On November 22, 1999 and December 10, 1999, the Complainant presented his third complaint, the subject of 2000-CAA-11, alleging that the Respondent declined to promote him because of the October 1999 article and his contact with Congress. According to the Complainant, the Respondent also interfered with his use of a program in violation of a previous settlement agreement. Following the failure of an investigation to find discrimination, the Complainant requested a hearing with OALJ on April 13, 2000.

   After some delay associated with the parties' discovery activities in 1999- CAA-12, Associate Chief Administrative Law Judge Thomas Burke granted the Complainant's Motion to Consolidate the three complaints for one hearing and assigned the hearing to me in June 2000. Pursuant to a Notice of Hearing, dated June 20, 2000, I set a hearing date of November 13, 2000 in Washington D.C.

   In the settlement agreement, dated December 20, 2000, the parties settle all three complaints. As part of the agreement, the Complainant agrees to withdraw his complaints with prejudice and the parties agree to a dismissal of the three complaints with prejudice. The parties also request that the specific terms of the settlement agreement remain confidential consistent with the Freedom of Information Act and the Privacy Act.

   In reviewing a settlement agreement associated with complaints filed under the employee protection provisions of Federal environmental statutes, I must ensure the terms of the agreement are fair, adequate, reasonable and not against public interest. See Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 556 (9th Cir. 1989); Fuchko and Yunker v. Georgia Power Co., 89-ERA-9, 89-ERA-10 (Sec'y Mar. 23, 1989) and Heffley v. NGK Metals Inc., 89-SDW- 2 (Sec'y Mar. 6, 1990).

   With this standard of review in mind, I first note both parties were ably represented by counsel and the Complainant represents his understanding of the agreement's provisions and voluntary accepts the settlement. The parties also warrant that the agreement constitutes the entire, and only, settlement with respect to the Complainant's claims. See Biddy v. Alyeska Pipeline Service Co., 95-TSC-7 (ARB Dec. 3, 1996).

   In paragraph 5, the parties agree to keep the terms of the settlement agreement confidential. The Complainant will not disclose or discuss the contents of the agreement with any person other than his attorney, financial counselors, family members and agency employees implementing the terms of the agreement. Correspondingly, the Respondent agrees to treat the agreement under the provision of the Privacy Act, 5 U.S.C. §552 (a). This confidentiality provision generates two observations.

   First, a confidentiality provision which acts as total bar against disclosure to government agencies is against public interest. See Brown v. Holmes & Narver, 90-ERA-26 (Sec'y May 11, 1994). However, the Secretary has interpreted confidentiality provisions similar to the one in the agreement before me as not restricting disclosure of the agreement's terms where required by law. See Rondinelli v. Consolidated Edison Co. of New York, Inc., 91-CAA-3 (Sec'y Apr. 10, 1992), Bragg v. Houston Lighting & Power Co., 94-ERA-38 (Sec'y June 19, 1994), and Biddy v. Alyeska Pipeline Service Co., 95-TSC-7 (ARB Dec. 3, 1996). In light of these previous Secretarial decisions, I find the confidentiality provision does not function as a prohibition against lawful disclosure.

   Second, the parties' submissions, including the settlement agreement, become part of the record of the case and are subject to the Freedom of Information Act ("FOIA"or "Act"), 5 U.S.C. §552 (1988). FOIA requires Federal agencies to disclose requested records unless they are exempt from disclosure under the Act. If a FOIA request is made for the settlement agreement, the U.S. Department of Labor will have to respond and decide whether to exercise its discretion to claim any applicable exemption. See Debose v. Carolina Power and Light Co., 92-ERA-14 (Sec'y Feb. 7, 1994) and Darr v. Precise Hard Chrome, 95-CAA-6 (Sec'y May 9, 1995)..

   In the agreement, the Complainant waives his right to pursue claims against the Respondent that arose prior to the document's execution. Because this promise does not affect the complainant's ability to pursue future claims and complaints, the waiver does not adversely affect public interest. See Ryan v. Niagara Mohawk Power Corp., 88-ERA-7 (Sec'y Jan. 25, 1990)

   The Respondent promises to pay the Complainant's attorney an amount for professional services and costs that is double the compensatory damages recovery the complainant will receive under the agreement. Although my review of a settlement does not involve the approval or disapproval of an attorney fee (See Tinsley v. 179 South Street Venture, 89-CAA-3 (Sec'y Aug. 3, 1989), the amount and relative proportion of the attorney fee in this case require some evaluation from a public interest perspective. In that regard, although the Complainant's recovery is only half of the amount of his attorney's fee, the settlement recovery is still a substantial sum and represents a significant financial benefit for the Complainant. Also, the Complainant's attorney, starting in February 1999, represented his client in three separate complaints settled by this agreement. During the procedural course of these complainants, Complainant's counsel certainly conducted extensive discovery, submitted at least one motion to compel discovery, prepared a response to the Respondent's Motion for Partial Summary Judgment, and negotiated the comprehensive settlement with the Respondent's attorney. Finally, since the Secretary has approved settlement agreements with significantly greater disproportionate amounts, the sum of the attorney fee in this settlement is not necessarily out of line. See Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y Aug. 16, 1994 and Sec'y Sep. 11, 1997) (attorney fee five times the Complainant's recovery). Consequently, I do not find a sufficient basis, relating to the monetary amounts in the settlement, for rejecting the agreement on public interest grounds.

   Upon my review of the terms of the settlement agreement, I find they are fair, adequate, reasonable and not contrary to the public interest. Accordingly the three complaints, captioned 1999-CAA-12, 2000-CAA-10, and 2000-CAA-11, are DISMISSED with prejudice.

SO ORDERED:

      RICHARD T. STANSELL-GAMM
      Administrative Law Judge

Washington, D.C.