Keeping issues of legitimate public concern secret will only fuel suspicion
CONFIDENTIALITY clauses have long been part and parcel of the settlement of certain types of litigation. In particular, gagging clauses often feature in the resolution of employment disputes and matters where commercially sensitive information is at stake. In an unfair dismissals case, it is easy to see the advantages of confidentiality for both sides.
For the employee, a private settlement ensures they can move on without the fear of their reputation being tarnished by their employer. Similarly the company can avoid any mudslinging by the employee.
Quite often such disputes can be interpersonal in nature. Where no illegality is involved there is usually no wider public interest at stake. However, the same cannot be said for disputes involving members of the public and State bodies.
That is why the reported move by a number of State entities to conceal the outcome of lawsuits by insisting on confidentiality is a worrying development.
The legal advice charity FLAC has highlighted the issue in its annual report for 2018. It says a number of State bodies agreed to settle claims against them, but only on the basis that both the terms and the fact of the settlement were confidential.
Because of the confidentiality clauses, FLAC is unable to identify the cases in which this happened or reveal the issues involved.
While we can only speculate, it is safe to assume, given the nature of the legal charity’s work, that the matters were ones of significant public interest.
Last year alone, FLAC was involved in cases against a landlord who illegally evicted tenants, a healthcare provider who discriminated against two people with HIV, and a business which refused employment to a person with a disability on “heath and safety” grounds.
While State bodies may be as keen as any to safeguard their reputations, keeping issues of legitimate public concern secret is not the answer. It only dents confidence in the State and gives rise to suspicions that the alleged wrongs identified in lawsuits are not being righted.
In addition to this, as FLAC points out, keeping the outcomes of such cases secret makes it more difficult for other victims to obtain information which can assist their fight for justice.