VIA FAX TRANSMISSION June 8, 2000 Robert E. Dauer President Judge Court of Common Pleas Fifth Judicial District Allegheny County Courthouse Pittsburgh, PA 15219 Facsimile: 412/350/7111 Re: PG Publishing Co. v. City of Pittsburgh, Case No. S.A. 00-651 Dear Judge Dauer: The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and public record litigation since 1970, including litigation concerning the very issues raised in this case. As a special project, the Reporters Committee operates the FOI Service Center, a clearinghouse that monitors developments in and educates about federal and state public access laws. The Reporters Committee does not seek to intervene in the case. It writes only to emphasize to the Court the broad First Amendment principles and access rights at stake in this case. The Reporters Committee offers its insights into whether contracts, including collective bargaining agreements and government settlements, may be used to subvert the mandatory disclosure provisions of a state's public records law. A government settlement agreement meets the definition of a public record under the Right to Know Law because it involves expending public money. 65 Pa. Cons. Stat. §66.1(2). The financial terms of a settlement agreement are public because they are an "account, voucher or contract dealing with the receipt or disbursement of funds by an agency." Id. The city of Pittsburgh is an "agency" because it is a "political subdivision of the Commonwealth [that] has for its purpose the performance of an essential government function." 65 Pa. Cons. Stat. §66.1(1). The city of Pittsburgh first disputes that the settlement agreement with former police officer Jeffrey Cooperstein is a public record. It claims that the entire settlement is exempt from disclosure because parts of the agreement may contain confidential information. Even if some portions of the settlement may be redacted, the remainder must be released under the Right to Know Law. See e.g., Times [Reporters Committee/page 2] Publishing Co. v. Michel, 633 A.2d 1233, 1239 (Pa. Commw. Ct. 1993), appeal denied, 645 A.2d 1321 (Pa. 1994). The city also claims that even if the settlement agreement is a public record, confidentiality provisions in the city's collective bargaining agreement with the Fraternal Order of Police - Fort Pitt Lodge No. 1 bar it from disclosing the settlement terms to the public. Private contracts, however, cannot be used to frustrate a public record law's mandatory disclosure provisions. In Hurd v. Hodge, 334 U.S. 24 (1948), the U.S. Supreme Court ruled that courts may not enforce contracts that are contrary to public policy.   The power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States as manifested in the Constitution, treaties, federal statutes, and applicable legal precedents. Where the enforcement of private agreements would violate that policy, it is the obligation of courts to refrain from such exertions of judicial power. Id. at 34-35. A contract that seeks to limit access to public records is against public policy and cannot be enforced. In State, ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St. 3d 382 (1985), the Ohio Supreme Court struck down a collective bargaining agreement provision that required a city to keep secret some types of public records. See also, State of Hawaii Org. of Police Officers v. SPJ-University of Hawaii Chapter, 83 Haw. 378, 406 (1996)("With respect to public record statutes, the virtually unanimous weight of authority holds that an agreement of confidentiality cannot take precedence over a statute mandating disclosure."); Lieberman v. State Bd. of Labor Relations, 216 Conn. 253, 261 (1990)("We conclude that an agreement to destroy public records conflicts with relevant provisions of the General Statutes, and we hold, therefore, that the destruction of a public employee's discipline record is an illegal subject of collective bargaining."); Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, n.1 (1993) ("[W]ith regard to the public records claim, we could not allow the public's right of access to be overridden by a contract between the public agency and its employees."); Bradley v. Brd. of Educ. of the Saranac Community Schs., 455 Mich. 285, 303 (1997) ("The [Freedom of Information Act] requires disclosure of all public records not within an exemption. No exemption provides for a public body to bargain away the requirements of the FOIA."). Many state courts have applied the same public policy arguments to secret government settlements, finding that confidentiality provisions in the settlements themselves that restrict access to public records are against public policy and cannot be enforced. See e.g., Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193 (1989)("Thus, we hold that a public agency may not circumvent the statutory disclosure requirements by agreeing to keep the terms of a settlement agreement confidential. Under Alaska law, a confidentiality provision such as the one in the case at bar is unenforceable because it violates the public records disclosure statutes."); 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. [Reporters Committee/page 3] 1997) ("There could be no viable contention that an agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is not a public record."). Finally, before a court may issue an order barring access to government information, it must first consider the effect the order will have on a state's public records law. The Third Circuit found in Pansy v. Borough of Stroudsburg, 23 F.3d 772 (1994), that courts routinely grant confidentiality orders without first considering the propriety of such orders in light of the strong public policy arguments favoring disclosure.   Disturbingly, some courts routinely sign orders which contain confidentiality clauses without considering the propriety of such orders, or the countervailing public interests which are sacrificed by the orders. Because defendants request orders of confidentiality as a condition of settlement, courts are willing to grant these requests in an effort to facilitate settlement without sufficiently inquiring into the potential public interest in obtaining information concerning the settlement agreement. The public's interest is particularly legitimate and important where, as in this case, at least one of the parties to the action is a public entity or official. Id. at 785-86. In this case, the public has a great interest in knowing the terms and conditions of a government settlement agreement. Without knowing the details of the agreement, the public will be unable to monitor the policy decisions and expenditures of its leaders. The secrecy provisions of a collective bargaining agreement cannot be used to shield public information. To allow the city of Pittsburgh to hide its actions behind the agreement's veil of secrecy would frustrate the strong public policy considerations embodied by the Right to Know Law. Respectfully,   Byron R. Brown, Esq. Jack Nelson Legal Fellow Rebecca Daugherty FOI Service Center Director The Reporters Committee for Freedom of the Press 1815 N. Fort Myer Drive, Suite 900 Arlington, VA 22209 Telephone: 703/807/2100 Facsimile: 703/807/2109 [Reporters Committee/page 4] cc. Kevin Abbott (by facsimile) Reed Smith Shaw & McClay L.L.P. 435 Sixth Avenue Pittsburgh, PA 15219 Facsimile: 412/228/3063 Jacqueline Morrow (by facsimile) City of Pittsburgh Department of Law 313 City-County Building 414 Grant Street Pittsburgh, PA 15219 Facsimile: 412/255/2285
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