Attorney General Finds Employees Do Not Have a Privacy Interest in Settlement Agreements

By August 8, 2015 Attorneys, News No Comments

The Attorney General has found that a settlement of a lawsuit concerning an employee’s discharge was subject to the Freedom of Information Act.

The City of Markham received a FOIA request from a local attorney regarding a settlement agreement between the City and employee relating to the discharge of the employee from the City’s Police Department. The City denied the attorney’s FOIA request citing the confidentiality clause within the settlement agreement, the employee’s personal privacy, and the request of the employee who received the settlement. The attorney appealed the denial to the Attorney General.

In Public Access Opinion 15-004, the Attorney General found that the confidentiality clause within the agreement was directed only to the employee and not the City. However, the Attorney General stated that even if the confidentiality clause applied to the City it would have violated FOIA, and the agreement (at least in part) would be unenforceable. FOIA Section 2.20 specifically provides that settlement agreements are public records subject to inspection and copying.  Thus, such confidentiality provisions in settlement agreements are unenforceable.

The Attorney General also addressed the City’s privacy interest argument and found that the employee had no recognizable privacy interest in the document. The Attorney General cited two reasons why the privacy interest did not exist. First, the Attorney General stated that the settlement agreement, which dealt with the employee’s discharge, had to do with the public duties of public employees. Public employees cannot expect to have a privacy interest in information relating to their public duties.

Second, the Attorney General found that the general public has a great interest in any records of obligation, receipt and use of public funds; and that interest trumps any potential privacy interest the employee may have had. The Attorney General concluded that the City had improperly denied the FOIA request.

Settlement agreements raise a host of confidentiality issues which school administrators and boards must consider. Contact Steve Richart with your FOIA inquiries.

Sign up for our monthly Extra Mile newsletter. We go the extra mile so you don't have to. Subscribe