This post shows the Federal Government’s strict policy against confidentiality clauses in settlement agreements.  They get it.  They understand that the government is the people and we, the people, have a fundamental right to know what agreements are made on our behalf.  The New Hampshire constitution reiterates that principle in article 8.

[Art.] 8. [Accountability of Magistrates and Officers; Public’s Right to Know.] All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.

Followers of this blog know that this gets to the very heart of the matter – lack of open government.  There is hardly a Selectman’s meeting that goes by that doesn’t have a non-public session.  Now we have entered a new phase where the Selectmen make multimillion dollar settlements and agree to keep the details from the public.

There are two possible reasons why the Wright Pierce settlement has a confidentiality clause:

1. The Selectmen asked for it because they don’t want to be accountable to the public.
2. Another party to the settlement insisted on it.
3. (Number 2 provides convenient cover for number 1.)

Number one just says that the Selectmen put themselves above the public.  While arrogant, it’s definitely the least offensive of the two possibilities and truth-be-told would be no big surprise.

The second possibility,  definitely the most egregious, is that the Selectmen sold our constitutional right to know.  That is the selectmen may have agreed to forfeit our right to know what happened in return for this cash settlement.  They didn’t forfeit any of their rights, but my rights and your rights, no problem.  There are a lot of things that the Selectmen can legitimately negotiate, but let me be as clear as I can about this.

The Selectmen do not have the authority to agree to forfeit my right to know in return for money.

An underlying principle of Right-to-Know is that it doesn’t matter why the public wants to know.  It is a basic right and part of the foundation of open and free government.  The burden is on the Town to prove disclosure will result in harm.  Simply claiming “confidential” is insufficient.  After 4 years and $1.4 million, the town’s case had some settlement value.  The Selectmen had no authority to sell the public’s right to know in order to increase that value.

The NH Supreme court has used the Federal Freedom of Information Act as a basis for interpreting the NH Right to Know law.  As you can see, the federal policy toward non-disclosure clauses in government settlement agreements is pretty unequivocal.

The Feds get it, the State gets it, how about you?  You may feel that it’s OK if they sold out your rights, but the real question is whether you think it’s OK if they sold out my rights.  It’s a slippery slope folks.