Connecticut’s Freedom of Information Act turns 40 years old today, and in honor of that milestone, let’s write about a transparency success story – the tale of an agency that received a request for public documents and actually produced the records with no delays, no phony roadblocks, and even no cost.
This is not a fictionalized fantasy; it really happened, and it involved the City of Hartford Corporation Counsel, which, under prior regimes, was not always so agreeable when it came to giving, to the public, records that belong to the public.
First, some background: On Nov. 14, 2012 a Hartford man named Lamonte Brown was walking with his dog Boomer on South Marshall Street when police officers investigating a noise complaint confronted him and, he says, beat him, shot him with Tasers, and impounded his dog, which was later euthanized.
Those events led to a lawsuit against the officers in federal court and then, in August, to a formal settlement – with Brown agreeing to drop the suit and city officials agreeing to write Brown a check for $7,500. The settlement was later reported by the Associated Press, in a story that included this curious line: “Brown’s lawyer, John Q. Gale, said he couldn’t discuss the case because of a confidentiality agreement.”
Such confidentiality agreements are common in lawsuit settlements. They are also controversial, with a continuing debate over whether the potential benefit of that secrecy (the ability to settle more cases without the fear of inviting more litigation) outweighs the potential harm (keeping the public in the dark about, say, especially dangerous doctors or dangerous products or serial rapists).
But when it comes to public agencies – at least in Connecticut – that debate is mostly muted. Our Freedom of Information Commission – an independent agency that is the jewel of the law turning 40 today – has consistently held that when government officials settle lawsuits, they can’t keep taxpayers in the dark about the terms of the settlement – unless there are special circumstances that compel a a judge to take the extraordinary step of ordering the settlement sealed.
Which brings us back to Lamonte Brown’s case. There is no order in the court file sealing the city’s settlement agreement, so I fired off an FOI request to Senior Assistant Corporation Counsel Nathalie Feola-Guerrieri, the city lawyer named in the AP story. I cited the appropriate case law, including a Freedom of Information Commission ruling from a few months ago that noted: “This Commission has on numerous previous occasions ruled, when addressing the issue of the disclosure of settlement agreements entered into by public agencies, that such agencies may not contract away the public’s right to know under the FOIA by including a provision prohibiting any party to the agreement from disclosing its terms.”
Accordingly, I asked her to send me a copy of the settlement, preferably by email. I sent that request on Sept. 14 at 2:11 p.m. And to no one’s greater surprise than mine, I received a reply from Attorney Feola-Guerrieri – with the settlement documents attached – exactly eight minutes later. Reading my letter, composing her reply and attaching the records surely took up eight minutes, meaning the city’s attorney devoted no time to conjuring up imaginary exemptions, or deciding whether to respond at all, or seeking the advice of colleagues on a strategy for telling the Courant to go pound sand.
She simply, and promptly, obeyed the law as the legislature has commanded all public officials to do. That happens far less often than it should. So hats off to Nathalie Feola-Guerrieri.
Still, as the headline notes, this is a mostly good-news story. The settlement document the city turned over was fairly routine: Brown forever relinquished the right to sue over the events of that day in November 2012, and the city or its insurer wrote him a check for a modest $7,500. But there is one troubling paragraph – the paragraph that led Brown’s attorney to decline comment.
As an “express condition” of receiving the payment, the settlement states, Brown had to agree that “he will not individually or through any representative, attorney or other person acting on his behalf, disclose or publish the settlement of the Lawsuit, or the terms and conditions thereof to any person, including, but not limited to any organization, the news and communication media or any agent thereof, nor will he cause or permit such disclosure or publication to be made, solely excepting such disclosure as is required by statute, court order or with the written consent of [the city].”
That pretty clearly violates the Freedom of Information Commission’s declaration that public agencies may not include a settlement provision “prohibiting any party to the agreement from disclosing its terms.” And it’s doubly concerning that the sentence makes a point of specifying that Brown has to keep his mouth shut to the news media.
All of this is troubling because settlements, like all contracts, are built on the concept of “consideration” – that when one side gives something up, they get something in return. With such a small settlement there’s no reason to believe that the city was paying Brown to stay silent, but beyond this particular case, it’s obvious bad public policy – and just all-around offensive – to use the public’s money to keep the public in the dark about the public’s business.
Those clauses should vanish from public-agency settlement agreements. In the meantime, thank goodness the Connecticut Freedom of Information Commission exists to assure that the terms of such agreements can’t be kept from the public that has to pay for them.
Happy Birthday, FOI.