Overview
Of the 21 state agencies under audit, we found that 20 lacked documented internal policies on the use of confidentiality language within state employee settlement agreements. OIG was the only agency to provide a policy that described when the agency would consider the inclusion of confidentiality requests as part of a settlement agreement. This policy memo was dated October 2024 and does not cover the entire audit period.
During the audit, we were able to identify at least 80 state employee settlement agreements that included some form of confidentiality language, limiting the discussion or disclosure of the purpose for or terms of the settlement agreement. When asked for a rationale or an explanation behind the confidentiality language, agencies did not provide us with adequate support to justify the inclusion of this language in individual settlements. See below for examples of common types of confidentiality language used in state employee settlement agreements that we found during our audit:
- Confidentiality: “Agrees to keep terms and discussions of settlement and release confidential.”
- Non-disclosure: “The Complainant agrees to keep confidential, and not disclose or communicate, the contents and/or nature of this Agreement to any other parties.”
- Non-disparagement: “Claimant shall refrain from making disparaging remarks about the Department and its leadership team.”
- Not for publication: “This Settlement Agreement is not for publication, and it is without precedent or prejudice to any other current or future matter between the parties. This Settlement Agreement cannot be introduced in any other forum except to enforce its terms.”
The table below lists the types of confidentiality language reported in the reviewed state employee settlement agreements.
| Type of Language Used | Number of Settlements | Number of Agencies |
|---|---|---|
| Confidential | 20 | 8 |
| Confidential, non-disparagement | 19 | 9 |
| Confidential, not for publication | 23 | 5 |
| Confidential, not for publication, non-disparagement | 7 | 4 |
| Non-disparagement | 7 | 5 |
| Not for publication | 4 | 2 |
| Grand Total | 80 |
While some agencies explained their general use of confidentiality language, they were not able to produce any documentation or evidence that we could review, and instead gave the following explanations regarding how they entered into these agreements:
- language is included on a case-by-case basis;
- language is included as part of union practices/bargaining agreement;
- language is mutually agreed upon or included as a mutual benefit; and
- documentation explaining the reasoning was not provided because of attorney-client privilege.
By not having a documented policy on the use of confidentiality language in state employee settlement agreements, there is a risk that confidentiality language may be abused to cover up harassment; discrimination; or other inappropriate, unlawful, or unethical behaviors, potentially allowing perpetrators to continue to remain in their positions and engage in further inappropriate, unlawful, or unethical behavior. This would be an inappropriate use of taxpayer dollars. Impacted employees may also not know that non-disclosure terms may be unenforceable under Public Records Law. If agencies do not have a transparent and accountable process to guide the use of non-disclosure, non-disparagement, or similarly restrictive clauses in state employee settlement agreements, then they cannot ensure that state employee settlements are handled in an ethical, legal, or consistent manner. We recognize that the lack of documented policies does not indicate, in and of itself, the inappropriate use of taxpayer dollars. It does, however, indicate a problematic lack of transparency and accountability that would prevent the public from knowing one way or another. This prevents the public from clearly seeing the issue, which could be better or worse than people suspect.
Further, a lack of a documented policy on the use of confidentiality language creates the risk that confidentiality language could be used to protect or obscure from public view repeated instances of poor management or inappropriate or unlawful behavior at agencies of government. This perpetuates the risk that public employees may continue to face abusive or harassing treatment from perpetrators and that the taxpayers may be required to pay for the costs of settlements or litigation in connection with repeated problematic behavior.
Authoritative Guidance
GOV’s Executive Department Settlement Policy established the following requirement regarding public records and the use of non-disclosure agreements:
- 3. Settlement Agreements are Public Records.
Under established case law, settlement agreements are public records but may be subject to limited redactions for personnel information of a highly personal nature under G. L. c. 4, § 7, cl. 26(c). Absent unusual privacy concerns, settlement agreements should include language providing that the agreement will be considered a public record in its entirety. Agencies may consider settlement language agreeing to limited redactions only when: (i) required by statute; or (ii) the language is requested by a claimant to address a significant privacy or safety concern, the language is approved by both the General Counsel of the Agency and the General Counsel of the Executive Office, and the claimant’s preference for the language is memorialized in the settlement agreement. . . .
- 4. Nondisclosure Agreements are Prohibited.
Since 2018, the policy of the executive department has generally precluded the use of nondisclosure agreements in litigation settlement agreements, and this policy has continued under the Healey-Driscoll Administration. Non-disclosure agreements erode public trust and, by their terms, are largely inconsistent with the transparency requirements of the public records law. Accordingly, nondisclosure agreements (NDAs) in settlement agreements are prohibited and shall not appear in executive department settlement agreements.
For purposes of this Executive Department Settlement Policy, a “nondisclosure agreement” is a term or condition in a settlement agreement that would prevent a claimant from disclosing or discussing the underlying facts and circumstances of their claim or the existence of a settlement.
The US Government Accountability Office’s Standards for Internal Control in the Federal Government, known as the Green Book, sets internal control standards for federal entities. The Green Book defines internal controls in the following way:
Internal control comprises the plans, methods, policies, and procedures used to fulfill the mission, strategic plan, goals, and objectives of the entity. Internal control serves as the first line of defense in safeguarding assets. In short, internal control helps managers achieve desired results through effective stewardship of public resources. . . . Management should design control activities to achieve objectives and respond to risks. . . . Management should implement control activities through policies.
While state agencies are not required to follow this policy, it is a best practice.
CTR’s “Settlements and Judgments” policy, dated January 10, 2022, and effective during the audit period, stated,
Confidentiality Provisions May be Unenforceable. Departments are put on notice that confidentiality language mandating that a settlement or settlement terms be kept confidential may not be enforceable unless the claim or certain provisions in the claim are exempted from disclosure under statutory, personnel file or privacy exemptions under the Public Records Law. The Public Records Law, G.L. c. 4, §. 7, 26 (a) and (c) exempt records from disclosure that are statutorily prohibited from disclosure, are part of a personnel file or are of a highly personal nature.
According to the Secretary of the Commonwealth’s A Guide to Massachusetts Public Records Law,
Public interest in the financial information of a public employee outweighs the privacy interest where the financial compensation in question is drawn on an account held by a government entity and comprised of taxpayer funds. Additionally, the disclosure of the settlement amount would assist the public in monitoring government operations. Therefore, exemptions to the Public Records Law will not operate to allow for the withholding of settlement agreements as a whole. However, portions of the agreements, and related responsive records, may be redacted pursuant to the Public Records Law.
Reasons for Issue
During interviews, officials from the state agencies under audit explained that they were not aware of any written policy or guidance on the use of such language or forbiddance from doing so. Without documentary evidence, we could not determine whether the use of these clauses was in the public’s interest or if they were used to obscure from public view alleged harassment, discrimination, or retaliation.
Recommendation
The 20 agencies included in this finding should establish and implement policies and procedures regarding the use of confidentiality language in state employee settlement agreements that are, at a minimum, in line with the Executive Department Settlement Policy established by GOV on January 27, 2025.
Auditee’s Response: AGO
This finding is factually inaccurate as to the AGO. As described on . . . the Draft Audit Report, “We noted that AGO provides written guidance to all agencies’ counsel, including the special assistant attorney generals serving as agency-retained private counsel representing the Commonwealth in court proceedings. AGO explained that these guidelines prohibit the use of non-disclosure agreements in settlements but could not provide these guidelines to us because of attorney-client privilege.” The fact that the AGO could not provide attorney-client privileged documents to OSA does not mean that it has no documented policy. As the AGO told the audit team, OSA’s own General Counsel is a special assistant attorney general and as such has a copy of the guidelines with that provision.
The AGO also notes that it does not allow non-disclosure provisions in settlement agreements because such provisions would be ineffective under Massachusetts law. As an agency comprised of lawyers and charged with establishing a consistent legal policy for the Commonwealth, the AGO is not required to have documented policies and procedures reiterating every legal provision that applies to our work; lawyers of the AGO are governed by the Massachusetts Rules of Professional Conduct, which requires us to stay current with the law.
Auditor’s Reply: AGO
OSA agrees that AGO did not use confidentiality language during our review of AGO’s state employee settlement agreements, according to our findings. We cannot verify, however, that AGO’s internal guidance disallows non-disclosure provisions because AGO refused to disclose supporting documents to the audit team, citing attorney-client privilege. This audit finding is simply about whether policies and procedures exist and not whether confidentiality agreements have been used. In order to follow Generally Accepted Government Auditing Standards, our audit team needs to be provided with some supporting evidence. We understand that policies may exist in AGO, but we cannot confirm that they exist in this audit report unless AGO is willing to share them with the audit team. The misapplication of attorney-client privilege with respect to this policy has interfered with our ability to verify the existence of such a policy for the purposes of this audit. Again, the Governor of this Commonwealth, in fact and indeed, publicly released a policy regarding this very issue regarding the use of confidentiality language. The Senate also has a policy, accessible to the public, surrounding the use of confidentiality clauses. We believe these publicly accessible policies better serve the public than those that are kept from public view and encourage AGO to make these policies available for inspection so that our team is able to give appropriate acknowledgement for having such a policy if such acknowledgement is due.
Auditee’s Response: Massachusetts Community Colleges (BCC, BHCC, CCCC, GCC, MCC, and STCC)
BCC, BHCC, CCCC, GCC, MCC, and STCC responded using the same language as follows:
[The College] refers to its Response to Finding 1 and incorporates by reference the contents here, which, in brief, documents that the College follows CTR’s published settlement policies, procedures, and regulations, as well as all applicable collective bargaining agreements and employee handbooks, and seeks privileged legal advice regarding settlements with employees. The College’s CFO and its General Counsel (and, where applicable, other entities such as AGO) review and approve all monetary settlements utilizing the S&J fund overseen by CTR, as they are direct signatories to the S&J Application.
While OSA suggests having confidentiality language in agreements risks unlawful behavior, it does not provide a shred of support for such an assertion as it pertains to [the College’s] settlements. To the extent that the College may reference confidentiality in some of its agreements, it does so in compliance with the S&J Policy, which makes clear that settlement agreements are matters of public record. As previously discussed with OSA, often the request for confidentiality comes from the claimant, whether an employee or union, and not from the College. Further, certain language regarding the confidentiality of settlement discussions and resolutions reached at mediations is required by agencies such as MCAD.
The College has and will continue to work with its legal counsel to ensure compliance with CTR’s legal authority related to settlements, including that such employee settlement agreements are handled in an ethical, legal, appropriate, and consistent manner, and which will address confidentiality and non-publication concerns raised in the Audit Report.
Auditee’s Response: RCC
RCC disagrees with this finding.
The College has consistently reviewed confidentiality or non-disclosure clauses on a case-by-case basis, with counsel and only includes them where legally permissible under Massachusetts Public Records Law and consistent with the Comptroller’s Settlement and Judgment Policy. Often, requests for confidentiality originate from claimants themselves, not from the College.
OSA’s assertion that lack of a written confidentiality policy presents a risk of “abuse” is speculative and unsupported. RCC follows all state legal and ethical obligations and remains committed to developing written guidance to reflect these established practices.
Auditor’s Reply: Massachusetts Community Colleges (BCC, BHCC, CCCC, GCC, MCC, RCC, and STCC)
With respect to this portion of the Massachusetts community colleges’ response:
While OSA suggests having confidentiality language in agreements risks unlawful behavior, it does not provide a shred of support for such an assertion as it pertains to [the College’s] settlements.
As noted in Appendix A, here is some of the support:
- In 2024, GCC used a confidentiality clause concealing allegations of discrimination and retaliation on the basis of disability.
- In 2022, GCC used a confidentiality clause concealing allegations of sexual harassment, assault, discrimination, retaliation, emotional distress, and unlawful discharge.
- In 2021, BCC used a confidentiality clause concealing allegations surrounding a state employee settlement regarding an MCAD complaint.
- In 2020, STCC used a confidentiality clause concealing failure to reasonably accommodate a disability, discrimination, and retaliation.
The use of confidentiality clauses in these instances concealed allegations of unlawful, unethical, and inappropriate behavior. We hope this has helped provide the shred of support referenced in the Massachusetts community colleges’ response. We strongly recommend that all agencies under audit implement our recommendations to reduce risk, protect taxpayer dollars, and improve protections for the Commonwealth and its workforce.
Auditee’s Response: BSU
Bridgewater State University has an understood procedure with respect to considering use of confidentiality language in separation and settlement agreements. During an audit meeting on Wednesday, November 6, 2024, the University provided a verbal explanation of its procedures. . . .
It should be noted that separation or settlement agreements that include confidentiality language also include language that makes clear the terms of the agreement that will be regarded as confidential unless there is a legal requirement, process, or request that requires otherwise. To be clear, all confidentiality provisions are limited and are not absolute. As evidence that confidentiality language is not absolute, agreements that include reference to confidentiality also note that the settlement or a redacted version of the settlement may be deemed public record. The University maintains that the inclusion of language that makes clear that confidentiality does not supersede compliance with legal requirement, process, or request and that the agreement may be regarded as a public record mitigates any concern that “. . . confidentiality language could be used to protect or obscure from public view repeated instances of poor management or inappropriate or unlawful behavior at agencies of government (page 35).”
Under the Authoritative Guidance section, the OSA provides language contained in the State Comptroller’s Settlements and Judgments Policy, dated January 10, 2022. The language included in the State Comptroller’s Settlement and Judgment Policy states that “Confidentiality Provisions may be Unenforceable” and explains the requirements/limitations under Public Records Law. The confidentiality language included in the University’s separation and settlement agreements is consistent with the Authoritative Guidance provided in the State Comptroller’s Settlement and Judgment Policy.
The Reasons for Issue section states “. . . agencies under audit explained they were not aware of any written policy or guidance on the use of such language or the forbiddance from doing so. And that “Without documentary evidence . . .” (page 37) the OSA could not determine if the use of confidentiality language was in the public’s interest or obscuring the public from employee wrongdoing. To be clear, during its performance audit, the OSA also found no documented evidence precluding a state agency from use of confidentiality language and/or the existence of any guidance issued to state agencies during the relevant time period regarding the use of confidentiality language that justifies this Detailed Audit Finding.
The Reasons for Issue section also infers that the confidentiality language used in agreements may be used “. . . to obscure from public view alleged harassment, discrimination, or retaliation (page 37).” This is a subjective view of the use of separation or settlement agreements which makes assumptions about their use. Most agreements requested of Bridgewater State University by the OSA were agreements for separation of employment. These agreements were not the result of alleged harassment, discrimination, or retaliation, as is made clear through a review of the applicable agreements provided to the OSA during its performance audit. Finally, as explained during the November 6 meeting, the University emphasizes that the inclusion of confidentiality language is often at the request of the employee/claimant.
Auditor’s Reply: BSU
OSA agrees that BSU includes language in its employee settlement agreements that is in line with CTR’s Settlement and Judgments Policy. However, OSA believes it is inappropriate to use taxpayer dollars to fund confidentiality agreements that may conceal allegations of discrimination and other misconduct. See Appendix A for BSU’s and other agencies’ instances where confidentiality language has been used to conceal allegations of unlawful behavior, such as discrimination. BSU should use GOV’s Executive Department Settlement Policy as an example for enhancing its protocols into documented internal policies regarding the use of confidentiality language.
Auditee’s Response: MCLA
The Report finds that the College lacks a written policy regarding the use of confidentiality language within employee settlement agreements. However, the absence of a “written policy” does not suggest inconsistencies in the use of confidentiality language, much less ill will. In most cases, as previously stated, the inclusion of a confidentiality clause is the result of the negotiation with an employee or the employee’s representative over the terms of the settlement agreement. Further, when confidentiality is included in a settlement agreement, language is included to make clear that confidentiality is not absolute and is subject to state and federal legal limitations. The confidentiality language included in settlement agreements is almost always “limited,” and the College strives to make clear in its agreements where such language is included that, regardless of the presence of any language regarding confidentiality or non-disclosure language, the agreement may be subject to a public records request and a “lawful request” or “legal process” would provide sufficient justification for disclosure.
The College does not dispute that a settlement may be subject to a public records request, but emphasizes that certain information may be redacted from settlement documents. The College maintains that the inclusion of language that makes clear that confidentiality does not supersede compliance with legal requirement, process, or request and that the agreement may be regarded as a public record mitigates any concern that the language could be used to protect or obscure from public view repeated instances of poor management or inappropriate or unlawful behavior at the College.
Auditor’s Reply: MCLA
MCLA acknowledges that it does not have a written policy on the use of confidentiality language in employee settlement agreements. OSA agrees with MCLA that certain information can be redacted from settlement documents, but that they are public records. While we agree that, in and of itself, “the absence of a ‘written policy’ does not suggest inconsistencies in the use of confidentiality language, much less ill will,” we note that a written policy could help improve consistency of application and support the development of trust in MCLA by the public it serves. MCLA suggests that confidentiality clauses could not “be used to protect or obscure from public view repeated instances of poor management or unlawful behavior.” Our office, however, has found across state government, through our audits, that confidentiality clauses have indeed been used to conceal allegations of unlawful behavior and poor management, despite many agencies following CTR’s policies and the public records law. We encourage MCLA to consider the benefit of increasing transparency with respect to its use of taxpayer dollars surrounding its settlement agreement process. It could use the Governor’s Executive Department Settlement Policy as a starting point for documenting its internal policies and procedures regarding the use of confidentiality language, specifically related to terms or conditions that would prevent a claimant from disclosing facts about a claim or settlement.
Auditee’s Response: MMA
The Report finds that the Academy lacks a written policy regarding the use of non confidentiality language within employee settlement agreements. However, the absence of a “written policy” does not suggest inconsistencies in the use of confidentiality language, much less ill will. In most cases, as previously stated, the inclusion of a confidentiality clause is the result of the negotiation with an employee over the terms of the settlement agreement and is driven by the employee through the employee’s representative. Further, when confidentiality is included in a settlement agreement, language is included to make clear that confidentiality is not absolute and is subject to state and federal legal limitations. The confidentiality language included in settlement agreements is almost always “limited,” and the Academy strives to make clear in its agreements where such language is included that, regardless of the presence of any language regarding confidentiality or non-disclosure language, the agreement may be subject to a public records request and a “lawful request” or “legal process” would provide sufficient justification for disclosure.
The Academy does not dispute that a settlement may be subject to a public records request, but emphasizes that certain information may be redacted from settlement documents. The Academy maintains that the inclusion of language that makes clear that confidentiality does not supersede compliance with legal requirement, process, or request and that the agreement may be regarded as a public record mitigates any concern that the language could be used to protect or obscure from public view repeated instances of poor management or inappropriate or unlawful behavior at the Academy. Generally, the Academy seeks to align any language it includes in settlement agreement with the CTR’s statement that “Confidentiality Provisions May be Unenforceable,” as included in the CTR’s Settlement and Judgment Policy.
Auditor’s Reply: MMA
MMA acknowledges that it does not have a written policy on the use of confidentiality language in employee settlement agreements. OSA agrees with MMA that certain information can be redacted from settlement documents but that they are public records. While we agree that, in and of itself, “the absence of a ‘written policy’ does not suggest inconsistencies in the use of confidentiality language, much less ill will,” we note that a written policy could help improve consistency of application and support the development of trust in MMA by the public it serves. MMA suggests that confidentiality clauses could not “be used to protect or obscure from public view repeated instances of poor management or unlawful behavior.” Our office, however, has found across state government, through our audits, that confidentiality clauses have indeed been used to conceal allegations of unlawful behavior and poor management, despite many agencies following CTR’s policies and the public records law. We encourage MMA to consider the benefit of increasing transparency with respect to its use of taxpayer dollars surrounding its settlement agreement process. It could use the Governor’s Executive Department Settlement Policy as a starting point for documenting its internal policies and procedures regarding the use of confidentiality language, specifically related to terms or conditions that would prevent a claimant from disclosing facts about a claim or settlement.
Auditee’s Response: Massport
Finding No. 2 is not accurate with respect to Massport. As of February 19, 2025, in response to the Governor’s Executive Department Settlement Policy, issued January 27, 2025, Massport’s internal policies and procedures were updated to comply with that Policy’s provision prohibiting the use of non-disclosure agreements (NDAs) in Settlement Agreements involving Massport and its employees. Finding No. 2 should be corrected to acknowledge this fact.
Auditor’s Reply: Massport
OSA agrees with Massport’s statement that it updated its internal policies and procedures to comply with the Governor’s Executive Department Settlement Policy implemented in response to our previous report regarding the use of confidentiality clauses in settlement agreements across state agencies, issued January 28, 2025. However, we remind Massport that our audit covered the years 2019 through 2024, and our findings in this audit report pertaining to Massport’s policies and use of confidentiality clauses relate to that period, when Massport did not have such a policy and was found to have used confidentiality clauses concealing serious allegations of unlawful discrimination based on gender, disability, sexual orientation, disparate treatment, and unequal pay. Any updates made in 2025 are outside the scope of this audit. We do hope, however, that Massport actually follows its new policies moving forward, especially considering how these clauses have been used by this agency in recent years.
Auditee’s Response: WSU
The Report finds that the University lacks a written policy regarding the use of non-confidentiality language within employee settlement agreements. However, the absence of a “written policy” does not suggest inconsistencies in the use of confidentiality language. In most cases the inclusion of a confidentiality clause is the result of the negotiation with an employee or the employee’s representative over the terms of the settlement agreement. Further, when confidentiality is included in a settlement agreement, language is included to make clear that confidentiality is not absolute and is subject to state and federal legal limitations. The University strives to make clear in its agreements where such language is included that, regardless of the presence of any language regarding confidentiality or non-disclosure language, the agreement may be subject to a public records request and a “lawful request” or “legal process” would provide sufficient justification for disclosure.
The University does not dispute that a settlement may be subject to a public records request, but emphasizes that certain information may be redacted from settlement documents. The University maintains that the inclusion of confidentiality language does not supersede compliance with legal requirement, process, or request and that acknowledgment that the agreement may be regarded as a public record mitigates any concern that the language could be used to protect or obscure from public view repeated instances of poor management or inappropriate or unlawful behavior at the University. Importantly, when the University submits the required CTR form with any monetary settlement it does not indicate that the settlement agreement is confidential.
Auditor’s Reply: WSU
WSU acknowledges that it does not have a written policy on the use of confidentiality language in employee settlement agreements. OSA agrees with WSU that certain information can be redacted from settlement documents but that they are public records. The absence of a written policy, in and of itself, does not suggest inconsistencies in the use of confidentiality language, much less ill will. We note that a written policy could help improve consistency of application and support the development of trust in WSU by the public it serves. WSU suggests that confidentiality clauses could not “be used to protect or obscure from public view repeated instances of poor management or unlawful behavior.” Our office, however, has found across state government, through our audits, that confidentiality clauses have indeed been used to conceal allegations of unlawful behavior and poor management, despite many agencies following CTR’s policies and the public records law. We encourage WSU to consider the benefit of increasing transparency with respect to its use of taxpayer dollars surrounding its settlement agreement process. It could use the Governor’s Executive Department Settlement Policy as a starting point for documenting its internal policies and procedures regarding the use of confidentiality language, specifically related to terms or conditions that would prevent a claimant from disclosing facts about a claim or settlement.
| Date published: | January 21, 2026 |
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