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The Public Access Counselor recently released a binding opinion holding that settlement agreements entered into by units of local government that contain confidentiality or non-disclosure provisions are subject to FOIA, despite the confidentiality and/or non-disclosure provisions.  Ultimately, the PAC ruled that units of local government are required to turn over settlement agreements into which they enter.  However, the units of local government can still redact information in accordance with the exceptions found in Section 7 of the Act.

In the May 9, 2014 opinion, the PAC reviewed an appeal filed by a newspaper which had sought “all of the settlement agreements involving St. Clair County from Jan. 1, 2013 to the present.”  In response, St. Clair provided certain settlement agreements, but withheld an undisclosed number of agreements because the agreements contained confidentiality provisions and also contained “personal information” which the County believed to be exempt under Section 7(1)(c).

The PAC found that settlement agreements were clearly public records under FOIA pursuant to Section 2.20, which states “all settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public provided that information exempt from disclosure under section 7 of FOIA may be redacted.”  In analyzing the County’s first argument against disclosure (confidentiality provisions within the agreement), the PAC found these provisions directly violated FOIA and as such they contravened public policy and were unenforceable.

The County’s next argument was premised upon the “personal privacy” exception of Section 7(1)(c) which allows for the withholding of documents (or redaction) where “the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.”  Pursuant to the PAC’s in-camera review of the withheld documents, the PAC found that the withheld documents “do not include references to the specific allegations underlying the complaints that led to the settlement, the disclosure of which could potentially be embarrassing to the complainants.”

Based on the PAC’s analysis, the County was ordered to comply with the newspaper’s request by disclosing the requested settlement agreements immediately, subject to any permissible redaction of private information under Section 7(1)(b) of FOIA.

Given this ruling, units of local government need to be aware that the insertion of confidentiality or non-disclosure clauses in settlement agreements will not alone suffice to exempt an agreement from an FOIA request.


Timothy J. Clifton

Author: Timothy J. Clifton