Confidentiality agreement violates open records law

COLORADO–In early March, the state court of appeals in Denver affirmed the dismissal of a defamation and breach of contract suit filed by former St. Vrain Valley School District superintendent Dr. Fred Pierce, finding that a confidentiality agreement violated public policy considerations.

Pierce resigned his position in 1994 after he had been accused of sexually harassing several female school district employees. In conjunction with his resignation, Pierce and the school district entered into an agreement stipulating that Pierce would announce his resignation “for personal reasons,” the district would not make any public statements that were inconsistent with Pierce’s announcement and that the details surrounding Pierce’s resignation would remain confidential.

Several weeks after Pierce announced his resignation, The Denver Post ran a story headlined “Schools Chief is Paid to Leave” which revealed the allegations of sexual harassment. The story attributed certain statements to “a source close to the deal.” Pierce filed suit against the school district for breach of the agreement and also for defamation.

The trial court in Boulder held that the confidentiality provision of the agreement violated public policy. The appeals court agreed, reasoning that both the state constitution and public records statutes require that “the terms and facts surrounding a settlement agreement between a government entity and a public official generally may not be kept secret from the public.”

The open records statute clearly states that “the public policy of the state that all public records shall be open for inspection by any person at reasonable times” with certain limited exceptions, the court said, holding that a public entity cannot “create by contract a new exception to the disclosure requirements.” The appeals court concluded that the confidentiality provisions of the agreement were void becuase they violated the strong public policy favoring disclosure of public records. (Pierce v. St. Vrain Valley School District; Defendant’s Counsel: Patrick Mooney, Denver)