TRANSPARENCY TUESDAY: It's a deal -- settlement agreements must be made public



A college employee is accused of wrongdoing, and fights to keep his job. Rather than drag out the hostilities, both sides agree on a buyout, and the employee quietly goes away.

Or maybe it's the other way around. An employee accuses the school of wrongdoing -- discrimination, harassment, retaliating against whistleblowers -- and accepts a financial settlement to drop his case, avoiding the rancor of a public jury trial.

Either way, the public has a strong interest in knowing as much as possible about the terms of the deal. When a public school or college agrees to pay a settlement, that's taxpayer money. Even if the substance of the case remains uncertain, the size of the payment can itself indicate the seriousness of the underlying behavior.

To illustrate: in 2009, the University of Illinois-Springfield agreed to pay a former student-athlete $200,000 to settle unspecified claims against an assistant coach about his behavior during a team road trip. Defendants don't pay six figures to rid themselves of provably frivolous claims. A payment of that size indicates that the school perceived the case to present a serious risk.

Now, the college is in court defending its decision to redact details out of the settlement agreement before producing a copy to the local newspaper, the State Journal-Register. College attorneys claim releasing the entire document would compromise student privacy and invade government officials' "deliberative process."

The university's argument got slightly more difficult last week, when yet another court ruled that settlement agreements by public colleges are a matter of public record.

In Doe v. University of Iowa, the Iowa Court of Appeals decided that a reporter from the Associated Press is entitled to see the agreement resolving a personnel dispute between the university and a medical-school faculty member who resigned in 2011.

The unnamed employee, who filed suit as "John Doe" to protect his privacy, argued that the document was covered by an exemption in Iowa law that allows agencies to withhold "personal information in confidential personnel records."

But the appeals court disagreed. The judges found that the AP's purpose in obtaining the information served the public interest, that the information was unavailable from any alternative source, and that "inconvenience or embarrassment" to public employees is never a sufficient justification for secrecy:

We conclude the gravity of the invasion into plaintiff’s personal privacy does not exceed the public’s interest in the use of public funds.
The Iowa outcome is consistent with a growing body of rulings throughout the country, including recents cases in Arizona and Massachusetts, in which courts have ordered schools and colleges to turn over settlements -- even where both parties signed a non-disclosure agreement and expected the terms to remain confidential.

Lesson: A government agency cannot "contract its way out of" the open records law. A contract not to release a public record is no more legally enforceable than a contract to start a heroin business.

Unless the government is developing top-secret super-weapons or paying double-agents to infiltrate Al Qaeda, how taxpayer money is spent is everyone's business. It's a worthy exercise of public-records laws to ask periodically to see what a college or school district is paying to settle claims, who's getting paid, and why.

Tagged: privacy, public records, settlement agreement, transparency, Transparency Tuesday, University of Iowa