Can a Delaware agency withhold an employee settlement agreement as a 'personnel file' just because the dispute went through the Merit Employee Relations Board?

Official title

22-IB47 11/30/2022 FOIA Opinion Letter to Xerxes Wilson re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Plain-English summary

Reporter Xerxes Wilson asked DNREC for every settlement agreement involving DNREC officials, officers, staff, or employees from January 2019 forward. DNREC at first pointed Wilson to its Enforcement Orders page and said one other agreement, a settlement with a former Planner IV named John Kennel for $94,066, was off-limits as a personnel file because the dispute had run through the Merit Employee Relations Board (MERB). Wilson petitioned. DNREC then took a second look, decided the Kennel settlement was not a MERB "grievance record" under MERB Rule 16.1 after all, and produced the agreement together with a sworn affidavit from its FOIA Coordinator. The AG's Office treated DNREC's supplemental production as resolving the dispute.

The takeaway is that an agency cannot reflexively label every settlement that touches a personnel grievance as a confidential "personnel file." MERB Rule 16.1 protects grievance records, but a final settlement that resolves an EEOC charge, a Department of Labor charge, and a federal-court lawsuit is not the same thing as a grievance record, and FOIA's personnel-file exemption in 29 Del. C. § 10002(o)(1) is narrower than agencies sometimes assume.

What this means for you

For Delaware journalists and watchdogs. When a Delaware agency tells you a settlement agreement is exempt as a personnel file, push back. Ask the agency to identify the specific privacy interest at stake, and ask whether the document was filed in a court or with an administrative tribunal that operates publicly. The personnel-file exemption is meant for the kind of records that a hiring manager would keep about an individual employee (discipline letters, medical accommodations, performance reviews), not for the global terms of how an agency settled a lawsuit at taxpayer expense. If the dollar amount comes from public funds, FOIA's strong presumption of access weighs in your favor.

For Delaware agencies and their FOIA coordinators. A blanket "MERB grievance, therefore exempt" answer is not safe. Walk through whether the document is actually part of the personnel file, whether disclosure would be an "invasion of personal privacy" under § 10002(o)(1), and whether the settlement agreement itself anticipates FOIA disclosure (this one did, expressly). If it does, that contractual language defeats the secrecy argument before you even reach the privacy analysis.

For Delaware government employees who settle disputes with their employer. Read the FOIA disclaimer language carefully. The Kennel agreement here said "the parties recognize that DNREC may, from time to time as part of their official duties, be required to disclose information about this Agreement, and its terms and conditions, during the normal course of its business, including pursuant to a lawful request pursuant to the Freedom of Information Act." That clause means the dollar figure, the recital of underlying disputes, and the structure of the deal can become public. If you want a different result, you need to negotiate a different clause, and even then the personnel-file exemption only goes so far.

For employers (private and public) negotiating settlements with Delaware government workers. Don't rely on the State signing a confidentiality clause to keep the deal quiet. State settlements paid out of public funds carry a structural transparency that private confidentiality clauses cannot override.

Common questions

Why didn't DNREC produce the settlement the first time?
DNREC's FOIA Coordinator, Lee Sobocinski, swore in his affidavit that DNREC had believed in good faith that the Kennel settlement fell under MERB Rule 16.1, which requires grievance records to be kept confidential as part of a personnel record. On further review, DNREC concluded the settlement was not a MERB "grievance record" and produced it.

What did the settlement agreement actually say?
DNREC paid $94,066 total to resolve a wrongful-termination lawsuit filed by John Kennel, a former Planner IV terminated October 24, 2019. About $23,600 went to Kennel as lost wages with regular payroll withholding, and about $70,466 went to Kennel's lawyers, Kate Butler Law LLC. DNREC also rescinded the termination, accepted Kennel's retirement effective the original termination date, added one year of pension credit, and removed the termination and pre-termination letters from his personnel file.

Was the petition resolved on the merits?
The supplemental production made the AG opinion essentially housekeeping. DNREC produced the settlement together with a sworn affidavit, and the AG's office accepted that disposition. There was no separate finding that DNREC's original denial violated FOIA, but there is also no holding that the personnel-file exemption applied to the agreement.

Does this mean every Delaware settlement involving an employee is public?
No. The MERB exemption in 29 Del. C. § 10002(o)(1) and Rule 16.1 still protect actual personnel-file content and actual MERB grievance records. But the line drawn here is that a final, executed settlement agreement, especially one that resolves federal-court litigation in addition to internal grievances, is not by itself a "personnel file."

Background and statutory framework

Delaware FOIA, 29 Del. C. ch. 100, gives any citizen reasonable access to public records. Section 10002(o)(1) carves out "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy." MERB Rule 16.1 separately requires that "grievance records" be kept as part of a personnel record and treated as confidential.

The Kennel matter spanned multiple forums: two grievances filed in 2019 through the State of Delaware's Human Resource Department under both LREP and MERB dockets, two more grievances filed later that year, three EEOC charges of discrimination, a Delaware Department of Labor charge, and a federal-court lawsuit (Kennel v. DNREC, C.A. No. 1:19-cv-2222-CFC-CJB). DNREC's argument was that because the dispute was rooted in a MERB grievance, the settlement that ended all of it was a "grievance record" subject to MERB Rule 16.1. DNREC abandoned that position in its supplemental response.

The AG's Office did not need to reach the privacy analysis under § 10002(o)(1) because DNREC produced the document. The disposition is therefore best read as DNREC conceding rather than the AG ruling.

Citations

• 29 Del. C. § 10002(o)(1): personnel/medical/pupil file exemption
• 29 Del. C. ch. 100: Delaware FOIA
• Kennel v. DNREC, C.A. No. 1:19-cv-2222-CFC-CJB (D. Del.): referenced in the settlement recitals

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/30/22-ib47-11-30-2022-foia-opinion-letter-to-xerxes-wilson-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/12/Additional-correspondence-from-DNREC-DNREC-Wilson-111822.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OpenGovernment (MailBox Resources)

From: Traver, Sawyer (DOJ)

Sent: Friday, November 18, 2022 8:18 AM

To: OpenGovernment (MailBox Resources); 'Wilson, Xerxes'

Cc: Kassab, William (DOJ); Scott, Devera (DOJ)

Subject: RE: FOIA Petition Concerning the Department of Natural Resources and Environmental Control

Attachments: FOIA Affidavit - X. Wilson Appeal.pdf; 2021.06.22; Kennel v. DNREC; fully executed settlement agreement.pdf; 2021.04.16; UI Appeal.pdf

Ms. LeCates & Mr. Wilson,

Pursuant to our earlier correspondence, please find attached the responsive settlement agreement and an affidavit from DNREC's FOIA Coordinator confirming that all responsive information has been provided. Please let me know if you require anything further.

Best,

Sawyer M. Traver

Deputy Attorney General, Environmental Unit
Delaware Department of Justice
820 N. French Street, 6th Floor
Wilmington, DE 19801
Tel: (302) 577-8908
[email protected]

[Confidentiality notice omitted.]

From: Traver, Sawyer (DOJ)

Sent: Friday, November 4, 2022 9:57 AM

To: OpenGovernment (MailBox Resources) OpenGovernment@delaware.gov

Cc: Kassab, William (DOJ) William.Kassab@delaware.gov; 'Wilson, Xerxes' xwilson@delawareonline.com; Scott, Devera (DOJ) Devera.Scott@delaware.gov

Subject: RE: FOIA Petition Concerning the Department of Natural Resources and Environmental Control

Good morning Ms. LeCates,

Attached, please find the Delaware Department of Natural Resources and Environmental Control's ("DNREC's") response to Xerxes Wilson's October 26, 2022 FOIA Petition. As explained in the attached letter, DNREC requests that the Delaware Department of Justice find that Mr. Wilson's Petition is moot, because DNREC will supplement its original response to Mr. Wilson's FOIA request.

Please let me know if you require anything further from DNREC.

Best,

Sawyer M. Traver

Deputy Attorney General, Environmental Unit
Delaware Department of Justice

[Header repetition and intermediate forwarding emails omitted for brevity. The original PDF preserves the full email chain back to the October 27, 2022 transmission of the petition by FOIA Coordinator Sammy L. LeCates to DAG Devera Scott.]

AFFIDAVIT

STATE OF DELAWARE )
) SS:
COUNTY OF NEW CASTLE )

I, Lee Sobocinski, Freedom of Information Act ("FOIA") Coordinator for the State of Delaware Department of Natural Resources and Environmental Control ("DNREC"), being duly sworn, depose and say that upon information and belief:

1. On or about August 22, 2022, Mr. Xerxes Wilson submitted a FOIA request seeking "any and all settlement agreements (defined as a legal agreement resulting from a lawsuit or a threat of a lawsuit) between DNREC (regarding elected officials, officers, staff or employees) and other parties from Jan. 2019 to present."

2. The FOIA request further specified that it could be satisfied "with a list of such settlements including the parties involved, date the settlement was reached, monetary cost, [and] what prompted it (whether it was due to pending litigation or a formal complaint regarding workplace harassment or something else noticed to government officials)."

3. On or about October 12, 2022, DNREC responded with a link to its Enforcement Orders page, https://dnrec.alpha.delaware.gov/secretarys-orders/enforcement/, which contains the information specified in the FOIA request for each of the DNREC Secretary's written decisions issued in the FOIA request's specified timeframe.

4. DNREC consulted with its Deputy Attorneys General regarding whether there existed any other settlement agreements responsive to Mr. Wilson's FOIA request.

5. DNREC's Deputy Attorneys General confirmed the existence of one additional settlement agreement (the "Employee Settlement Agreement"), initially believed FOIA-exempt pursuant to 29 Del. C. § 10002(o)(1). 29 Del. C. § 10002(o)(1) exempts "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy" from FOIA's definition of "Public record." DNREC, in good faith, believed the Employee Settlement Agreement was non-responsive and exempt from production because the initiating lawsuit arose from a Merit Employee Relations Board ("MERB") hearing. MERB Rule 16.1 specifically states that "grievance records" must be maintained as part of a personnel record and further provides that all such records are confidential and must be maintained as such. DNREC believed that because the Employee Settlement Agreement was the ultimate result of a MERB grievance, it qualified as part of a "personnel file" under 29 Del. C. § 10002(o)(1), and that disclosure of the Employee Settlement Agreement would constitute an unwarranted invasion of personal privacy.

6. Upon further evaluation, however, DNREC has determined that the Employee Settlement Agreement is not subject to MERB Rule 16.1, and is therefore responsive to Mr. Wilson's FOIA request.

7. DNREC is not aware of the existence of any other settlement agreements responsive to Mr. Wilson's FOIA request.

8. Therefore, the information found upon the Enforcement Orders website previously provided to Mr. Wilson, together with the Employee Settlement Agreement, resolve Mr. Wilson's FOIA request.

[Signed] Name: Lee Sobocinski; Title: FOIA Coordinator

Sworn to and subscribed before me, this [day] of [month], 2022.

[Notary block: Sascha Najma Mohammed, Notary Public, State of Delaware]

SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release ("Agreement") is made entered into between John Kennel ("Kennel"), and Delaware Department of Natural Resources and Environmental Control ("DNREC") (collectively the "Parties") and is effective as of the last date signed below.

WHEREAS, Kennel was employed as a Planner IV with DNREC;
WHEREAS, on October 24, 2019, DNREC terminated Kennel's employment;
WHEREAS, on August 28, 2019, Kennel filed two grievances (LREP Case Number 19-00141, and MERB Docket Number 19-08-735) through the State of Delaware's Human Resource Department's ("DHR") grievance process challenging his termination (the "Grievances"), and on November 29, 2019, Kennel filed an additional grievance in both of those matters (LREP Case Number 19-00184, and MERB Docket Number 19-12-742);
WHEREAS, on September 14, 2018, Kennel filed a charge of discrimination (the "Charge of Discrimination") with the Equal Employment Opportunity Office ("EEOC") challenging his termination in Case Number 530-2018-03291;
WHEREAS, on May 1, 2019, Kennel filed a second charge of discrimination (the "Second Charge of Discrimination") with the Delaware Department of Labor ("DDOL") in Case Number: KEN022519/17C-2019-00274;
WHEREAS, on January 10, 2020, Kennel filed a third charge of discrimination (the "Third Charge of Discrimination") with the EEOC in Case Number 530-2020-01374;
WHEREAS, on September 4, 2019, the EEOC dismissed Charge Number 530-2018-03291, and issued a right to sue to Kennel;
WHEREAS, on December 4, 2019, Kennel filed a lawsuit in the U.S. District Court for the District of Delaware, titled Kennel v. DNREC, C.A. No. 1:19-cv-2222-CFC-CJB, alleging DNREC's termination of Kennel was improper (the "Lawsuit");
WHEREAS, the Parties, without any admission of liability or wrongdoing, seek to amicably resolve Kennel's termination from DNREC; and

NOW, THEREFORE, in consideration of the promises, mutual releases and agreements contained herein and other good and valuable consideration, the receipt, validity, and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. The above recitals are hereby incorporated into this Agreement.

2. Settlement Payment. To settle all claims outlined in the above recitals, DNREC shall pay a sum equal to ninety four thousand sixty six Dollars ($94,066.00) (the "Payment"). The payment shall be made within thirty (30) days following the Parties' execution of this Agreement. The Payment shall be issued as follows:

a. to Kennel by direct deposit in the amount of twenty three thousand six hundred Dollars ($23,600.00) representing lost wages and issued as a regular payroll check with appropriate taxes withheld and a W-2 issued at the end of the year; and

b. to "Kate Butler Law LLC" by check to 1509 Gilpin Avenue, Suite 3, Wilmington, Delaware 19806 in the amount of seventy thousand four hundred sixty six Dollars ($70,466.00) representing attorneys' fees and costs and issued with a 1099-MISC to Kate Butler LAW LLC.

3. Kennel's Retirement. DNREC agrees to rescind Kennel's termination and accept Kennel's retirement from DNREC's employment as of October 24, 2019.

4. Pension Credit. DNREC agrees to add one year of pension credit to Kennel's state service for the purposes of Kennel's pension calculator only.

5. Tax Implications. Kennel and Kennel's counsel are exclusively responsible for any tax implications or liability associated with the payments made pursuant to Paragraph 2. As required by law, the State of Delaware will issue the appropriate IRS Form(s) and 1099 for any payments made pursuant to Paragraph 2. Kennel acknowledges that he has not relied on any advice from DNREC or the State of Delaware concerning tax liability, if any, for the amounts to be paid in this Agreement.

6. Personnel File. DNREC agrees to remove Kennel's termination and pre-termination letters from his personnel file.

7. Release of Claims. In consideration of the benefits and promises memorialized in this Agreement, Kennel, including his respective heirs, legal representatives, agents, attorneys, successors and assigns, does voluntarily and knowingly agree to waive, release and forever discharge the State and DNREC, their respective heirs, legal representatives, political subdivisions, agents, attorneys, insurance providers, successors and assigns, and all persons, associations or corporations who are or might be claimed to be liable to Kennel from any and all claims, liability, demands, costs, charges, expenses, actions, causes of action, judgments, and executions, past, present and future, known or unknown, asserted or unasserted, whether or not ascertainable at the time of execution of the Agreement arising from or in any way related to Kennel's employment with DNREC. Further, Kennel recognizes and acknowledges that, by entering into this settlement and signing this Release, he is forever barred from filing any such claims in the future regarding the claims alleged in the federal lawsuit, in the grievances filed with DHR, or in the Charges of Discrimination filed with the EEOC and the DDOL or any other claims related to his employment with DNREC.

8. Dismissal of Grievance and Lawsuit. Within two (2) business days of this Agreement being executed, Kennel shall write separately to DHR, the EEOC, DDOL, and the United States District Court for the District of Delaware, copying DNREC, and advise those adjudicating bodies that the parties have executed an agreement resolving the respective matter pending before them, and that Kennel will be dismissing those pending matters with prejudice once he receives the Settlement Payment. Within two (2) business days of Kennel receiving the Settlement Payment, Kennel and DNREC shall submit a joint letter to DHR copying the Merit Employee Relations Board ("MERB") stipulating to dismiss with prejudice Kennel's two grievances against DNREC. Within two (2) business days of Kennel receiving the Settlement Payment, Kennel shall send a letter to the EEOC, copying DNREC, requesting that Charge Number 530-2020-01374 be dismissed with prejudice. Within two (2) business days of Kennel receiving the Settlement Payment, Kennel and/or his legal representative shall send a letter to DDOL, copying DNREC, requesting that Charge Number KEN022519/17C-2019-00274 be dismissed with prejudice. Within two (2) business days of Kennel receiving the Settlement Payment, Kennel and DNREC shall file a stipulation of dismissal with prejudice for the Lawsuit. Kennel warrants that he has no other outstanding claims against DNREC.

9. No Admission. This Agreement does not constitute admission of wrongdoing or liability by either Party. The Parties expressly deny any improper conduct or wrongdoing.

10. Who is Bound. The Parties are bound by this Agreement. Anyone who succeeds to the Parties' rights and responsibilities, such as their assigns and successors, are also bound. This Agreement is made for the Parties' benefit, as well as for the benefit of anyone who signs this Agreement, and all who succeed to their rights and responsibilities, such as their predecessors, successors, subsidiaries, parents, parent companies, affiliates, partners, officers, directors, shareholders, agents, representatives, servants, employers, employees, heirs, executors of their estates, and insurers.

11. Confidentiality of this Agreement. The Parties agree that the existence or substance of this Agreement shall be confidential and not disclosed, except to governmental authorities as required by law. The Parties to this Agreement further agree that the terms of the settlement are to be kept confidential to the extent permitted by law, provided, however, that: (1) Kennel shall be permitted to discuss the terms of this Agreement with his tax and/or legal representatives, subject to the condition that each such other person has read, understands, and agrees to be bound by the provisions of this section; and (2) the Parties recognize that DNREC may, from time to time as part of their official duties, be required to disclose information about this Agreement, and its terms and conditions, during the normal course of its business, including pursuant to a lawful request pursuant to the Freedom of Information Act, 29 Del. C. ch. 100 ("FOIA"). Such disclosures will not be considered to breach this provision. The Parties mutually agree they will not in any way publicize or cause to be publicized to any third party, or any news or communications media, the terms or conditions of this Agreement. If otherwise asked about this case and how it was resolved, the Parties shall respond as follows: "the case was resolved by agreement of the Parties and the terms and conditions are confidential," or a similar statement.

12. Non-Disparagement. The Parties specifically agree not to engage in any act, make any statement, nor engage in any other form of communication that is intended, or may reasonably be expected, to harm the reputation, business affairs, practices or performances of any other party about the facts and circumstances giving rise to all matters addressed in this Agreement.

13. Attorneys' Fees. Court costs, attorneys' fees, and expenses, including any costs, fees and expenses incurred in seeking to enforce this Agreement, shall be borne solely by the Party incurring the same. Neither Party shall be construed a "prevailing party" for purposes of fee shifting within the meaning of any federal, state, or local statute, court rule, or common law.

14. Severability. If any term or provision of this Agreement shall be held to be invalid or unenforceable for any reason, then such term or provision shall be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining terms or provisions hereof, and such term or provision shall be deemed modified to the extent necessary to make it enforceable.

15. Governing Law. This Agreement shall be governed by the laws of the State of Delaware, without regard to the conflict of law principles of any jurisdiction. Any and all disputes arising from or relating to this Agreement shall be brought in a court of competent jurisdiction in the State of Delaware and both parties waive any objections they may have with regard to the exercise of personal jurisdiction by such courts.

16. Entire Agreement. This Agreement constitutes the full and complete agreement of the Parties with respect to the matters contained herein. The Parties hereby acknowledge and agree that there are no promises, representations, terms, conditions, agreements, or other understandings, either verbal or written, relating to the subjects expressly addressed in this Agreement, and that all agreements among the parties hereto and pertaining to the subject matters hereof are hereby merged into and are expressly set forth in this Agreement. This Agreement may not be modified, altered, or changed except upon express written consent of both Parties.

17. Counterparts. This Agreement may be executed in one or more counterparts, all of which counterparts shall be deemed to be one instrument upon execution of a counterpart by all signatories to this Agreement, and shall be treated in all respects as a fully and duly executed original and enforceable instrument. In addition, copies of signed documents, including pdfs or other electronic versions thereof, shall be treated in all respects as originals.

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed this Agreement on the date(s) noted below:

[Signed] John Kennel, 6/4/20[21]
[Signed] Department of Natural Resources and Environmental Control, by Shawn M. Garvin, 6/22/21

[The PDF additionally reproduces the underlying Notice of Hearing from the Delaware Department of Labor, Lower Authority Appeals, Appeal Docket #11216295, dated April 16, 2021, regarding Kennel's pay authorization and unemployment-benefit eligibility. That notice is reproduced in the linked PDF and is administrative scaffolding rather than the substantive settlement.]