Washington, D.C. 20410-2000
April 27, 1995
MEMORANDUM FOR: All Field Office Directors, Office of Fair Housing and Equal Opportunity, Office of Investigations Staff
FROM: Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity, E
SUBJECT: Confidentiality of Conciliation Agreements
The purpose of this memorandum is two-fold:
1. to call your attention to a practice that many FHEO Field Offices have used increasingly - entering into "confidential conciliation agreements" -- and
2. to instruct you on the Department policy regarding that practice.
The general rule is that all conciliation agreements must be made public and that in every case information from conciliation results may be published in tabulation form. Both the statute at 810(b)(4) and the implementing regulations at 24 CFR 103.330 require conciliation agreements to be public. The regulations also allow both parties to the complaint to request non- disclosure. The Assistant Secretary determines whether disclosure is needed in order to further the purposes of the Fair Housing Act.
The Department holds the position that deference must be given to advancing the purposes of the Fair Housing Act. One significant way to further the purpose of the Act is to serve notice that engaging in discriminatory behavior has consequences. A second significant way to further the purpose of the Fair Housing Act is to alert individuals, who may experience discrimination at some time in the future, that they are entitled to remedies pursuant to the exercise of their rights under the Act. Disclosure of conciliation agreements is supportive of both these goals. Therefore, except in certain limited circumstances, each conciliation agreement must be fashioned with the understanding by all parties that it will be disclosed fully. The following statement should be included in each agreement: "This conciliation agreement is a public document subject to publication or disclosure."
Examples of circumstances that may result in partial disclosure or nondisclosure of a conciliation agreement:
1. A complaint alleges sexual harassment and the parties feel that public knowledge of the matter would be embarrassing or humiliating.
2. A complainant alleges discrimination based on a physical or mental disability and does not want identifying information disclosed because of the nature of the disability.
3. A complainant resident of a shelter for battered women who may be concerned about her safety if the agreement were made public.
The Process for Modifying Disclosure Authorization
If FHEO Field Office staff believe that all or portions of a conciliation agreement should not be disclosed, the steps below must follow:
1. Develop alternative language for the agreement. The alternative language should address that portion(s) of the agreement the party(ies) believe it is necessary to keep confidential. Staff may consider the input of either one or both parties to the complaint, as appropriate.
2. Develop language as necessary, to describe how the agreement will (or will not) be affirmatively publicized by the Department.
3. Contact Office of Investigations staff (Merilyn Brown) via cc:mail for review and comment on the proposed language.
Under no circumstances should a conciliation agreement between the Secretary and a respondent in a Secretary-Initiated investigation be confidential.