F. Settlement records
Settlement agreements not filed with the court are not judicial records to which a right of access attaches. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 644 (W.D. Va. 2006) (citing Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002)).
Settlements that require judicial approval and which are filed with the court constitute judicial records to which the public’s right of access attaches. See Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618 (E.D. Va. 2011) (denying motion to seal FLSA settlement agreement); Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 644 (W.D. Va. 2006) (granting motion to unseal Section 1983 settlement; “The equation changes dramatically when settlement agreements are filed with the court for its approval.”); see also Owino v. IBM Corp., No. 1:12-CV-1041, 2013 WL 2947146, *1 (M.D.N.C. June 14, 2013) (denying motion to seal FLSA settlement agreement; “Courts in recent years have been virtually unanimous in finding that settlements under the FLSA should not be sealed in the ordinary course.”).
“It is essentially impossible for the public to judge the approval process . . . if the terms of the settlement, and the compensation of counsel, are not spread upon the public record.” Hall v. Beverly Enterprises-W. Virgina, Inc., No. CIV. A. 2:10-0842, 2010 WL 4813307, *2 (S.D. W. Va. Nov. 19, 2010). Thus, a confidentiality provision in a court approved settlement agreement is “of no effect.” Martin v. Am. Honda Motor Co., 940 F. Supp. 2d 277, 280 (D.S.C. 2013).
The public’s right of access to judicially approved settlement agreements is not overcome by the public’s disinterest in the specific litigation. See Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618, 623 (E.D. Va. 2011) (“[W]hile it is true that the public’s interest in judicial documents is greater when the case itself is already one of great public attention, the right of access still must be protected even where the case at hand does not appear to be one in which the public has already expressed interest.”).
A generalized interest in confidential settlements—without more—is insufficient to rebut the common law presumption of public access. Topiwala v. Wessell, No. CIV. WDQ-11-0543, 2014 WL 2574504, *3 (D. Md. June 5, 2014) (granting motion to unseal settlement agreement.).
In a civil action arising out of an alleged breach of a settlement agreement, the plaintiff’s speculation and conjecture about the harm it will suffer by disclosure was insufficient to justify sealing the agreement. See Monster Daddy LLC v. Monster Cable Prod., Inc., No. CIV.A.6:10-1170, 2010 WL 3885502, *1 (D.S.C. Sept. 29, 2010) (citing Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 180 (4th Cir.1988)).
Where the litigants seek judicial approval of a settlement, their interest in maintaining the confidentiality of the terms of the settlement is weak. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640 (W.D. Va. 2006) (granting motion to unseal Section 1983 settlement agreement).
The fact of judicial approval, the government being a party to the settlement, the absence of an improper purpose of the requesting party and the failure to comply with mandatory sealing procedures are all factors that weigh against overcoming the public’s right of access to a judicially approved settlement agreement. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640 (W.D. Va. 2006).
Protecting a minor’s privacy interests and medical information has been held a sufficient interest to overcome the public’s right of access to judicially approved settlements. See Mears v. Atl. Se. Airlines, Inc., No. 5:12-CV-613-F, 2014 WL 5018907 (E.D. N.C. Oct. 7, 2014) (granting motion to seal minors’ medical records submitted in connection with motion to approve wrongful death settlements and to redact the financial terms in the settlement agreements).
A private settlement agreement becomes a judicial record to which a right of access attaches if the agreement is filed with the court in connection with a stipulation of dismissal. In such instances, “the parties are always free to choose not to file the terms of their settlement with the court.” Washington v. Bruraker, No. 3:02-cv-00106, 2015 WL 6673177, *7 (W.D. Va. Mar. 29, 2015) (citing Bank of Am. Nat. Tr. & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986)).
When a private settlement agreement is filed in connection with a motion to enforce the settlement, the parties may have a compelling interest in maintaining the confidentiality of terms not germane to the decision whether to enforce the settlement. See Copeland v. Dapkute, No. 8:17-cv-01566, 2018 WL 5619672, *9 (D. Md. Oct. 30, 2018) (citing Johnson v. City of Baltimore Dev. Corp., No. CIV.A. GLR-11-2174, 2013 WL 3934022, *4-5 (D. Md. July 29, 2013)).
Settlement agreements involving public entities are public record. Cowles Publ’g Co. v. Kootenai Cty. Bd. of Cty. Comm’rs, 144 Idaho 259, 265, 159 P.3d 896 (2007). However, “records of any risk retention or self-insurance program prepared in anticipation of litigation or for analysis of or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund” are not subject to disclosure. Idaho Code § 74-107(11). “These records shall include, but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in settlement shall be deemed a public record unless otherwise ordered to be sealed by a court of competent jurisdiction.” Id.
Kansas law allows a court to seal or redact records only after finding that a safety, property, or privacy interest “outweighs the strong public interest” in having access to information. K.S.A. 60-2617(d).
In an interpretation of the Kansas Open Records Act, the Kansas Attorney General has said that a settlement agreement entered into by a city is a public record, and it cannot be confidential. If a contractual provision attempts to close the conditions of the settlement agreement, it “is void as against public policy.” Op. Kan. Att’y Gen. No. 93-55.
The Pennsylvania Superior Court has noted that the public and press have a presumptive right to access settlement agreements filed with the court. Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960 (Pa. Super. 1989) (citing Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 342-43 (3d Cir. 1986)). Similarly, a Pennsylvania Common Pleas Court has held that a plaintiff’s petition for approval of a settlement is presumptively open. Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129 (Lackawanna Cty. C.C.P. Sept. 23, 2004). The court reasoned that because the petition is filed with the court, it is a public judicial record and is subject to a presumption of openness.
In Storms v. O’Malley, the Superior Court affirmed the trial court’s denial of a physician’s motion to seal the record in a medical malpractice case that resulted in a settlement. 779 A.2d 548, 570 (Pa. Super. 2001). The Superior Court held that the policy interest in encouraging settlements (which the physician argued could be facilitated by keeping records of settled cases confidential) was not sufficient to rebut the presumption of openness. Id.
Although many settlement agreements are not filed with the court and thus, do not become part of the court’s records, if settlement agreements require court approval or are entered into by a public entity, they will become publicly available. For example, class action settlement agreements must receive court approval, see V.R.C.P. Rule 23(e), as do settlement agreements involving the distribution of wrongful-death proceeds. See 14 V.S.A. § 1492; see also In re Estate of Simonds, No. 51-1-13, 2013 Vt. Super. LEXIS 1, *3-4 (Vt. Super. Ct. January 23, 2013) (holding that a private confidentiality agreement between parties is not in itself sufficient to overcome the presumption that a petition for approval of wrongful-death settlement presented to the court is publicly available). Similar case law holds that public entities cannot override the Vermont Public Records Act through a contract or settlement agreement. See e.g., Katz v. S. Burlington Sch. Dist., 2009 VT 6, ¶ 7, n.2, 970 A.2d 1226, 1228 (Vt. 2009) (noting that case law supports the view that a school district’s separation agreement and general release with its former superintendent is a public record subject to disclosure); Hoffman v. S. Burlington Sch. Dist., No. 1069-11-15, 2015 Vt. Super. LEXIS 96, *6 (Vt. Super. Ct. Dec. 10, 2015) (“a contract or settlement agreement cannot override the Public Records Act").