Confidentiality clause does not justify denial of disclosure

KENTUCKY–The Lexington-Fayette Urban County Government violated the state Open Records Act when it denied a Lexington Herald-Leader reporter’s request for disclosure of a settlement agreement between the county government and one of its former employees, the Kentucky Attorney General said in an opinion issued in Frankfort in late February.

The county government violated the act by relying on a confidentiality clause in the agreement as the basis for its denial, according to the opinion. That confidentiality clause cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure in the Open Records Act.

Instead, it is the responsibility of the party affected by disclosure to assert any privacy claims in court, according to the attorney general. Absent such action, the public agency is obliged to proceed under the open records act, by complying with the request or denying inspection on the basis of an exemption.

The Attorney General’s Office “cannot approve of a policy of agency inaction in the face of a pending open records request while the party affected by disclosure of the records ‘sits on his rights,'” according to the opinion.

Moreover, review of the settlement agreement revealed “little or nothing” of a personal nature, and nothing that would cause serious personal embarrassment or humiliation sufficient to overcome the presumption of openness, the opinion said. The former employee’s desire to keep secret the amount of money he received can be accorded little weight, the opinion noted.

After receiving Herald-Leader reporter John Cheves’ September 1994 request for the agreement, the county government immediately notified the former employee. The former employee, who had sued the county for breach of contract and emotional distress resulting from the termination of his employment, demanded that the county government enforce the confidentiality provisions of the settlement agreement, but did not contest disclosure of the agreement in court. (In re: The Lexington Herald-Leader Company/Lexington-Fayette Urban County Government; Media Counsel: Robert Houlihan, Jr., Lexington)