State says Dover couldn’t refuse to release a public document just by deeming it ‘confidential’

Lateef Dickerson

DOVER — In a failed attempt to distance itself from a $300,000 lawsuit payment, Dover’s city administration argued that no official signed a settlement agreement with a man who suffered a jaw-breaking kick from a police officer in 2013.

The city administration acknowledged it contributed a $15,000 insurance deductible toward the agreement paid to plaintiff Lateef Dickerson in December 2015, but it declined for more than a year to disclose further payment made by its policy issuer Travelers Insurance Company.

Last week, the Delaware Department of Justice ruled that the city violated the Freedom of Information Act when refusing to release full settlement details upon media requests.

A confidentiality agreement in the settlement was over-ridden by its status as a public document, according to the DOJ when citing past state rulings.

“Indeed, exempting a document from the definition of public record merely because its creator has deemed it ‘confidential’ ‘would subvert FOIA’s purpose of making government accountable.

“As such, the City’s alternative argument that the settlement agreement is shielded from public disclosure by virtue of a confidentiality provision fails,” the DOJ concluded.

Dover quickly released the entire agreement after the ruling, which was officially requested by The Associated Press on Jan. 5, 2016.

The Delaware State News reported a settlement had been reached on Dec. 3, 2015, but received no further details beyond the insurance deductible paid by the city.

At the time, city officials pointed media to the ACLU of Delaware (who filed the lawsuit on behalf of Mr. Dickerson) and Travelers Insurance Company in a quest for more information. Both entities would not release details when asked.

The officer who administered the kick — Cpl. Thomas W. Webster IV — was found not guilty of assault and agreed to a $230,000 separation package from the City of Dover to leave the Dover Police Department.

In explaining its decision regarding a FOIA violation, the DOJ pointed to attorney Daniel Griffith’s role as retained by Travelers to represent city interests.

The DOJ also discounted Dover’s contention that no municipal representative negotiated, signed or possessed the settlement, thus severing it from public disclosure responsibility.

Because Mr. Griffith represented the city’s interests during the negotiation, the DOJ said Dover was tied to the agreement as part of the public’s business.

Also, the insurance policy defined a settlement is signed by the company, claimant (City of Dover in this case), and a claimant or his or her representative.

“ … it is clear that the City had a right — if not an obligation — to receive and review the settlement agreement in order to justify payment of or reimbursement to Travelers for any deductible associated with the litigation,” Deputy Attorney General Michelle Whalen wrote in the opinion for public disclosure.

“At the very least, we believe that the City was legally entitled to a copy of the settlement agreement and the City has failed to persuade us otherwise.

“The fact that the City may have failed to exercise that right does not change our analysis.”

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