursuant to KRS 61.878(4), a public agency may exercise its right to mask excepted material of a purely personal nature, such as information relating to personal illness or loss, from nonexcepted material in records documenting voluntary or involuntary separation from public employment before making the nonexcepted material available for examination. 94-ORD-108; 96-ORD-86; 99-ORD-39. It is however, incumbent on the agency to explain the statutory basis for the partial nondisclosure of the otherwise open records.
04-ORD-031, note 6.
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