May 4, 2004
Civil Division-Kent County (739-7641)
Mr. William Weistling, Jr.
RD 3, Box 235A
Fenwick Island, DE 19944
Re: Freedom of Information Act Complaint Against Town of Fenwick Island
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)).
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
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Tempe Brownell Steen, Esquire
Lawrence W. Lewis, Esquire
Deputy Attorney General
Phillip G. Johnson, Opinion Coordinator