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The most sought-after confidential document in recent Berkeley history is now public, but debate continues over an agreement which added a layer of secrecy to recent settlement talks between the City of Berkeley and the University of California. 

In response to a request under the California Public Records Act, the Daily Planet on Thursday received a copy of the confidentiality agreement signed April 22, five weeks before the city and university settled a lawsuit over future university expansion. 

For Berkeley, the settlement negotiations were a high-stakes enterprise. The city ended up dropping its demands for more information about the university’s long-range plan to add 2.2 million square feet of new space, and the deal fixed university payments for city services over the next 15 years. 

Mayor Bates had promised neighborhood leaders a chance to see a proposed settlement before the City Council voted on it, a practice which has not been common in Berkeley but has been part of settlements of lawsuits under the California Environmental Quality Act in other places. But the confidentiality agreement, which the parties claimed was itself confidential, changed the rules of the game. 

It was interpreted by city and university attorneys to bind both parties to secrecy and to prevent citizens from reviewing and commenting on the proposed settlement agreement before the council acted on it. 

A week before the settlement was approved, the university rejected a last-minute city request, made under pressure from residents, to waive the confidentiality agreement and make the deal public. 

Attorneys who have been critical of the city’s position offered a variety of interpretations of the agreement provided to them by the Daily Planet Thursday. 

“There is not one word in there that required the settlement agreement to remain confidential once the negotiation of it was complete; nothing there that unlawfully would prohibit the City Council from releasing it for public review before being voted on,” said Antonio Rossmann, a land-use attorney and lecturer at UC’s Boalt Hall. 

Rossmann charged that City Attorney Manuela Albuquerque “severely misread” the agreement and that UC Berkeley “had absolutely no right to invoke this agreement to keep the settlement from the public before the council vote.” He called the city’s position “a successful if not commendable frustration of public opinion.” 

Terry Francke, general counsel of the open government advocacy organization Californians Aware, took issue with the agreement, but concluded it effectively precluded the council from allowing public review of the settlement. 

“This document seems to me to set it up in a way that if UC wanted to they could walk away from the settlement if it were sunshined,” he said. 

State law does not require the city to disclose a proposed litigation settlement before voting on it. 

City attorney Manuela Albuquerque said that she sought the confidentiality agreement to ensure that all settlement related discussions couldn’t later be used against the city at a trial. Although the text of the agreement acknowledges that state law already prevents such disclosures from being used against parties at trials, Albuquerque said the confidentiality agreement afforded the city greater protection than offered under state law. 

“Statements made in public would not have been protected in any other way,” she said. “We wanted a wide ranging and candid discussion without it coming back to haunt us.” 

E-mails obtained by the Daily Planet show that councilmembers were alerted in March that the city was seeking such an agreement, although several said they never formally voted on signing one. The agreement document was signed for the city only by its outside counsel, Michelle Kenyon, not by any Berkeley elected official or staff member. 

Confidentiality agreements that keep parties from revealing offers made by their own attorneys during pre-trail settlement negotiations are common, according to Francke. But he questioned the interpretation by city and university lawyers that offers which had already been delivered from one side to the other during negotiations were confidential as well.  

“It’s a bit illusory,” he said, arguing that both sides are required to honor requests to disclose such documents. “They can’t simply agree to disregard the rules under the Public Records Act,” he said. 

“One wonders if this was created to leave the impression among certain city councilmembers that they had to keep their mouth shut,” said Francke. The agreement says that it “binds all employees, agents and representatives of the parties.” He said that it’s unclear whether that language applies to city councilmembers.  

Councilmember Dona Spring has said councilmembers received an e-mail informing them that commenting on the proposed settlement violated the confidentiality agreement. 

Albuquerque claimed councilmembers were bound by the agreement. She also said that state law protects the city from having to release any documents pertaining to ongoing litigation. 

Trying to get a copy of the agreement even after the settlement has been difficult. When Stephan C. Volker, an attorney for residents contemplating a lawsuit against the city over the settlement, requested a copy, he received a letter from Albuquerque telling him that the agreement was “not retained once the final settlement was concluded.” The Daily Planet CPRA request was made before the settlement, however. 

Albuquerque said a deputy city attorney later managed to find a copy that had been attached to a cover memo.  

In an effort to prevent controversy over future agreements, Mayor Bates and Councilmember Kriss Worthington introduced a proposal last month to require future confidentiality agreements dealing with major land use lawsuits to include provisions that allow for public review and comment before the council acts. 

Last week, however, the mayor temporarily withdrew the proposal, according to his aide Cisco DeVries, because he was concerned that the City Council could not legally set a policy which would bind future councils.