Can a Delaware town refuse to release a lawsuit settlement agreement because the parties privately agreed to keep it confidential?

Official title

04-IB11 Re: Freedom of Information Act Complaint Against Town of Fenwick Island

Plain-English summary

A resident asked the Town of Fenwick Island for a copy of the settlement agreement that resolved a lawsuit between the town and its former police chief. The town argued the resident hadn't actually made or been denied a request, and separately that the settlement's terms had been "sealed by mutual agreement of the parties," releasable only if a court ordered it.

The AG found both defenses failed. By the time the AG was investigating, two other citizens had also asked for and been denied the same records, so any question about whether this particular resident had standing to complain was moot. On the sealing argument, the AG checked and found the settlement had never actually been filed under a court-approved protective order in the federal case, meaning no court order was needed to make it public. And even if the parties had privately agreed to confidentiality, the AG reaffirmed its earlier position that a public body cannot make an enforceable promise to keep public records secret. The town was ordered to make the settlement agreement, along with any checks issued to the plaintiff or his attorney, available to everyone who had asked.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

If a lawsuit against a Delaware town settles with a confidentiality clause, does that clause keep the settlement secret from the public?

No, according to this opinion. The AG found that a public body cannot enter into an enforceable promise of confidentiality regarding public records, so a private confidentiality agreement between the parties cannot override FOIA's disclosure requirements.

Does a settlement agreement need a court order to become public if the parties called it "sealed"?

Not automatically, according to this opinion. The AG checked whether the agreement had actually been filed under a court-approved protective order and found it had not, meaning no court order was required before the town could release it.

If one citizen's records request gets denied, can other citizens who make the same request separately strengthen the case that the records should be public?

Yes, in effect, based on this opinion. The AG noted that once other citizens also requested and were denied the same settlement records, any question about the original requester's standing became moot, since the underlying public records issue applied regardless of who was asking.

Background and statutory framework

This opinion applies the AG's established position, first articulated in Att'y Gen. Op. 02-IB24 and grounded in Ohio's State ex rel. Findlay Publishing Co. v. Hancock County Board of Commissioners, that a public body cannot make an enforceable promise of confidentiality regarding what would otherwise be a public record. The AG also confirmed, as a factual matter, that the settlement had not been filed under a federal court's protective order, which meant the town could not point to any court-ordered sealing as a basis for withholding the document.

Citations

• State ex rel. Findlay Publishing Co. v. Hancock County Board of Commissioners, Ohio Supr., 684 N.E.2d 1222 (1997) (a public entity cannot enter into enforceable promises of confidentiality regarding public records)

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/05/04/04-ib11-re-freedom-of-information-act-complaint-against-town-of-fenwick-island/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 04-IB11 (Del.A.G.), 2004 WL 1147054

Office of the Attorney General

State of Delaware

Opinion No. 04-IB11

May 4, 2004

Re: Freedom of Information Act Complaint Against Town of Fenwick Island

*1 Mr. William Weistling, Jr.

RD 3 , Box 235A

Fenwick Island, DE 19944

Dear Mr. Weistling:

Our Office received your Freedom of Information Act ("FOIA") complaint on March 16, 2004. You allege that the Town of Fenwick Island ("the Town") violated the public records requirements of FOIA by not providing you with a copy of the settlement agreement that ended a lawsuit between the Town and former police chief George Dickerson.

By letter dated March 17, 2004, we asked the Town to respond to your complaint. We received the Town's response on March 24, 2004. First, the Town contends that you have "not requested nor been denied a copy of the agreement." Since we received your complaint, our Office has been copied on letters by two other citizens (R. Wayne Carmean and Bobbi Lednum) to the Town requesting copies of the settlement agreement which they have not received. Any standing issue therefore is moot.

The Town also contends that it cannot provide access to the settlement agreement because the "terms of the settlement agreement have been sealed by mutual agreement of the parties" and can only be released "if [the Town] is ordered to do so by a court of competent jurisdiction."

We have confirmed that the parties did not file the settlement agreement under seal with the federal district court pursuant to a court-approved protective order. Accordingly, a court order is not required to unseal any records filed with the court in the Dickerson lawsuit.

To the extent there may be a confidentiality clause in the agreement, we have previously determined that a public body "'cannot enter into enforceable promises of confidentiality regarding public records.'" Att'y Gen. Op. 02-IB24 (Oct. 1, 2002) (quoting State ex rel. Findlay Publishing Co. v. Hancock County Board of Commissioners, Ohio Supr., 684 N.E.2d 1222 (1997)).

Conclusion

For the foregoing reasons, we determine that the Town violated the public records requirements of FOIA by denying citizens access to records relating to a settlement of a civil rights lawsuit in which the Town and members of the Town Council were defendants. As remediation, we direct the Town to make those documents available to you (and any other citizen who has asked) for inspection and copying within ten days of the date of this determination. Such documents should include any written settlement agreement, and copies of checks issued to the plaintiff and/or his attorney.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Malcolm S. Cobin

State Solicitor

Del. Op. Atty. Gen. 04-IB11 (Del.A.G.), 2004 WL 1147054