Confidentiality clause inconsistent with records law, court finds

NORTH DAKOTA–The North Dakota Supreme Court in Bismarck unanimously held in late April that an attorney representing the State Board of Chiropractic Examiners in a sexual abuse case against a chiropractor did not violate professional conduct rules when she spoke with the press about the case, even though a settlement agreement made terms of the settlement confidential.

The high court noted that the legality of such a restrictive confidentiality clause in a settlement agreement was “questionable” in light of the state open records law. The court ruled that parties to an administrative proceeding cannot circumvent open records laws simply by making the terms of a settlement agreement confidential.

The court added that the settlement agreement prevented the Chiropractic Board from providing information that was obtainable from public records.

In a concurrence, the chief justice wrote that, “recognizing the spirit and purpose of the agreement,” the attorney “might have declined to talk to reporters except to refer them to the written agreement itself and to make a copy of the agreement available if requested.” The chief judge observed that the open records law does not require the holder of a record to discuss it with reporters or the public.

In October 1993, Assistant Attorney General JoAnn Toth represented the Chiropractic Board in a disciplinary action against Dr. Jeffry Vendsel, a chiropractor who was accused of sexually abusing patients. The following September, the parties entered into a settlement agreement providing for a six-month suspension of Vendsel’s license. The parties agreed to keep the settlement confidential “except as otherwise provided by North Dakota Law.”

The following month, Vendsel filed a disciplinary complaint with the state bar against Toth for answering press inquiries that had been forwarded to her by the Chiropractic Board’s secretary. In response, Toth claimed that she did not violate the confidentiality clause because she did not initiate the press contacts, but merely made appropriate responses concerning “open records which could rightfully be disclosed.”

The attorney disciplinary board admonished Toth for committing what it considered to be a “misrepresentation” by failing to honor the confidentiality clause. Toth appealed the decision to the high court. (Toth v. Disciplinary Board of the Supreme Court of North Dakota)