Fisher: Hiding government mistakes won't make government better

The Hamilton County Board of Education's attorney on Wednesday finally revealed to board members the settlement payout amount of $750,000 to a student sexually assaulted during a basketball tournament trip.

Attorney Scott Bennett indicated that this amount was previously confidential because its insurer had entered into a confidentiality agreement with the student and his family.

There is still another student with whom the school board's insurer reached a settlement payout. Bennett has not released that amount. The explanation is that the settlement is under seal in federal court.

The Tennessee Attorney General and the Office of Open Records Counsel have both weighed in on the matter - and told the school board and its insurer, the Tennessee Risk Management Trust - that settlement agreements between governing bodies and private parties are public records. Further, any nondisclosure agreement or confidentiality agreement could make a settlement agreement void and unenforceable.

This is not new. It has been recognized by the Court of Appeals at least twice since 1999, and has been the opinion of the Tennessee Attorney General since 1996.

In 1996, the attorney general said, "An agreement by a governmental agency to restrict public access to public records that are not exempt under state law violates public policy and is unenforceable."

In responding to a question from an emergency communications district that had entered into a confidentiality agreement, the AG said, "By entering into an agreement to restrict access to public records for which no statutory exemption is available, the district would be attempting to create a new exemption from the Public Records Act," which is not allowable.

In May 1999, the Court of Appeals reached the same conclusion in a case involving a newspaper's request for a settlement agreement between the city of Memphis and the family of man who died while being restrained by the Memphis Police Department. After the newspaper sued under the Tennessee Public Records Act, the city finally released the settlement document which it had previously said it was prevented from doing because it was under seal in federal court.

On appeal, the court found in Contemporary Media Inc. v. City of Memphis that the city had willfully violated the Tennessee Public Records Act because it had known government settlements were public records and any confidentiality agreement entered into by the city would be contrary to law.

"A governmental entity cannot enter into confidentiality agreements with regard to public records," the court said. "The idea of entering into confidentiality agreements with respect to public records is repugnant to and would thwart the purpose and policy of the Act. Thus, the City could not lawfully enter into the agreement which it entered into with the family to keep the terms of the public record confidential."

In 2004, the Court of Appeals in The Tennessean v. the City of Lebanon reached this conclusion again in a case in which Lebanon paid a settlement to a widow of a man mistakenly shot by police.

With the clarity of these two cases, and fresh letters from the attorney general and Office of Open Records Counsel to the school board and Tennessee Risk Management Trust, urging toward disclosure, it is somewhat remarkable that the continued position appears to reject what is so apparently before them.

The school board's insurer, the Tennessee Risk Management Trust, is most likely considered a government entity under the law, according to the Office of Open Records Counsel. So even if the school board claims its insurer entered into an agreement without its knowledge or approval of the details, its insurer is also likely subject to the Public Records Act.

In parsing the school board attorney's statement to the Times Free Press last week, it seems to hang onto the idea that the settlement payout can continue to be confidential unless the student's family agrees to make it public.

"I understand that Mr. (Charles) Purcell (the attorney for TRMT) was able to use the attorney general's position to persuade the Doe attorney to waive the confidentiality agreement," Bennett said.

The fact that the school board or the Tennessee Risk Management Trust quite possibly agreed to, or sought, unlawful confidentiality of the settlement amounts seems to be lost.

The citizens of Chattanooga, and citizens of this state whose schools boards and county governments pay insurance premiums to the Tennessee Risk Management Trust, might consider why this issue is important.

In this case, the school district faced costly liability for its actions or nonactions related to the student assaults.

Our history must surely convince us that secrecy that hides the scope of government mistakes, including the cost, from the people will not make government better.

It is only through transparency that citizens have a full accounting of the impact of government decisions and that our chance to maintain self-governance will continue.

Deborah Fisher is executive director of Tennessee Coalition for Open Government.