Asked and Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: Can I access a settlement agreement?

A: When a civil case ends in a settlement, the parties commonly add language regarding the confidentiality of the agreement. The promise of secrecy is often an important incentive in getting one or both parties to accept the terms of a settlement.

Under these confidentiality provisions, all or part of the settlement itself may be secret, and other records and documents may be as well. The parties can then file the settlement agreement with the court and ask the court to seal it and other documents.

Some courts have rejected secret settlements, holding that settlement agreements are like private contracts and that court involvement changes the analysis. The Seventh Circuit has held that if a settlement agreement gets the endorsement of a court, it must also enter the public record of a case unless it contains trade secrets or other confidential information.

The Third Circuit has weighed in similarly, holding that “having undertaken to utilize the judicial process to interpret the settlement and to enforce it, the parties are no longer entitled to invoke the confidentiality ordinarily accorded settlement agreements.” Because the agreement was filed with the court, it becomes a judicial record, with all related rights of public access.

In state court, access to settlement agreements depends on state law. Some states, including South Carolina and Virginia, have laws that restrict parties’ ability to be secret when seeking judicial approval of settlement terms.

If a party wants certain information to remain confidential in those states, the burden of proof is on that party to demonstrate why.

The circuits disagree on what level of court involvement makes a settlement agreement become a judicial record, but if a settlement agreement is not filed with the court, rights of public access are markedly less.

Drafts of settlement agreements can also be considered judicial records subject to rights of public access, and courts have been split on what degree of court involvement transforms those drafts into judicial records.

Q: I recently heard someone referring to “exclusions” under the federal Freedom of Information Act. I thought the law contained “exemptions.” Is there a difference between the two?

A: FOIA contains both exemptions and exclusions, although compared to exemptions, exclusions are rarely invoked. Requesters are more familiar with FOIA’s nine exemptions, which allow federal agencies to withhold records ranging from national security information to documents that would unjustifiably invade an individual’s privacy.

When it comes to exemptions, FOIA requires an agency to tell a requester which exemption is being used to withhold particular records or portions of records. FOIA also allows a requester to challenge an agency’s claims regarding exemptions, through administrative appeals and lawsuits.

FOIA exclusions, on the other hand, allow an agency to treat certain records as if they do not even exist, meaning that agencies can tell a requester that they did not find any records responsive to his or her request even though the agency may in fact have the sought-after records. Congress created the exclusions in 1986 to allow agencies to withhold records in three narrow situations related to law enforcement activities.

The first is when there is an active law enforcement investigation and agency officials believe that the target of the investigation does not know about it. Agency officials must also believe that disclosing that records exist would tip off the target. The agency can only claim this exclusion during the time that the actual investigation is occurring.

The second circumstance is when a requester seeks information about a criminal informant where the law enforcement agency has not publicly revealed that the individual was an informant. Although there is a FOIA exemption that allows agencies to withhold the names of informants, the rationale for this particular exclusion is that by claiming FOIA’s exemption for informants, an agency would essentially be confirming that a particular individual was an informant.

Finally, the third exclusion covers records held by the FBI concerning investigations into foreign intelligence and international terrorism where the records are themselves classified.

Challenging an exclusion can be difficult because the agency will respond to a request covering excluded records by saying that it does not have any records responsive to the request and it does not have to tell you it is using an exclusion to withhold the records. This means that a requester essentially receives a response from the agency stating that there were no records responsive to the request.

A requester can nonetheless appeal an agency’s no-records response because it would be considered adverse to the requester. When this appeal is made, a requester needs to be prepared to argue that the circumstances surrounding the potential application of an exclusion no longer apply or that the government has waived its ability to claim a FOIA exclusion. But even as a requester challenges an agency’s potential use of an exclusion, during either an administrative appeal or a lawsuit, the agency will likely not confirm whether it has used an exclusion.

Regarding the waiver argument, a court recently ruled in Memphis Publishing Company v. FBI that the FBI had waived its ability to claim an exclusion regarding a former confidential informant because the agency had previously released documents that identified the individual as such.

In particular, the court ruled that previously releasing documents under FOIA that disclosed a confidential informant’s identity served as official confirmation (even if the disclosure was an FBI oversight) by the agency that the particular individual was an informant and therefore did not allow the FBI to claim the informant exclusion.

Q:My state has a journalist shield law. Does that mean I’m safe in offering assurances to my confidential sources that they will not be identified by authorities seeking to uncover them?

A: Not necessarily. Currently, 40 states and the District of Columbia have a reporter shield law. Hawaii’s shield law is set to expire on June 30, which will bring that number down to 39. But these laws offer a vague and inconsistent patchwork of protection for journalists hoping for legal protection to back up their promises of confidentiality to their sources.

States such as Colorado, Illinois and Maryland enacted laws that provide only a qualified protection against the compelled disclosure of information based on a set of criteria.

In Colorado, for instance, to overcome a privilege claim by a reporter, the party seeking a forced disclosure of confidential information must establish: “(a) that the news information is directly relevant to a substantial issue involved in the proceedings; (b) That the news information cannot be obtained by any other reasonable means; and (c) That a strong interest of the party seeking to subpoena the news person outweighs the interests under the First Amendment to the United States Constitution of such news person in not responding to a subpoena and of the general public in receiving news information.”

The level of proof required to be established by parties seeking to compel reporters to disclose confidential information depends on the state. Colorado, for instance, requires a “preponderance of the evidence” standard, which is used in most civil trials where a jury is instructed to find for the party that, on the whole, has the stronger evidence.

Maryland, in comparison, requires a “clear and convincing” standard to be met, which is a greater burden than the preponderance standard requiring a party to prove that it is highly probable or reasonably certain the qualified privilege test was met.

In fact, the privilege laws in some states are easy for parties to overcome. For instance, in New Mexico, a reporter loses the right to keep her sources or information confidential if “disclosure [is] essential to prevent injustice.” North Dakota similarly requires disclosure if protecting the reporter from divulging a source would “cause a miscarriage of justice.”

Even states with reporter shield laws recognizing a complete privilege from compelled disclosure of confidential information differ in both the wording of the laws and the substance of the protections for journalists. For example, Alabama’s shield law provides an absolute privilege, but only for “sources of any information procured … and published;.” The Kentucky state shield law, meanwhile, shields only those sources who provided reporters with material that is ultimately published or aired.

Several news organizations, including the Society of Professional Journalists, the American Society of News Editors and the New York Times Company, have formalized ethical codes and procedures to be employed in situations where a reporter is both negotiating and honoring pledges of confidentiality. As these ethical codes make clear, pledges of confidentiality should be given only when it is clear such information is important to the public.

Given the inconsistent patchwork of protections present in state reporter shield laws and the duty to protect confidentiality agreements such ethics codes impress on journalists, such promises should not be given lightly.