PAC Orders Finds Public Body in Violation of FOIA for Withholding Settlement Agreement

After a public body denied a FOIA request for a settlement agreement, the requestor submitted a request for review to the
PAC. In PAC
Op. 24-001, the PAC found the public body in violation of FOIA for withholding the agreement because (1) settlement agreements are public records expressly subject to disclosure pursuant to section
2.20 of FOIA, and (2) the public body did not claim that any portion of the agreement was
exempt.

The public body argued that because the agreement included a mutual non-disparagement clause in the agreement, release of the agreement could expose it to liability because disclosure might cause harm to the other
contracting party, such as disparagement.
The PAC rejected that argument, and also noted that even if the agreement contained a
confidentiality provision prohibiting disclosure of the agreement, that
provision would be unenforceable because section 2.20 of FOIA provides that settlement agreements are public records disclosable to the public, subject to redaction of exempt information.

Post Authored by Eugene Bolotnikov, Ancel Glink