D. Protective orders and government agreements to keep records confidential

Arguably, government agreements to keep records confidential would be void as contrary to public policy.  The agreement itself also could be disclosable as a public record under the CPRA unless exempt from disclosure under the pending litigation exemption of Section 7927.200, which expires upon termination of the litigation unless the record is protected under another statutory exemption such as attorney work product or attorney-client privilege.

The existence of a protective order does not necessarily provide a statutory basis for an agency to withhold an otherwise non-exempt public record. Practically speaking, however, agencies may be reluctant to produce public records subject to a court entered protective order absent a further court order.  This means that a requester may be forced to sue under the CPRA for non-disclosure or to move in the action in which the protective order was entered to have the protective order lifted to advance the purpose and policies of the CPRA.

Not specifically addressed.

Agencies may promise by contract not to disclose information that the Act does not require them to disclose, assuming that the contract is within the agency’s authority to enter and is otherwise valid. Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828, 837, 815 S.E.2d 841, 849 (2018).

A party requesting a protective order must show good cause.  “A district court should consider three criteria when evaluating the factual showing establishing good cause: (1) whether the harm posed by dissemination will be substantial and serious; (2) whether the protective order is precisely and narrowly drawn; and (3) whether any alternative means of protecting the public interest is available that would intrude less directly on expression.”  Comes v. Microsoft Corp., 775 N.W.2d 302, 305 (Iowa 2009).  In Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 236 (Iowa 2019), the Iowa Supreme Court affirmed the denial of a protective order requesting that certain police investigative reports be prohibited from disclosure to third parties, including the news media, because they were obtainable by the public under Chapter 22.

Documents that have been ruled exempt from disclosure by a protective order are exempt from disclosure under the Act.  See Bangor Pub. Co. v. Town of Bucksport, 682 A.2d 227, 229 (Me.1996).  The court has implicitly held that a confidentiality agreement between a government entity and a third-party does not exempt records from the Act.  In Guy Gannett Pub. Co. v Univ. of Me., 555 A.2d 470 (Me. 1989), the Court ordered disclosure of a settlement agreement between the University of Maine and a former basketball coach notwithstanding an agreement between the University and the former coach “that neither they, nor any of their officers, employees or representatives will disclose or communicate to anyone any portion or condition of this Settlement Agreement.”   555 A.2d at 474.

In addition, “A body, an agency or an official may seek protection from a request for inspection or copying that is unduly burdensome or oppressive by filing an action for an order of protection in the Superior Court for the county where the request for records was made within 30 days of receipt of the request.” 1 M.R.S.A. § 408-A(4-A). See also 35-A M.R.S.A. § 133-A(1) (outlining the procedure for the issuance of protective orders by the Public Utilities Commission).

If segregable, non-exempt portions of partially exempt records should be produced. Redaction is often physically done by blocking out allegedly exempt portions. G.L. c. 66, § 10(a); 950 CMR 32.03; Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 287-290, 391 N.E.2d 881 (1979); Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 648 N.E.2d 419 (1995). However, where the necessary redactions would be particularly extensive or burdensome, or might still allow for “indirect identification” of the redacted information, courts may decline production altogether.  See, e.g., Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 134 n. 2, 533 N.E.2d 1356 (1989) (declining a redaction order where “it would be both burdensome and unnecessary to force the [public record holder] to redact the reports in order to extract the nuggets of nonconfidential information” requested); Logan v. Comm'r of Dept. of Indus. Accidents, 68 Mass. App. Ct. 533, 536-37, 863 N.E.2d 559, 563 (Mass. App. Ct. 2007) (suggesting that a showing of both burden and non-necessity may be required).

Matter of New Jersey Firemen’s Association Obligation to Provide Relief Applications Under Open Public Records Act, 230 N.J. 258 (2017)

This case involved a government record request made to the New Jersey Firemen’s Association. The Association denied access to the requested records and filed a declaratory judgment action to obtain a judicial determination of its responsibilities under the Open Public Records Act. The Supreme Court of New Jersey held that once the Association denied access to the requested records, the Open Public Records Act authorized only the requestor to seek judicial review of that decision.

Protective orders directing the withholding or removal of pleadings or other materials from a public record may only be issued after a court has determined it is necessary in the interests of justice. 51 O.S. § 24A.29. The Oklahoma Supreme Court has stated that there are no provisions in the Open Records Act that allow parties to simply agree to seal a public record and submit a summary agreed order to the court. Shadid v. Hammond, 2013 OK 103, see also Ober v. State ex rel. Dep’t of Public Safety, 2016 OK CIV APP 2 (appellate court reversed a trial court’s issuance of a protective order that sealed the entire record and prevented public knowledge of a teacher’s conviction for driving under the influence and revocation of the teacher’s driver’s license).

Government agreements to keep records confidential have not been specifically addressed.

Section 317(c)(1)-(2) of the Public Records Act exempts from public inspection and copying “[r]ecords which by law are designated confidential or by a similar term” and “[r]ecords which by law may only be disclosed to specifically designated persons.”

Protective orders overcome the Open Records Law.  Government contracts with confidentiality agreements generally are subject to the balancing test.  See Journal Sentinel v. Sch. Bd. of Shorewood, 186 Wis. 2d 443, 521 N.W.2d 165 (Ct. App. 1994).