Final settlement agreements in state suits must be open

COLORADO–A final written settlement agreement entered into between a state agency and an employee as a result of alternative dispute resolution is a public record disclosable under the state Open Records Act, the Attorney General concluded in a formal opinion issued in early July. However, written communications provided by a state agency during the process are confidential, the opinion stated.

The opinion was issued in response to a request from the University of Colorado Board of Regents asking whether written communications by a state institution or agency, issued in the course of a mediation proceeding, would be subject to the act.

Attorney General Gale Norton noted that the Dispute Resolution Act (DRA) provides that communications conducted or provided in the course of a mediation or dispute resolution proceeding are confidential. However, that act specifically exempts from the definition of “mediation communication” any fully executed written agreement reached as a result of the proceeding.

Moreover, a 1990 Colorado Court of Appeals decision, The Denver Publishing Co. v. University of Colorado, found that “the public’s right to know how public funds are expended is paramount considering the public policy of the Open Records Act,” the attorney general said. Nevertheless, the court in that decision held that preliminary statements made during the arbitration process were properly withheld from disclosure.

After analyzing both the Open Records Act and the Dispute Resolution Act, the attorney general concluded that the General Assembly intended a final settlement agreement entered into between a state agency and an employee to be an open record, although written communications made during the process may be kept secret. (Colo. Att’y Gen. Op. No. 98-1)