When someone files a FOIA request in the State of Michigan, the government has five days to answer the request. Of course, if you’re most government agencies, you ask for the 10 day extension based on no justification whatsoever. But after that, Does TCAPS have to disclose the Ann Cardon settlement agreement?
Listening to Grant Parsons on the video of the TCAPS recall grassroots group, he talked about the non-disclosure agreement between TCAPS and swiftly departed former superintendent Ann Cardon. Parsons said that the non-disclosure agreement is not enforceable because it involves a government agency. Parsons went on to say that he put in a bunch of Freedom of Information Act (FOIA) requests for information from TCAPS. We all want to know what TCAPS paid Cardon as Sue Kelly slammed the door behind her on the way out.
Does TCAPS have to produce the settlement? Is the Ann Cardon confidentiality agreement subject to public disclosure, or is it exempt because TCAPS and Cardon signed a non-disclosure agreement?
Does a non-disclosure agreement shield a government agency from FOIA when the government agency is a party to the non-disclosure agreement?
No, a non-disclosure agreement does not shield a government agency from FOIA when the government is a party to the non-disclosure agreement. A government agency cannot contract away the public’s right to information. Legal precedent makes it clear that the government must still produce settlement agreements with third parties even when those agreements contain a confidentiality or non-disclosure provision.
TCAPS, the Ann Cardon non-disclosure, and FOIA
I went to research this issue, and I found that the law is actually really clear and settled in favor of the public on this one. TCAPS cannot hide behind the non-disclosure agreement in order to refuse to tell us how much they paid off Cardon.
Heritage Newspapers, Inc. v. City of Dearborn – The newspaper wanted a bunch of lawsuit settlement agreements. The city tried to say no, and the court said the city had to produce the settlements. The court said that settlement agreements expend public funds. The court rejected wails of attorney-client privilege by the city, saying that attorney-client privilege is narrow in scope and that there is nothing in a lawsuit settlement agreement that is of a personal nature.
Huron Restoration, Inc. v Board of Control of Eastern Michigan University – The court said that a public body can’t choose what documents to release by entering into settlement agreements with confidentiality clauses. They said that FOIA is the law of the land even if the government doesn’t like it.
Detroit Free Press Inc. v City of Detroit – “There is no FOIA exemption for settlement agreements.” I don’t know how it gets any clearer than that.
If TCAPS is going to dig its heels in, they’re going to keep their attorneys in the billable hours fighting losing lawsuits.
We won’t be done with the TCAPS thing here on Dirty until we roast Jeffrey Butler a little more. Then we will stand down.