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Monday, June 9, 2014

PAC Says FOIA Trumps Contract Provisions

In its 4th binding decision of 2014, the Public Access Counselor interpreted the Illinois Freedom of Information Act to require the release of separation agreements even where the agreements included confidentiality provisions prohibiting release by either contracting party. PAC Op. 14-004.  Here, a reporter requested all settlement agreements involving the county since January 1, 2013.  The county provided copies of six agreements, but declined to release other agreements that contained confidentiality agreements, citing that release of these agreements would constitute a violation of privacy of the other parties to these agreements.  The reporter appealed to the PAC.  

The PAC first determined that settlement agreements are public records under section 2.20 of FOIA. The PAC acknowledged that no Illinois court has addressed the enforceability of confidentiality provisions in a settlement agreement since section 2.20 was enacted.  Nevertheless, the PAC relied on a general principle that a contract provision that violates a state law contravenes public policy and is not enforceable to find that the county should have released the settlement agreements because the confidentiality provisions were unenforceable.  The PAC rejected the county's argument that the personal privacy exemption should protect the settlement agreements because the agreements resolved allegations of sexual harassment, finding that the public's right to know about the county's expenditure of public funds outweighs any personal privacy rights of a complainant or victim of sexual harassment.  

In sum, in this opinion, the PAC determined that FOIA will trump contractual rights of parties.  The PAC also determined that a reporter's right to view settlement agreements will outweigh the privacy interests of a victim of sexual harassment because any so-called invasion of privacy would not be "unwarranted."

Post Authored by Julie Tappendorf, Ancel Glink


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