Cases concerning public access to ADR

Cases discussing access to ADR are compiled below. The cases are sorted by jurisdiction for practitioners to see what cases govern in their area. Also, cases allowing access are marked with a "+" and cases denying access are marked with a "-".

Federal cases:

(Federal district court cases are included within their circuit.)

Second Circuit

- U.S. v. Glens Falls Newspapers Inc., 160 F.3d 853 (2nd Cir. 1998) (settlement negotiations and agreements do not have to be released to the public because the need for a fair and efficient resolution of the case outweighs the negligible presumption of access to settlement materials).

- City of Hartford v. Chase, 942 F.2d 130 (2nd Cir. 1991) (confidentiality order that was predicate for settlement cannot be subsequently modified by trial court; confidentiality order operates to bar disclosure of city records and provides defense to state public records act).

- Palmieri v. State of N.Y., 779 F.2d 861 (2d Cir. 1985) (State sought access to settlement agreement and information regarding that agreement; held that it was erroneous to modify sealing order absent express finding of improvidence of magistrate's initial grant of protective orders or extraordinary circumstances or compelling need by state for information).

- U.S. v. Town of Moreau, N.Y., 979 F.Supp. 129 (N.D.N.Y. 1997) (newspaper and reporter were not entitled to access to settlement negotiation information).

- In re Franklin Nat. Bank Securities Litigation, 92 F.R.D. 468 (E.D.N.Y. 1981) aff'd sub nom. FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir.1982) (holding that settlement will remain sealed despite strong public interest in the case because settlement would not have been reached without secrecy provision).

Third Circuit

+ Bank of America Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986) (reversing order denying access to settlement agreement and related motions).

- Enprotech Corp. v. Renda, 983 F.2d 17 (3d Cir. 1993) (order denying motion to compel production of settlement agreement is not appealable when settlement had not been filed with the court, compliance with terms and conditions of the settlement agreement had not been ordered by the court, and no order for enforcement of agreement had been sought).

- In re Asbestos Products Liability Litigation, 1991 WL 170827, 19 Media L. Rep. 1220 (E.D. Pa. 1991) (denying media access to pretrial conference where settlement options may be discussed; stating that settlement has historically been private and closed to the press and public).

Fourth Circuit

+ Boone v. Suffolk, 79 F. Supp. 2d 603 (E.D. Va. 1999) (there is no First Amendment or statutory right of access to settlement agreements in civil cases, but common law right of access required settlement agreement to be unsealed).

+ Ex parte Knight Ridder, Inc., 982 F.Supp. 1080 (D.S.C. 1997) (settlement agreement was judicial record to which right of public access existed under common law and First Amendment).

Fifth Circuit

+ SEC v. Van Waeyenberghe, 990 F.2d 845 (5th Cir. 1993) (presumptive right of access to settlements; lower court failed to balance right of access with interest in sealing).

Sixth Circuit

- Cincinnati Gas & Elec. Co. v. General Elec. Co., 854 F.2d 900 (6th Cir. 1988) (no right of access to summary jury trial because it is analogous to a settlement conference).

- In re Cincinnati Enquirer, 94 F.3d 198 (6th Cir. 1996) (newspaper failed to demonstrate First Amendment right of access to summary jury trial in class action arising from prison riots).

Seventh Circuit

+/- Union Oil Co. of Calif. v. Leavell, 220 F.3d 562 (7th Cir. 2000) (finding that settlement agreement and other court records should not be sealed because court records should be open to the public, but also noting that parties who want secrecy should "opt for arbitration").

- B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) (there was no public right of access to in-chambers conferences concerning implementation of consent decree).

+ Arkwright Mut. Ins. v. Garrett & West, Inc., 782 F.Supp. 376 (N.D.Ill. 1991) (settlement would not be sealed absent compelling argument for secrecy).

Ninth Circuit

+ EEOC v. The Erection Co., 900 F.2d 168, 17 Media L. Rep. 1667 (9th Cir. 1990) (reversing sealing of consent decree for failure of court to articulate any findings for closure order).

+ U.S. ex rel. McCoy v. California Medical Review, Inc., 133 F.R.D. 143 (N.D.Cal. 1990) (good cause did not exist to hold settlement hearing in secret or to seal briefs related to the hearing).

Tenth Circuit

+/- Daines v. Harrison, 838 F.Supp. 1406 (D.Colo. 1993) (holding that magistrate abused his discretion in ordering that terms of settlement agreement between sheriff's department and dismissed deputy be kept confidential, since secrecy surrounding disbursement of public funds was contrary to public policy and parties had not demonstrated an interest favoring confidentiality that would outweigh interests favoring disclosure; however, the agreement never was part of the court's records and thus it is beyond court's authority to order disclosure of the settlement; stated that petitioners must follow procedures in Colorado Open Records Act to obtain settlement agreement).

- Resolution Trust Corp. v. Hess, 859 F.Supp. 1411 (D.Utah 1994) (court ruled that congressional committees were not entitled to discover financial information confidentially obtained by RTC during settlement negotiations).

+ Society of Professional Journalists v. Briggs, 675 F. Supp. 1308 (D. Utah 1987) (settlement agreement resolving lawsuit that involved allegations of county officials' misconduct is public document to which First Amendment right of access applies).

Eleventh Circuit

+ Pansy v. Stroudsburg, 23 F.3d 772 (11th Cir. 1994) (settlement agreement that was never filed with, interpreted or enforced by a federal district court was held not to be a "judicial record" under the right of access doctrine, even though the court issued an order sealing the terms of the agreement; however, the sealing of the agreement should be made only upon a showing of good cause; any showing that the records would be available under a relevant open records law mandates a strong presumption against an order of confidentiality; case remanded).

+ Mullins v. Griffin, 886 F. Supp. 21 (N.D. Ga. 1995) (court deletes restriction on disclosure of terms of settlement from consent order).

D.C. Circuit

+ E.E.O.C. v. National Children's Center, Inc., 98 F.3d 1406 (D.C. Cir. 1996) (consent decree in sexual harassment suit should not have been sealed, in light of strong public interest in disclosure).

State cases:

Alaska

+ Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191 (Alaska 1989) (settlement documents involving school district must be disclosed despite confidentiality clause because the policy of encouraging settlements by ensuring confidentiality was outweighed by the policy favoring disclosure of public records).

-/+ Duggan v. Koenig, 14 Media L. Rep. 2242 (Alaska Superior Ct. 1987) (newspaper had right of access to some information in sealed settlement resolving lawsuit filed by minors who were alleged victims of sexual assault; paper could obtain total value of settlement amount and ranges of settlement payments, but actual documents and information about identities, injuries and specific facts about assaults would remain sealed).

Arkansas

+ Arkansas Best Corp. v. General Elec. Capital Corp., 878 S.W.2d 708 (Ark. 1994) (finding that public had right of access to settlement agreement).

California

+ Copley Press, Inc. v. Superior Court, 74 Cal. Rptr. 2d 69 (Cal. App. 1998) (news media has right of access to the amount of a settlement reached between a school district and a student who was sexually assaulted on school property).

+ Register Div. of Freedom Newspapers, Inc. v. County of Orange, 205 Cal.Rptr. 92 (Cal.App. 1984) (requiring county to disclose documents from settlement of claim brought by county jail inmate).

+ Lesher Communications, Inc. v. Contra Costa County, 21 Media L. Rep. 1879 (Cal. Superior Ct. 1993) (Public Records Act required disclosure of settlement files in case against county).

Colorado

- Pierce v. St. Vrain Valley School Dist., 981 P.2d 600 (Colo. 1999) (reversing appellate court decision that found that settlement provision requiring confidentiality violated public policy; holding that First Amendment does not bar public entities from entering into confidential settlements where efficient resolution of matter outweighs public access).

Connecticut

- Waterbury Teachers Ass'n v. Freedom of Information Com'n, 694 A.2d 1241 (Conn. 1997) (portions of board of education grievance hearings involving negotiations and settlements could be kept secret despite open meetings laws).

Florida

+ The Tribune Co. v. Hardee, 19 Media L. Rep. 1318 (Fla. Cir. Ct. 1991) (public hospital must disclose settlement agreement under state public records act even though settlement agreement of federal lawsuit contained confidentiality provision).

+ Miami Herald Publishing Co. v. Collazo, 329 So.2d 333 (Fla. App. 1976) (order sealing settlement agreement reversed).

Georgia

- Savannah College of Art and Design v. School of Visual Arts Inc., 515 S.E.2d 370 (Ga. App. 1999) (motion to unseal confidential settlement agreement denied where party's privacy interest in confidentiality outweighed public's right of access to court records).

+ Helen, Georgia v. White County News, 25 Media L. Rep. 1123 (Ga. Super. Ct. 1996) (settlement documents relating to police chief's civil rights suit against city are public records under state open records act; confidentiality provision is void as against public policy).

Illinois

+ In re Marriage of Johnson, 598 N.E.2d 406 (Ill. App. 1992) (right of access under either First Amendment or common law applies to settlement records such as transcripts filed with trial court in personal injury action and divorce proceeding, but such right does not extend to settlement document that was not submitted to the court).

+ Centralia Press Ltd. v. Mt. Vernon Illinois, 25 Media L. Rep. 1120 (Ill. Cir. Ct. 1996) (settlement agreement in civil suit involving city is public record not exempt from disclosure under state public records law).

+ Carbondale Convention Center, Inc. v. City of Carbondale, 614 N.E.2d 539 (Ill. App. 1993) (parties failed to show why settlement agreement should be exempt from Freedom of Information law).

Iowa

+ Des Moines School District v. Des Moines Register, 487 N.W.2d 666 (Iowa 1992) (settlement of dispute between school board and former principal alleging discrimination must be made public under state public records law, but redactions are permitted to protect third-party sources).

Kentucky

+ Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997) (settlement agreement in case against police department must be disclosed because privacy interest does not overcome public's right of access and Open Meetings Act litigation exception did not apply to settlement agreements that did not arise out of closed meetings but were simply negotiated by counsel).

+ Courier-Journal & Louisville Times Co. v. O'Bannon, 15 Media L. Rep. 1935 (Ky. App. 1988) (access to civil arbitration award granted).

Maine

+ Doe v. Department of Mental Health, Mental Retardation, and Substance Abuse Services, 699 A.2d 422 (Me. 1997) (arbitrator's decisions regarding disciplinary action taken against state employees did not fall within confidentiality exception to Freedom of Access Act and could be disclosed).

- Doe v. Roe, 495 A.2d 1235 (Me. 1985) (denying newspaper the right to intervene to challenge secret settlement, finding that news media has no sufficient interest in settlements).

+/- Guy Gannett Pub. Co. v. Univ. of Maine, 555 A.2d 470 (Me. 1989) (settlement agreement between university and former basketball coach was subject to disclosure pursuant to Freedom of Access Act, except for sentence containing certain medical information, which was protected from disclosure).

+ Bangor Pub. Co. v. Univ. of Maine System, 1995 WL 870104, 24 Media L. Rep. 1792 (Me. Superior Ct. 1995) (university required to disclose documents relating to the financial terms of employee settlements, even though files were held by outside counsel).

Maryland

+ Baltimore Sun Co. v. Mayor and City Council of Baltimore, 755 A.2d 1130 (Md. 2000) (sealing the record of a confidential settlement violated the common law principle of openness regarding public access to court proceedings and records).

Massachusetts

- H.S. Gere & Sons, Inc. v. Frey, 509 N.E.2d 271 (Mass. 1987) (settlement documents could remain "impounded" because information sought was not generally public information; parties and witnesses had legitimate expectation that information would remain private).

Michigan

+ Heritage Newspapers Inc. v. City of Dearborn, 1995 WL 688259, 23 Media L. Rep. 2338 (Mich. Cir. Ct. 1995) (settlement agreements in lawsuits involving the city are public records subject to disclosure).

Minnesota

+ Minnesota v. Hennepin County, 505 N.W.2d 294 (Minn. 1993) (Minnesota courts have inherent judicial power to order closed settlement conferences when necessary, even if public bodies are parties to the litigation; in this case, trial court erred in closing conference between city and county because it was not designed to resolve lawsuit and was therefore subject to Open Meetings Law).

- Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197 (Minn. 1986) (proper for judge to seal settlement).

Missouri

- Tuft v. City of St. Louis, 936 S.W.2d 113 (Mo. App. 1996) (settlement agreement between city and one of its employees was exempt from disclosure under exemption for records relating to litigation involving a public governmental body).

Nevada

+ McKay v. Board of County Com'rs of Douglas County, 746 P.2d 124 (Nev. 1987) (there is no exception to the open meeting law for discussions between county board and attorney concerning proposed settlement of claim).

+ Nevada recently passed a law that prohibits government officials from secretly settling lawsuits. Any settlement involving a government agency or employee is deemed a public record, pursuant to A.B. 277. However, this statute has not yet been interpreted by any case law.

New York

- Glens Falls Newspapers v. WWIDA, 684 N.Y.S.2d 321 (N.Y. App. 1999) (FOI request for access to confidential settlement agreement denied on ground that disclosure of agreement would be advantageous to competitors).

Ohio

+ State ex rel. Findlay Pub. Co. v. Hancock Cty. Bd. of Comm'rs., 684 N.E.2d 1222 (Ohio 1997) (settlement agreement entered into by county in federal civil rights lawsuit must be disclosed; confidentiality provision did not preclude disclosure under Public Records Act; fact that board no longer had actual possession of settlement agreement did not relieve it of duty to disclose agreement; exception from open meeting requirement for conferences with counsel regarding litigation did not exempt agreement from disclosure).

+ State ex rel. Sun Newspapers v. Westlake Board of Education, 601 N.E.2d 173 (Ohio App. 1991) (settlement agreement between board of education and former employee was a public record; public entity cannot enter into enforceable promises of confidentiality with respect to public records).

Pennsylvania

+ Morning Call, Inc v. Housing Authority of City of Allentown, 769 A.2d 1246 (Pa. Cmwlth. 2001) (settlement agreement between city housing authority and utility business was public record; confidentiality clause did not preclude access to full, unredacted copy of release).

+ Morning Call, Inc. v. Lower Saucon Township, 627 A.2d 297 (Pa. Cmwlth. 1993) (settlement agreement between township and private party was public record subject to public inspection and copying).

-/+ CMS Enterprise Group v. Ben & Jerry's Homemade, Inc., 1995 WL 500847 (Pa.Com.Pl. 1995) (holding that there is no right of access to summary trial because it is an extension of the settlement conference; also ruling that the advisory verdict would be sealed until settlement or jury verdict after full trial; however, also ruling that media may attend summary trial up to verdict stage and may attend verdict stage if they agree not to publish the result until after settlement or full trial verdict; summary trial judge shall release to the media the results of the summary trial either upon settlement or full trial verdict).

Tennessee

+ Contemporary Media, Inc. v. City of Memphis, 1999 WL 292264 (Tenn. App. 1999) (holding that a governmental entity cannot enter into confidentiality agreements with regard to public records; settlement agreement with city is a public record).

Texas

+ Thomas v. El Paso Cty. Comm. College Dist., 2001 WL 815049 (Tex. App. 2001) (community college district was compelled, under Public Information or Open Records Act, to disclose settlement agreement from suit by student).

- In re Kaiser Foundation Health Plan of Texas, 997 S.W.2d 605 (Tex. App. 1998) (complex case that found that Texas Rule of Civ. Proc. 76a, which governs the sealing of court records, does not apply to ADR agreements governed by Rule 11; newspaper sought documents introduced at summary jury trial, but law provided that documents introduced at summary jury trial are not subject to a Rule 76a request).

Virginia

+ Shenandoah Publishing House, Inc. v. Fanning, 368 S.E.2d 253 (Va. 1988) (erroneous to seal settlement and other documents without compelling justification).

+ LeMond v. McElroy, 391 S.E.2d 309 (Va. 1990) (Commonwealth's accounting records, including payment request for settlement check and computer sheet showing amount paid as result of settlement agreement, were not documents compiled specifically for use in litigation so as to come within exception to Freedom of Information Act).

Washington

+ Yakima Newspapers, Inc. v. City of Yakima, 890 P.2d 544 (Wash. App. 1995) (settlement agreement between city and former fire chief was public record which must be disclosed to newspaper).

+ Pierce-Herald v. City of Puyallup, 15 Media L. Rep. 1527 (Wash. Superior Ct. 1988) (settlement agreement resolving suit against city is a public record and must be disclosed).

West Virginia

+ Daily Gazette Co., Inc. v. Withrow, 350 S.E.2d 738 (W.Va. 1986) (settlements of federal civil rights suits against sheriff were public records subject to disclosure under Freedom of Information Act despite confidentiality agreements).

Wisconsin

+ In re Estates of Zimmer (Zimmer v. Mewis), 442 N.W.2d 578 (Wis. App. 1989) (there is a presumptive right of access to settlement records).

+ C.L. v. Edson, 409 N.W.2d 417 (Wis. App. 1987) (affirming trial court's order unsealing settlement documents in a case against a psychiatrist for alleged sexual and psychological abuse of patients, including minors and incompetents).

+ Journal/Sentinel, Inc. v. School Bd. of School Dist. of Shorewood, 521 N.W.2d 165 (Wis. App. 1994) ("memorandum of understanding" reciting settlement terms of lawsuit was subject to public disclosure under public records law).

+ Schnell v. Farmers Insurance Exchange, 23 Media L. Rep. 1542 (Wisc. Cir. Ct. 1994) (settlement documents in civil suit involving minors are open to public; strong public interest in ensuring that children are treated fairly by judicial system).