Could a South Carolina school district withhold a settlement agreement because it promised confidentiality?

Plain-English summary

After a former employee settled a lawsuit with the Beaufort County School District, a reporter asked to review the agreement. It contained a confidentiality clause. The AG concluded that the clause could not displace South Carolina's Freedom of Information Act. The district had to disclose information in the settlement that was not covered by a statutory exemption.

The opinion treated settlement documents held by public agencies as generally public records. Any applicable privacy or other exemption had to be construed narrowly; exempt information could be separated while the rest was released. The AG also noted a court rule barring a court from sealing a settlement agreement involving a public body or institution.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a confidentiality promise let the district refuse a FOIA request for the settlement? A: No. The AG said such a promise did not authorize ignoring FOIA's disclosure requirements.

Q: Did every line of the settlement have to be released?
A: The opinion allowed for specific statutory exemptions, but said exempt material should be separated from the nonexempt material, which had to be disclosed.

Q: Could a court seal a public body's settlement agreement? A: The AG quoted a court rule that barred court approval of sealing a settlement agreement involving a public body or institution.

Background and statutory framework

The opinion applied FOIA's broad definition of public records to a school district's settlement. It relied on an earlier AG opinion concerning public-money settlements and the rule requiring narrow construction of disclosure exemptions. It then considered the agreement's confidentiality clause and the court rule on sealing public-body settlements.

Citations and references

The opinion discussed section 30-4-15 and section 30-4-40, Rule 41.1(c), SCRCP, and Burton v. York County Sheriff’s Department.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-7-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/washington-f-11-7-07-os-8489-foia-beaufort-county-school-district-board-of-education.pdf

Original opinion text

November 7, 2007

Fred Washington, Chairman
Beaufort County Board of Education
Post Office Drawer 309
Beaufort, South Carolina 29901-0309
Dear Mr. Washington:
We received your letter requesting an opinion on behalf of the Beaufort County School District (the “District”) Board of Education (the “Board”) concerning the South Carolina Freedom of Information Act (“FOIA”). You provided us with the following information:
[A] former employee, Laverne Libby Davis, filed a lawsuit against the District and Herman Gaither, the former Superintendent. The District’s insurance carrier . . . retained legal counsel to represent both Mr. Gaither and the District in the litigation. Following mediation, the attorneys for Dr. Davis, the District, and Mr. Gaither agreed to settle the case . . . The Settlement Agreement, signed by the attorneys, included a confidentiality provision, specifically stating that “[t]he Parties and their respective Attorneys shall keep the specific terms of the Settlement Agreement confidential.” You informed us that after the settlement of the case, the District received a FOIA request from Jonathan Cribbs, a reporter, “asking for an opportunity to review the Settlement Agreement.” You state: The District does not have any objection to providing the Settlement Agreement to Mr. Cribbs in response to his request; however, the Board is concerned that if it does so, the District will be in violation of the Settlement Agreement signed by the attorneys and potentially subject to another lawsuit by Dr. Davis. Therefore, the Board is asking for the opinion of the South Carolina Attorney General as to the obligations of the District in light of the FOIA and the written Settlement Agreement. In addition, you informed us that “the Board’s attorney has informally advised that a court could conclude the Settlement Agreement is a public record and subject to disclosure under the FOIA.”

Mr. Washington
Page 2
November 7, 2007

Law/Analysis
In determining whether settlement documents are subject to disclosure under FOIA, we must first keep in mind the purpose of FOIA as stated by the Legislature in section 30-4-15 of the South Carolina Code (2007). The General Assembly finds that it is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy. Toward this end, provisions of this chapter must be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings. As the Court of Appeals summarized in Burton v. York County Sheriff’s Department, 358 S.C. 339, 347, 594 S.E.2d 888, 892-93 (Ct. App. 2004) (citations and quotations omitted): South Carolina’s FOIA was designed to guarantee the public reasonable access to certain activities of the government. The FOIA creates an affirmative duty on the part of public bodies to disclose information. The purpose of the FOIA is to protect the public by providing for the disclosure of information. The FOIA is remedial in nature and should be liberally construed to carry out the purpose mandated by the legislature. Furthermore, “consistent with FOIA’s goal of broad disclosure, the exemptions from its mandates are to be narrowly construed.” Id. at 348; 594 S.E.2dd at 893. Section 30-4-30(a) of the South Carolina Code (2007) indicates a public body’s obligation to disclose certain information as follows: Any person has a right to inspect or copy any public record of a public body, except as otherwise provided by § 30-4-40, in accordance with reasonable rules concerning time and place of access. The definition of “public body” provided in section 30-4-20 of the South Carolina Code (2007) specifically makes reference to school districts. Thus, we must only determine whether a settlement agreement entered into between the District and Dr. Davis is a public record. Section 30-4-20(c) defines public records as including “all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.”

Mr. Washington
Page 3
November 7, 2007

In an opinion dated April 11, 1988, we considered whether “out-of-court settlement documents for a lawsuit wherein public funds have been expended by a government agency are ‘public records’ subject to disclosure pursuant to the Freedom of Information Act.” Op. S.C. Atty. Gen., April 11, 1988. In that opinion, we first acknowledged that settlement documents maintained by a public agency “generally come within the expansive statutory definition of ‘public records’ provided in Section 30-420(c); thus, generally these documents are subject to disclosure pursuant to Section 30-4-30 unless the information contained in the settlement documents is specifically exempt from disclosure by one of the exceptions prescribed in Section 30-4-40(a).” Id. However, we noted that information contained in a settlement may be exempt from disclosure under FOIA for example if the settlement documents identify a party as a mental health patient or contain information personal in nature that if disclosed would be an unreasonable invasion of personal privacy. Id. Nonetheless, we stated “the specific statutory exemptions should be narrowly construed in order to give full effect to the general remedial purpose of disclosure” and that should some information in the settlement agreement fall under one of the exemptions, “the public custodian must separate the exemption and non-exempt material and make the non-exempt material available to the public.” Id. Finding no cases in South Carolina dealing with settlement documents and FOIA, we looked to the law of other jurisdictions. Id. We found California and West Virginia court decisions holding that settlement documents maintained by public bodies are subject to disclosure under those states’ freedom of information acts. Id. Thus, we concluded out-of-court settlement records maintained by a public agency, where the settlement involves the expenditure of public monies, are ordinarily ‘public records’ as that term is statutorily defined in the Freedom of information Act. Thus, these documents are generally disclosable to the public unless the information contained in the documents is exempted from disclosure by one of the specific statutory exceptions provided in the Act. Id. We cautioned that while non-judicial records maintained by a court are subject to FOIA, we have some reservations with regard to judicial records. Id. Ultimately, we surmised that these types of records are generally subject to FOIA, but we also recognized that “a court has an inherent authority to seal the records in an appropriate case.” However, in 2003, after the issuance of this opinion, the Supreme Court amended the South Carolina Rules of Civil Procedures dealing with the sealing of documents and settlement agreements. As part of these amendments, the Court specifically provides that “[u]nder no circumstances shall a court approve sealing a settlement agreement which involves a public body or institution.” Rule 41.1(c), SCRCP. Thus, the sealing of settlement documents in cases involving public bodies is prohibited. Based on the analysis provided in our 1988 opinion, we remain of the opinion that settlement documents are generally public records subject to disclosure under FOIA. While certain information contained in the settlement documents may be exempt from disclosure under section 30-4-40, the

Mr. Washington
Page 4
November 7, 2007

District must keep in mind that these exemptions are narrowly construed and should some information contained in the settlement documents in question qualify for one of the exemptions, the District must separate the exempt and non-exempt information and make the non-exempt information available to the requester. Furthermore, we do not believe the fact that a settlement agreement contains a confidentiality provision gives authority to the District to ignore the provisions of FOIA. T hus, despite any such provision contained in the Settlement Agreement, the District must disclose information not exempt under section 30-4-40. Although we are not aware of whether the settlement in question was sealed by court order, given the rule promulgated by the Supreme Court in 2003, we can imagine that in this instance a court is prohibited from sealing the Settlement Agreement because it involves the District, which is a public body. Therefore, we do not anticipate that action of the court would prevent disclosure of the settlement agreement under FOIA. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General