Delaware Department of Justice
Attorney General
Kathy Jennings

02-IB24 Re: Freedom of Information Act Complaint Against New Castle County

Del. Op. Atty. Gen. 02-IB24 (Del.A.G.), 2002 WL 31867898
Office of the Attorney General
State of Delaware
Opinion No. 02IB24
October 1, 2002
Re: Freedom of Information Act Complaint Against New Castle County
*1 Ms. Charlotte Hale
Staff Reporter
The News Journal
950 West Basin Road
P.O. Box 15505
New Castle, DE 19720
Dear Ms. Hale:
Our Office received your Freedom of Information Act (“FOIA”) complaint on September 13, 2002. You allege that New Castle County (“the County”) violated the public records requirements of FOIA by not providing you with copies of any checks payable to Sharon Hughes, former legislative aide to New Castle Councilman J. Christopher Roberts, or her attorney, Richard J. Wier, Jr., Esquire, relating to the legal settlement of a personnel matter between the County and Ms. Hughes.
By letter dated September 16, 2002, we asked the County to respond to your complaint. We received the County’s response on September 27, 2002. The County contends that the documents you requested are exempt from disclosure under FOIA as personnel files, or documents protected by the common law right of privacy.
Relevant Statutes
FOIA provides that “[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” 29 Del. C. § 10003(a).
FOIA exempts from disclosure:
(1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy;…
(6) Any records specifically exempted from disclosure by statute or common law;…
(9) Any records pertaining to pending or potential litigation which are not records of any court;….
29 Del. C. § 10002(b)(1), (6), (9).
Legal Analysis
Because this is a case of first impression in Delaware, we look to court decisions in other states for guidance. They are unanimous in holding that settlement agreements and records of payments to settle disputes between public bodies and their employees are records that must be open the public.
Although the County relies on only two exemptions under FOIA (personnel file, and common law privacy), we consider all of the possible arguments against disclosure for a complete analysis of the issues raised by your complaint.
1. Personnel File
Delaware’s FOIA does not define “personnel file.” The courts in other states have construed the same term in their public records law to mean a file that “has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved.” Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, Conn. Supr., 657 A.2d 630, 638 (1995). A “personnel file” is “a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should be promoted, demoted, given a raise, transferred, reassigned, dismissed, or subject to such other traditional personnel actions.” Id.
*2 We adopt the same definition of “personnel file” for purposes of construing Delaware’s FOIA. This definition is consistent with another Delaware statute giving public employees the right to inspect their “personnel file,” defined as “any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, performance evaluations and medical records.” 19 Del. C. § 731(3).1
An agreement settling an employee’s legal claim does not contain information gathered by an employer for the purposes of making traditional personnel decisions. Nor does a document relating to a legal settlement become exempt from FOIA by placing it in an individual’s personnel file and claiming an exemption based on the document’s location, rather than its content.
In Denver Publishing Co. v. University of Colorado, Col. App., 812 P.2d 682 (1991), the university fired its chancellor. The parties went to arbitration and reached a settlement, and the university put a copy of the settlement agreement in the chancellor’s personnel file. The Colorado Open Records Act excepts from disclosure “personnel files.” Col.Rev.Stat. § 24-72-204(3)(a)(II). The Colorado Appeals Court held that the settlement agreement did not fall within this exception. The courts have a duty “to ensure that documents as to which this protection is claimed actually do implicate the right of privacy and are, therefore, properly within the personnel file.” 812 P.2d at 684. The university could not “restrict access to the terms” of the settlement agreement “merely by placing such documents in a personnel file.” Id.
We determine that documents relating to a legal settlement between a public body and one of its employees are not within the definition of a “personnel file” and are public records under Delaware’s FOIA.
2. Common Law Privacy
Delaware law recognizes a common law right of informational privacy. See Board of Education of Colonial School District v. Colonial Education Association, Del. Ch., 1996 WL 104231 (Feb. 28, 1996) (Allen, C.). The courts “will be required on a case by case basis to resolve the balance between legitimate privacy claims and the need for access to public information.” Colonial, 1996 WL 104231, at p.8.
In Heritage Newspapers, Inc. v. City of Dearborn, Mich. Cir., 1995 WL 688259 (Apr. 20, 1995), the city settled four lawsuits. A newspaper then made a FOIA request for copies of the settlement agreements. The city argued they were exempt from disclosure because they contained “[i]nformation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.” Mich.Code § 15.243(1)(a). The court disagreed, and held that there was nothing in an agreement “entered into by a public body to settle damage claims against it, including the amounts of public funds to be expended as assented to by the public body” that is “information of a personal nature.” 1995 WL 688259, at p. 2. See also City of Helen v. White County News, Ga. Super., 1996 WL 787416, at p.3 (Oct. 7, 1996) (no “right of privacy on behalf of those individuals in the underlying lawsuit” that “would protect legitimate inquiry into the operation of a governmental entity and those employed by it”).
*3 In Daily Gazette Co. v. Withrow, W.Va. Supr., 350 S.E.2d 738 (1986), a former deputy sheriff sued Kanawha County for firing him in retaliation for the exercise of his First Amendment rights. The parties settled the case and dismissed the federal civil rights lawsuit. A newspaper then made a FOIA request for any documents reflecting the terms of the settlement. The West Virginia Supreme Court held that the documents were public records that must be disclosed.
[T]he courts have recognized that there are two types of public interests mandating disclosure of such a document under a state’s freedom of information statute:
(1) the public’s right to know whether a public official or a public employee has been charged with official misconduct… and (2) the financial impact upon the public of a litigation settlement which is paid either with public funds or with insurance proceeds generated by publicly financed insurance premiums (which premiums are adjusted based upon claims experience).
350 S.E.2d at 743.
A public employee may have some expectation of privacy in the settlement of a legal claim against his or her employer, but any individual privacy interests are outweighed by the public’s right to know how their government is spending public monies, a core FOIA function. We recognize that some litigants may be “unwilling to settle unless the terms of the settlement remain confidential, and that a [public body’s] inability to assure confidentiality may, therefore, adversely affect its ability to negotiate a settlement.” Anchorage School District v. Anchorage Daily News, Alaska Supr., 779 P.2d 1191, 1193 (1989). Nevertheless, FOIA “reflect[s] a policy determination favoring disclosure of public records over the general policy of favoring settlement.” Id.
We determine that any individual right of privacy in the records of a legal settlement is outweighed by the public interest in disclosure.
3. Work Product Privilege
Delaware’s FOIA exempts from disclosure records exempted by “common law.” 29 Del. C. § 10002(d)(6). There is “a general and persuasive common-law work product privilege” recognized “prior to the adoption of both state rules of civil procedure and public records statutes.” Killington, Ltd. v. Lash, Vt. Supr., 572 A.2d 1368, 1377 (1990).
In Dutton v. Guste, La. Supr., 395 So.2d 683 (1981), the state entered into an out-of-court settlement with a joint venture of architects and engineers that designed and built the Superdome. The Louisiana Supreme Court held that the settlement agreement was not exempt from disclosure under the public records law as work product prepared for litigation. “We do not find that any of the provisions of the agreements in question reflect the mental impressions, conclusions, opinions or theories of the attorneys relative to the merits of this case.” 395 So.2d at 685. “Moreover, while prepared in connection with the litigation pending between these parties… we are unable to say that the agreements are of the type obtained or prepared in anticipation of litigation or in preparation for trial. On the contrary, we consider that the documents were prepared in an attempt to conclude the litigation between these parties by settlement.” Id.
*4 In State ex rel. Kinsley v. Berea Board of Education, Ohio App., 582 N.E.2d 653 (1990), the school board argued that a settlement agreement and checks were exempt from disclosure under the public records law as work product. The Ohio Appeals Court disagreed.
A settlement agreement is not a record compiled in anticipation of or in defense of a lawsuit. It simply does not prepare one for trial. A settlement agreement is a contract negotiated with the opposing party to prevent or conclude litigation. Consequently, although the parties and their attorneys subjectively evaluated the litigation confronting them in order to reach a settlement, the settlement agreement itself contains only the result of the negotiation process and not the bargaining discourse which took place between the parties in achieving their settlement.
582 N.E.2d at 663.
In The Tribune Co. v. Hardee Memorial Hospital, Fla. Cir., 1991 WL 235921 (Aug. 26, 1991), the hospital settled a medical malpractice claim, and the newspaper made a public records request for the settlement agreement. The Florida Circuit Court held that the agreement was not exempt from disclosure as litigation work product. A “settlement agreement signed by the parties cannot constitute work product, even if the payment of money constitutes a damages ‘bench mark’ that might be relevant in a related lawsuit.” 1991 WL 235921, at p.1. “Furthermore, even if the signed settlement agreement constituted work product, the termination of the litigation, as evidenced here by the stipulation of dismissal, eviscerates the limited work product exemption under [the public records law].” Id. at p.3.
We determine that documents relating to the settlement of a legal claim between a public body and one of its employees is not exempt from disclosure under Delaware’s FOIA under the common law work product privilege.
4. Potential/Pending Litigation
The potential/pending litigation exemption in Delaware’s FOIA has a limited purpose: to prevent a party from circumventing the civil discovery rules. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (FOIA was “not intended to function as a private discovery tool”). “[T]he obvious purpose of this exemption is to prevent a litigant from obtaining a greater advantage against the governmental entity than would otherwise be allowed through normal discovery channels.” City of Los Angeles v. Superior Court, 41 Cal.App.4th 1083, 1090 (1996).
In any event, a settlement agreement disposes of the dispute, either before a complaint is filed in court, or after. At that time, there is no “pending” or even “potential” litigation. We determine that records pertaining to a legal settlement of a dispute between a public employer and one of its employees is not exempt from disclosure under FOIA as pertaining to pending or potential litigation.
5. Confidentiality Agreement
In State ex rel. Findlay Publishing Co. v. Hancock County Board of Commissioners, Ohio Supr., 684 N.E.2d 1222 (1997), the Ohio Supreme Court held that a confidentiality provision in a settlement agreement cannot preclude disclosure under the state public records law. “A public entity cannot enter into enforceable promises of confidentiality regarding public records.” 684 N.E.2d at 1225. Accord Anchorage School District, 779 P.2d at 1193 (1989) ( “a confidentiality provision… is unenforceable because it violates the public records disclosure statutes”); Hardee Memorial Hospital, supra (“[a]n agency simply cannot bargain away its Public Records Act duties with promises of confidentiality in settlement agreements”); City of Helen, supra (a non-disclosure provision in a settlement agreement is “invalid and void as against the public policy of this State”).
*5 We determine that any nondisclosure provision in a settlement agreement between Ms. Hughes and the County cannot override the public records requirements of FOIA.
For the foregoing reasons, we find that the County violated FOIA by not providing you with access to documents relating to the settlement of a legal claim between Ms. Hughes and the County. We direct the County to make those public records available to you within ten days of the date of this decision.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
State Solicitor

1 We note that our Office has previously determined that salaries of public employees are not exempt under FOIA. See Att’y Gen. Op. 96-IB13 (May 6, 1996); Att’y Gen. Op. 95-IB13 (May 20, 1995). The “personnel file” exemption under FOIA is not a blanket exemption, but only protects information if disclosure “would constitute an invasion of personal privacy.” 29 Del. C. § 10002(d)(1). “While “some might feel that the amount of their salary is personal, it is generally recognized that the public has a legitimate interest in knowing the salaries of persons who are paid with public funds and public employees have no right of privacy in this information.” Gannett Co. v. Colonial School District, Del. Super., C.A. No. 82M-DE26 (Aug. 10, 1983) (Balick, J.). 

Del. Op. Atty. Gen. 02-IB24 (Del.A.G.), 2002 WL 31867898

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