The story behind “Buying Silence”: How The Daily investigated NDAs
The Michigan Daily first became aware of the University of Michigan’s use of non-disclosure and non-disparagement agreements in December 2018 while reporting on alleged sexual misconduct. The existence of these agreements surfaced in the course of investigations into sexual misconduct allegations against University faculty members.
On Jan. 17, 2019, The Daily filed a Freedom of Information Act request for “any and all non-disparagement agreements reached between the University of Michigan and current or former employees … over the past ten years.”
The University denied this request, stating there were “no responsive records” to this request.
In an interview with The Daily, University spokesperson Rick Fitzgerald said the University does not consider separation agreements including non-disparagement provisions to be non-disparagement agreements.
“There is no such thing here as a non-disparagement agreement. It’s a common clause of these (settlement agreements) but we’re not aware of anything that is just an agreement that suggests ‘you and I should not talk trash about each other,’” Fitzgerald said. “It’s a common phrase, but there are no agreements just about that.”
By this point, The Daily had gained knowledge of two settlement agreements the University had offered former employees alleging sexual harassment. Due to legal and professional concerns related to these two agreements, The Daily remains unable to disclose more about these agreements.
Many portions of these agreements were identical. The clauses involving non-disclosure, non-disparagement and “gross lump sum” payments, in particular, were entirely identical. On Feb. 12, 2019, The Daily filed a FOIA request for settlement agreements reached by the University over the past ten years including one-time “gross lump sum” payments and contractual obligations for the employee not to disparage the University.
The University denied this request, claiming it was too broad. “Please describe more specifically the documents you are seeking, and we will be happy to proceed with responding to a request that sufficiently identities those records,” the University noted.
On March 20, 2019, The Daily filed five separate FOIA requests for settlement agreements reached by LSA, the Rackham Graduate School, the Ross School of Business, the College of Engineering and the Medical School containing the same specific provisions.
Fifteen days later, the University responded that the initial search for these agreements would cost $1,137 per school or college. This did not include the costs for duplication, review and redaction. The Daily was not willing to pay the $5,685 deposit to begin the processing of this request; the request eventually expired.
The Daily filed a Freedom of Information Act request on May 2, 2019 for settlement agreements containing the terms described above as “maintained by the Office of General Counsel.”
After a phone call with one of the University’s Freedom of Information Act officers, The Daily withdrew this request. It required extensive searches of University records and would still require expensive deposits.
Around this time, The Daily became aware of the existence of the names of two Senior Human Resources Representatives whose signatures frequently appear on these agreements: Roberta Young and Linda Dabrowski.
On May 15, 2019, The Daily filed a request for settlement agreements including the terms outlined above as signed by Roberta Young or Linda Dabrowski. This request was limited to agreements reached since Sept. 1, 2018.
Young did not respond to multiple emails from The Daily requesting comment. Dabrowski said Fitzgerald spoke on her behalf.
On Sept. 6, 2019, the University responded to The Daily’s Freedom of Information Act request. Records of nine settlement agreements totalling approximately $965,000 were turned over to The Daily.
The University’s response contained entirely unredacted settlement agreements. The names and UMID numbers of ten employees were released to The Daily, along with the names of their former co-workers, supervisors and attorneys, when applicable.
All 10 employees either did not respond to requests for comment from The Daily or declined to comment.
The Daily contacted 18 current University employees who signed these agreements or whose names appear in these agreements. All referred The Daily to University spokesperson Rick Fitzgerald.
A non-disclosure clause in the agreements said “the Parties agree to keep this Agreement confidential and will not disclose its contents to third parties, except as required by law.”
The wording of this clause, Fitzgerald said, is specifically designed to allow for release of these documents under the Freedom of Information Act. The University considers this act to be the means by which these documents are released to the public.
“The non-disclosure except for (Freedom of Information Act request) … is the process we use for under the law,” Fitzgerald said. “We look at it as … the state of Michigan’s process for disclosing information from public entities.”
In the article ultimately published by The Daily, the identities of all but the two Human Resources personnel and the University’s General Counsel, David J. Masson, were redacted. All three individuals whose identities were not redacted did not respond to The Daily’s email requesting comment for this article.
Employment attorney Sarah Prescott of Salvatore Prescott & Porter, PLLC, voiced surprise that The Daily was provided with unredacted copies of these agreements. She noted that she had never seen a Freedom of Information Act request as specific as The Daily’s May 15 request.
“I think for privacy purposes, when people settle with the state or with a state entity, they rely on the reality that few people are going to pick them out or pick out their names,” Prescott said. “I think what people are relying on is that it is so deeply unusual for that kind of FOIA to happen.”
The Daily soon noticed that University Senior Associate General Counsel and Chief Litigation Counsel David J. Masson’s name was listed in eight of these nine agreements. On Sept. 8, 2019, The Daily filed another Freedom of Information Act request for any and all records of settlement agreements including the terms as described above as maintained by the office of Masson.
The University responded to The Daily’s request with a requested deposit of $583. The Daily declined to pay this deposit.
While all the settlements that The Daily obtained through FOIA occurred before employees initiated potential lawsuits against the University, a search of litigation reports found on the Board of Regents website dating back to February 2005 revealed the existence of at least 26 post-litigation settlement agreements between the University and former employees.
Terms of these agreements are unclear, as is whether any of them contain confidentiality and non-disparagement clauses. It is also unclear how much money was paid by the University in these settlement agreements.
Of these 26 agreements, the only public reporting The Daily could find was that of Amy J. Wang’s lawsuit against the University of Michigan. This lawsuit that was resolved on Dec. 3, 2019. Though The Daily has declined to publish complete, unredacted settlement agreements, the full text of Wang’s settlement can be found in this article.
Samantha Small and Zayna Syed contributed reporting to this article.