Amicus brief in Ford v. City of Huntsville
The Reporters Committee argued that courts cannot issue confidentiality orders restricting access to otherwise public information.
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No. 20293
UNITED STATES COURT OF APPEALS DENEEN FORD, Plaintiff, vs. CITY OF HUNTSVILLE Defendants, vs. THE HUNTSVILLE ITEM, Proposed Intervenor-Appellant. BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AMERICAN SOCIETY OF NEWSPAPER EDITORS, AND THE SOCIETY OF PROFESSIONAL JOURNALISTS IN SUPPORT OF PROPOSED INTERVENOR-APPELLANT ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS - HOUSTON DIVISION
Table of Contents Cases Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191 (Alaska 1989) Ceres Gulf v. Cooper, 975 F.2d 1199 (5th Cir. 1992) Chiglo v. City of Preston, 104 F.3d 185 (8th Cir. 1997) City of Houston v. Houston Chronicle Publishing, 673 S.W.2d 316 (Tex. App.-Houston 1984) Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920 (5th Cir. 1996) E.E.O.C. v. Nat'l Children's Ctr., 146 F.3d 1042 (D.C. Cir. 1998) Hurd v. Hodge, 334 U.S. 24 (1948) Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Texas 1976) Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader, 941 S.W.2d 469 (Ky. 1997) Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3rd Cir. 1994) Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) Shelley v. Kraemer, 334 U.S. 1 (1948) State ex. rel. Kinsley v. Berea Brd. of Edn., 64 Ohio App. 3d 659 (Ohio Ct. App. 1990) Taylor Communications Group v. Southwestern Bell Tel. Co., 172 F.3d 385 (5th Cir. 1999) Statutes Fed. R. Civ. P. 24 Fed. R. Civ. P. 24(a)(2) Fed. R. Civ. P. 24(b) Texas Gov't Code Ann. Chap. 552 Texas Gov't Code Ann. § 552.001(a) Texas Gov't Code Ann. § 552.001(b) Texas Gov't Code Ann. § 552.002(a) Texas Gov't Code Ann. § 552.021 Texas Gov't Code Ann. § 552.022(a)(18) Texas Gov't Code Ann. § 552.022(b) Texas Gov't Code Ann. § 552.103(a) Texas Gov't Code Ann. § 552.107(2) Texas S.B. 1851 Attorney General Opinion Texas Open Record Decision No. 114 (1975) The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of news reporters and editors dedicated to protecting the First Amendment interests and access rights of the news media. The Reporters Committee has provided information, representation, legal guidance, and research for most significant federal and state appellate press-freedom cases in the past 30 years. The American Society of Newspaper Editors is a professional organization of more than 900 persons who hold positions as directing editors of daily newspapers in the United States and Canada. The Society of Professional Journalists is a voluntary nonprofit journalism organization representing every branch and rank of print and broadcast journalism. SPJ is the largest membership organization for journalists in the world, and for more than 90 years, SPJ has been dedicated to encouraging a climate in which journalism can be practiced freely, fully, and in the public interest. Amici curiae offer their experience as advocates for freedom of the press to assist this court. Amici curiae adopt the Statement of Facts presented by Proposed Intervenor-Appellant The Huntsville Item. Government settlement agreements are public information under Tex. Gov't Code Ann. § 552.022(a)(18). According to Tex. Gov't Code Ann. § 552.022(b), a court may not issue a confidentiality order that restricts access to government information, unless another law expressly makes that information confidential. No other law exempts government settlement agreements from the mandatory disclosure provision of Tex. Gov't Code Ann. § 552.021. The Hunstville Item's motion to intervene in the matter between Deneen Ford and the City of Huntsville for the sole purpose of vacating a confidentiality order was improperly denied by the district court under the common law and Fed. R. Civ. P. 24. I. The Texas Public Information Act requires government settlement agreements to be made public, and no exemption applies A. The Texas Legislature has properly found that public policy supports making government settlement agreements public The Texas Public Information Act guarantees a broad right of access to government information. "This chapter shall be liberally construed in favor of granting a request for information." Tex. Gov't Code Ann. § 552.001(b). The policy behind the law recognizes the importance of public access to government information in a democracy:
Tex. Gov't Code Ann. § 552.001(a)(emphasis added). Under the Act, "public information" is defined as "information that is collected, assembled, or maintained under law or ordinance or in connection with the transaction of official business (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information and has a right of access to it." Tex. Gov't Code Ann. § 552.002(a). A settlement agreement meets this basic definition for public information; in addition, the Legislature has expressly granted public access to settlement agreements:
Tex. Gov't Code Ann. § 552.022(a)(18). Public information must be disclosed to the public upon request. Tex. Gov't Code Ann. § 552.021. The Legislature has sole authority to oversee the Act. The state Supreme Court has ruled that only the Legislature may exempt information from the mandatory disclosure provisions of the Act. Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668 (1976). Only information that the Legislature has exempted may be kept secret, and the courts are not to create additional exemptions. "[W]e do not believe that a court is free to balance the public's interest in disclosure against the harm resulting to an individual by reason of such disclosure. This policy determination was made by the Legislature when it enacted the statute." Id. at 681-682. Under the Act, the attorney general is called upon to review denials of public records requests. Although attorney general opinions do not carry the force of law, their interpretations of the Act are to be given great weight. City of Houston v. Houston Chronicle Publishing, 673 S.W.2d 316, 322 (Tex. App.-Houston 1984). The state attorney general has repeatedly opined that settlement agreements should be made public because they involve the expenditure of public money and they represent the final terms of a settlement negotiation. See e.g., Open Record Decision No. 114 (1975) ("We have previously held that a governmental body has no authority to contract to make information confidential in violation of the Open Records Act. . . . It is our decision that the terms of a final settlement agreement are public information and are required to be disclosed."). B. A Public Information Act amendment clarifies that government settlement agreements are not subject to confidentiality orders Even though the public historically has enjoyed a right of access to government settlement agreements, the Public Information Act was amended in 1999 to strengthen that right. S.B. 1851 (codified at Tex. Gov't Code Ann. Chap. 552). The amendment clarifies that certain kinds of public information listed in § 552.022(a), of which a confidential settlement is but one, may not be exempted from the Act's mandatory disclosure provision unless they are made confidential by another law. No law makes government settlement agreements confidential. Information relating to pending government litigation is exempted from disclosure under the Act, but the amendment removes settlement agreements from the ambit of that exemption. Tex. Gov't Code Ann. § 552.103(a). Of particular interest is a new provision that prohibits the very action the district court took in this case:
Tex. Gov't Code Ann. § 552.022(b). At the parties' request, the district court issued an order that prohibits the parties from making the settlement agreement public. Agreed Order December 28, 1999, Tab 14 ("Pursuant to Tex. Gov't Code Ann. § 552.107(2), it is ordered that disclosure of the settlement documents associated with Plaintiff Deneen Ford's suit against City of Huntsville, Texas and Hank Eckhardt ("Defendants") is hereby prohibited."). The district court cites Sec. 552.107(2) as authority, but that section does not support the issuance of the confidentiality order in light of Sec. 552.022(b). The issuance of the December 28 confidentiality order is in direct conflict with the clear language of the Act and the stated policy that government settlements are public and that the Act must be liberally construed in favor of disclosure. The December 28 confidentiality order must be vacated as a matter of law. II. Common law and policy concerns support finding confidential settlements are against the public interest and must be vacated A. The confidentiality order was improperly granted because the policy favoring access outweighs the policy supporting secrecy Common law and public policy concerns do not support the issuance of an order restricting access to an otherwise public record. All too often, the Third Circuit found in Pansy v. Borough of Stroudsburg, 23 F.3d 772 (1994), courts grant confidentiality orders without first considering the propriety of such orders in light of the strong public policy arguments favoring disclosure.
Id. at 791. This court also expressly requires a inquiry into the effect a confidentiality order would have on a state's public records laws. Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920 (5th Cir. 1996). "In entering a confidentiality order protecting a public entity, or an order such as this requiring a public entity to meet in secrecy, the district court should consider the effect of the order on state freedom of information laws." Id. at 931. Maintaining the confidentiality order in this case would serve little public interest compared to the great public interest, as recognized by the Public Information Act, supra, served by granting access to government information in general and settlement agreements in particular. Neither the district court nor the original litigants have identified a public interest to support the December 28 confidentiality order. The district court did not conduct any balancing to determine whether the confidentiality order would be in the public interest, nor did it consider the effect the order would have on the Act. In light of the great public interest in favor of disclosing government settlement agreements, the fact that one of the litigants is the City of Huntsville, and the negative effect the confidentiality order has had on the Act, amici respectfully urge this court to find that the confidentiality order should never have been issued. B. Courts may not enforce contracts, including confidential settlement agreements, that contravene the public interest At the heart of this case is the question of whether a court may enforce a contract, such as a government settlement agreement, that is contrary to public policy. The answer is no. While amici are not suggesting that the settlement agreement itself contradicts public policy, any provision in the agreement requiring confidentiality should be held void. The U.S. Supreme Court has ruled that courts may not enforce contracts that are contrary to public policy:
Hurd v. Hodge, 334 U.S. 24 (1948) [A companion to the seminal U.S. Supreme Court case striking down racially restrictive land covenants, Shelley v. Kraemer, 334 U.S. 1 (1948).]. The City of Huntsville's attempt to deny the public access to its settlement agreement through a court-imposed confidentiality order not only violates the letter of the Public Information Act, but it also contravenes important public policy concerns. Several courts have applied the same public policy arguments to find that confidentiality provisions in settlement agreements themselves are against public policy and cannot be enforced if they restrict access to public records. The Supreme Court of Alaska, for example, ruled that a settlement between a public school system and the manufacturer of fireproofing material must be made public, despite a confidentiality provision in the settlement to the contrary:
Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193 (1989). See also, State ex. rel. Kinsley v. Berea Brd. of Edn., 64 Ohio App. 3d 659,663. (1990); Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader, 941 S.W.2d 469, 471 (Ky. 1997). Amici respectfully urge this court to find that any secrecy provisions in -- or confidentiality orders relating to -- the settlement agreement are void for being contrary to the public interest. III. The newspaper's motion to intervene under the Federal Rules of Civil Procedure and the common law was improperly denied A. The newspaper should have been allowed to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) The Huntsville Item has a right to intervene under Fed. R. Civ. P. 24(a)(2). This court must review the denial of that right de novo. Taylor Communications Group, Inc. v Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999). To intervene as of right, a third party must show that its application to intervene was timely; that it has an interest relating to the transaction that was the subject of the original action; that the disposition of that action impaired its ability to protect that interest; and the original parties do not adequately represent its interests. Id. This court has found that news organization were able to satisfy these requirements when they sought to intervene in a case to challenge a court-imposed confidentiality order. Davis, 97 F.3d at 927. The newspaper filed its motion to intervene approximately three weeks after the district court issued the December 28 confidentiality order. Considering that courts have found applications to intervene made several weeks or even months after a case concluded were timely, it stands to reason that a mere three-week delay during the 1999-2000 holiday season does not render the newspaper's motion untimely. See e.g., Taylor,172 F.3d at 387 (three-week delay was timely); Pansy, 23 F.3d at 779 (six-one-one-half-months delay was timely). The newspaper also is able to show that it has a legal interest that allows it to intervene as of right. The Public Information Act confers a legal interest on the public to gain access to the contents of government settlement agreements. Texas Gov't Code Ann. § 552.022(a)(18). This court has also recognized that a government official charged with overseeing the application of a federal law has a legal interest, for the purpose of intervening, in ensuring that a law was applied fairly and consistently applied. Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992). In this case, the newspaper has an interest in ensuring that the Act is properly administered and followed by the City of Huntsville. By monitoring government action and expenditures, the news media perform a "watchdog" role similar to the one the government official in Ceres Gulf performed. The confidentiality order interferes with the newspaper's ability to exercise its rights under the Act. Without the confidentiality order, the newspaper would be able to gain access to the settlement agreement under the Act. This court has recognized that confidentiality orders "severely impeded the news agencies' ability to discover newsworthy information." Davis, 78 F.3d at 927. In this case, the confidentiality order also infringes upon the newspaper's access rights under the Act, a far greater injury than what this court recognized in Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994), in which the underlying action merely "threatened" timber-industry contracts held by the intervenors. Finally, the newspaper is able to show that none of the original parties is able to adequately represent its interest. The City of Huntsville has an interest contrary to public policy and the best interests of its citizens. The Eighth Circuit recognized in Chiglo v. City of Preston, 104 F.3d 185 (1997)(citation omitted) that third parties should be allowed to intervene when a governmental body cannot adequately represent the interests of its citizens.
Id. at 187-88. By trying to keep its settlement agreement with Ford confidential, the City of Huntsville is not acting in the best interest of its citizens, the very people who must finance these settlements through their tax dollars. The Act recognizes that secret settlements would leave governmental bodies unaccountable for their policy and fiscal decisions. The newspaper is acting as a government watchdog and representative of the public, whereas the original parties, namely the City of Huntsville, are seeking to contravene provisions of the Act that require government settlement agreements to be made public and the Act to be broadly interpreted in favor of access. B. The District Court abused its discretion in denying motion to intervene for the purpose of challenging a confidentiality order The newspaper also has a permissive right to intervene under Fed. R. Civ. P. 24(b). A denial of an application for permissive intervention will be reviewed for abuse of discretion. Taylor,172 F.3d at 387. For permissive intervention, a third party must show that the application was timely and that the proposed intervenor shares a common question of law or fact. Fed. R. Civ. P. 24(b). The Third Circuit has said that a third party shares common questions of law and fact with the litigants for the purpose of challenging a confidentiality order. "We agree with other courts that have held that the procedural device of permissive intervention is appropriately used to enable a litigant who was not an original party to an action to challenge protective or confidentiality orders entered in that action." Pansy, 23 F.3d at 778. The District of Columbia Circuit has found that third parties who want to intervene to challenge confidentiality orders meet the requirements of Rule 24 (b). E.E.O.C. v. Nat'l Children's Ctr., 146 F.3d 1042 (1998)(citations omitted). "[E]very circuit court that has considered the question has come to the conclusion that nonparties may permissively intervene for the purpose of challenging confidentiality orders." Id. at 1045. Special circumstances, such as the desire to challenge a confidentiality order, support such a "flexible" interpretation of Rule 24. Id. at 1046. In National Children's Center, the D.C. Circuit ultimately held that the district court had abused its discretion, in part, when it denied a motion for permissive intervention to obtain confidential documents without issuing any explanation or conducting any factual findings:
Id. at 1049. In this case, the insufficient record does not offer any indication as to why the district court denied the newspaper's motion to intervene. Because of the important public policy issues raised by this case, the clear precedent to support a permissive motion to intervene, and the lack of any factual finding to justify a denial, amici respectfully urge this court to find the denial of the newspaper's motion was an abuse of discretion. For these reasons, amici curiae respectfully urge this court to reverse the district court's denial of The Huntsville Item's January 19, 2000, motion to intervene and to vacate the December 28, 2000, confidentiality order in the matter between Deneen Ford and the City of Huntsville. Dated: June 13, 2000 Respectfully submitted,
Gregg P. Leslie, Esq. Counsel of Record Lucy A. Dalglish, Esq. Byron R. Brown, Esq. The Reporters Committee for Freedom of the Press 1815 N. Fort Myer Drive, Suite 900 Arlington, VA 22209 Telephone: (703) 807-2100 Of Counsel:
Richard Schmidt, Esq. |