A few weeks ago, a newspaper raised an interesting question that I keep pondering. It's not keeping me up, but I suspect it has kept some other lawyers up at night, or at least a little restless over the last few weeks.
Let's say you are a public governmental body. You are a defendant in a lawsuit. Actually, you aren't alone. You discover that other public governmental bodies are also involved in lawsuits. Similar lawsuits with different attorneys.
The public governmental body's attorney weights the cost of litigation. it's not cheap. Balancing the cost of litigation against the cost of defense, the attorney decides that, in one case, it might make sense to simply settle this case. And so, the attorney proceeds to talk settlement and is successful, ending the litigation for the public body in that particular case.
And at that point, the dilemma arises. The public body knows, under the sunshine law, that it cannot close its settlement amount and agreement. What effect will the knowledge of its settlement have on other similar cases?
The paper wants the settlement agreement. it's a matter of public record under the sunshine law. The attorney for the public body is hesitating, weighing the legal issues, looking over his or her shoulder to see if other plaintiff attorneys are thinking the same thing.
And one cannot lose sight of the fact that it's still the public's dollars being spent in this case. You and I have the right to monitor how our tax dollars are being spent. And the facts in every case, no matter how similar, have some differences that can affect the value of the case.
It's an interesting debate. Still, the law is clear that it is the guiding principle of the state that the preference is for public body records to be open. And where there is no clear mandate for closure, that principle must control.