Secret Settlements with Government as a Defendant: Do FOI Laws Counteract Court Secrecy?

Abstract

Secret settlements of civil cases pose a serious threat to transparency and accountability when the government is a party. Ten states have banned the practice, but the practice continues in other jurisdictions. This study examines the extent to which Freedom of Information (FOI) laws counteract that secrecy. Relying on a report from the Federal Judicial Center, we identified sixty-seven cases in which a government defendant engaged in a secret settlement. Public records requests were then sent to the public entities that were party to such agreements.

The results of study demonstrate that FOI laws provide an effective counter-balance to government secrecy in 32.8% of the cases. The remainder was split between denials and non-responsiveness. A few of the denials were justified by the prevailing FOI laws, but the vast majority of denials were without legal basis.

The underlying cases in this study were often of public significance. The largest category of cases involved civil rights claims, often against police or correctional institutions. The secrecy surrounding the outcome of litigation against government is widespread and worrisome. Simple reforms to ban this practice and provide better information about government as litigant would be useful.