City cannot use agreement to keep settlement secret

TENNESSEE–The city of Memphis cannot enter into a confidentiality agreement to keep an otherwise public settlement agreement secret, the state Court of Appeals in Jackson held in mid- May.

“The idea of entering into confidentiality agreements with regard to public records is repugnant and would thwart the purpose and policy of the [Public Records] Act,” the appellate court wrote.

In September 1997, the city settled a civil rights suit with the family of Adam Pollow, who died while in the custody of the city police department. As part of the $475,000 court-approved settlement, the Pollows agreed to keep the settlement terms confidential and pay $100,000 in damages if they breached the agreement.

Although the Pollows signed the confidentiality agreement and subsequent order, the city did not. Shortly thereafter, The Memphis Flyer, a weekly newspaper, requested copies of records detailing the settlement. Although the city initially wanted to release the records, it reversed its position after discussion with the Pollows’ attorney.

During the litigation, the city admitted that the documents were public records, but denied that it violated the state Public Records Act by refusing to release them because it was bound by a court order.

Following its loss before the chancery court in Memphis, the city appealed the court’s award of attorney’s fees. State records law discourages bad faith records refusals by allowing the court to assess costs and attorney’s fees against the government. Finding the record below to be insufficient, the appellate court remanded the case for proper reconsideration of the attorney’s fee award against the city. The city had not presented any evidence that it did not know that the records were public and that it did not act willfully in withholding them.

Even if the city could make settlement records confidential under state law, it could not do so in this case because it was not bound by the settlement agreement signed by the Pollows, the court stated. (Contemporary Media, Inc. v. City of Memphis)