County cannot promise confidentiality in discrimination settlement

OHIO–A settlement agreement in a racial discrimination case brought by a former police officer against the Hancock County Board of Commissioners is public despite a confidentiality agreement reached between the parties, the Ohio Supreme Court in Columbus ruled in late October. The challenge to the agreement was brought by The (Findlay, Ohio) Courier.

A government agency cannot make enforceable promises of confidentiality concerning public records, the court said.

The newly released settlement agreement reportedly shows that although the lawsuit against the commissioners had sought $4 million and changes in the training and supervision of sheriff’s deputies, the commissioners were actually able to settle for $97,000 without agreeing to any changes in law enforcement practices and without admitting any fault.

Sheriff’s deputies in August 1994 arrested, strip-searched and deloused former Findlay police officer Clifton Baxter in nearby Arlington, Ohio, after he refused to hand over his identification. Because of his previous law enforcement work, Baxter and two of the four deputies who participated in his arrest knew each other. The deputies, who had acted on a phone tip that a “suspicious” looking black man was in town, charged Baxter with disorderly conduct, but a jury acquitted him of the charge in early 1995.

Baxter then sued Hancock County in the county district court, claiming that he had been the victim of racially discriminatory action by the deputies.

In May 1997 the Hancock commissioners adopted a resolution to accept a settlement agreement negotiated with Baxter. The resolution did not describe the terms of the agreement, which included a confidentiality provision. The commission forwarded the agreement to a private attorney representing the county’s insurer so that no employee could be accused of violating the confidentiality provision.

Courier reporter J. Steven Dillon was refused a copy of the settlement and the newspaper petitioned the state Supreme Court to review the denial, claiming that the Ohio Public Records Law requires disclosure.

The commission claimed that the open records law did not apply because it did not physically possess the agreement any longer and because the insurer’s payment of the settlement involved no public expenditure.

The state’s high court said that agencies cannot avoid disclosure requirements by delegating public duties to private groups. (State ex. rel. Board of Commissioners; Media attorney: Ralph Russo, Findlay, Ohio)