F. Settlement records

The Supreme Court has not addressed the issue, though lower courts have distinguished between settlement agreements that are “filed with, interpreted or enforced by the district court” and those that are not. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994). In Pansy case, the settlement agreement “was never filed with, interpreted or enforced by the district court," so the court held that there was no right of access to it. But the court contrasted that case with another where “we found that the settlement agreement was a judicial record because it had been filed with and enforced by the district court.” Id. (citing Bank of Am. Nat’l Trust and Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986)).

The Fifth Circuit reversed and vacated a lower court’s order sealing a court recording of a post-settlement conference meeting where the settlement amount was read into the court record, as well as sealed minutes regarding the meeting. A.J.W. v. Ackal, 954 F.3d 216, 225–26 (5th Cir. 2020). The court noted that the settlement agreement involved "public officials or parties of a public nature" and concerned matters of "legitimate public concern." Id. at 232.

The Eleventh Circuit permits records of sensitive information to be sealed when such sealing is narrowly tailored and serves a compelling interest. Even if the record has been sealed according to a settlement agreement, this sealing may be contested by a non-party and vacated by the court. See Brown v. Advantage Eng’g Inc., 960 F.2d 1013 (11th Cir. 1992). As a matter of practice, most district courts within the Eleventh Circuit will not retain jurisdiction to enforce the terms of a settlement unless the settlement agreement is filed in the court record, but that reason alone is not sufficient to support filing the settlement agreement under seal.

No reported First Circuit cases identified.

In the Second Circuit, settlement negotiations and draft agreements "do not carry a presumption of public access" because "[t]he judge cannot act upon these discussions or documents until they are final, and the judge may not be privy to all of them.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 n.4 (2d Cir. 2016); see also United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 857 (2d Cir. 1998) (concluding that “the presumption of access to settlement negotiations, draft agreements, and conference statements is negligible to nonexistent”); United States v. Glens Falls Newspapers, 160 F.3d 853, 858 (2d Cir. 1998). Though settlement materials may be presumed access, the Second Circuit has held that they may remain sealed when needed for fair and efficient resolution of cases. See, e.g., United States v. Glens Falls Newspapers Inc., 160 F.3d 853 (2d Cir. 1998).

Applying the experience and logic test where the courts look at whether there is a tradition of openness and whether openness serves a meaningful purpose, the Second Circuit has determined that settlement compliance reports are judicial records subject to a constitutional right of access. This First Amendment right may be overcome with privacy and safety concerns that require sealing. See United States v. Erie County, 2014 WL 4056326 (2d Cir. Aug. 18, 2014).

Although the Supreme Court has not addressed the issue, the Third Circuit has distinguished

between settlement agreements that are “filed with, interpreted or enforced by the district court” and those that are not when determining whether the public has a presumptive right of access. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994). In Pansy, the settlement agreement at issue “was never filed with, interpreted or enforced by the district court” and was therefore not a judicial record, subject to the right of access. Id.; see also Enprotech Corp. v. Renda, 983 F.2d 17, 20 (3d Cir. 1993) (holding that the public does not have a presumptive right of access to unfiled settlement agreements).

The Pansy court contrasted the situation before it with another case in which a settlement agreement was deemed to be a judicial record “because it had been filed with and enforced by the district court.” Id. (citing Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344–45 (3rd Cir. 1986)).  The generalized interest in encouraging settlements does not constitute good cause for sealing a filed settlement agreement.  Bank of Am. Nat’l. Trust & Sav. Assoc., 800 F.2d at 346.  Similarly, “‘[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning,’ do not support a good cause showing.” Pansy, 23 F.3d at 786 (quoting Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).

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)).

Once a settlement agreement is filed in district court, it becomes a judicial record and thus is presumptively accessible to the media and the public. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993). In certain circumstances, particularly those involving public entities, the process of creating a settlement is itself newsworthy and thus implicates First Amendment concerns. Davis v. Capital City Press, 78 F.3d 920, 929 (5th Cir. 1996).

The right of access to judicial records is greater than a simple right to the information in the records. Van Waeyenberghe, 990 F.2d at 848. Therefore, merely providing the media with details and information about what transpired in court proceedings or settlements is not equivalent to allowing access to the actual records themselves. Id. The subject matter of some cases, however, may present a public interest in accessing the settlement agreement that outweighs the parties’ interests in confidentiality. Urbino v. Associated Bldg. Servs., L.L.C., No. 18-4006 Section: "E" (2), 2019 U.S. Dist. LEXIS 16992, at *2–3 (E. D. La. Feb. 4, 2019) (denying a joint motion to seal an FLSA settlement due to the “strong presumption in favor of keeping the settlement agreements in FLSA wage-settlement cases unsealed and available for public review”).

In Shane Group, Inc. v. Blue Cross Blue Shield, 825 F.3d 299 (6th Cir. 2016), the court held that “[c]lass members cannot participate meaningfully in the process contemplated by Federal Rule of Civil Procedure 23(e) unless they can review the bases of the proposed settlement and the other documents in the court record.”  Id. at 309.  Thus, an unnamed class action plaintiff should have access to court records relied upon for a proposed settlement, because without such access “[t]he Rule 23(e) objection process seriously malfunctioned…”  Id.

When a district court sealed documents relating to the litigants’ settlement pursuant to their request, a newspaper's “presumptive right to access was implicated, and [it] should have been allowed to intervene for the limited purpose of challenging the district court's order.” Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000) (remanding for determination of access right).  On appeal after remand, the Seventh Circuit held that the newspaper was entitled to a copy of the settlement agreement that was in the court files under seal.  The court observed that “[o]rdinarily . . ., settlement agreements, like most arbitration awards and discovery materials, are private documents . . ., not judicial records . . ., because the parties will file a stipulation of dismissal pursuant to which the suit will be dismissed without further ado or court action,” and the settlement agreement “will then have the identical status as any other private contract.” Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002).

However, in Jessup, the settlement agreement “was submitted to and approved by the judge and a copy deposited in the files of the court and then ordered sealed. . . . Whatever the rationale for the judge's participation in the making of the settlement in this case, the fact and consequences of his participation are public acts. . . .The public has an interest in knowing what terms of settlement a federal judge would approve and perhaps therefore nudge the parties to agree to.”  Id. at 929.  “[T]he district court's files now contain a document that reflects input by a federal judge, and so the document is presumptively a public document. . . . [N]either the magistrate judge nor any of the parties has given us any reason to think the presumption might be rebutted in this case.”  Id. at 929-30.

“If though it is part of the judicial record the settlement is made without any court action,” i.e., approval, “there will rarely be a good reason to require that its terms be made public, because making them public would not reveal anything about judicial activity.”  Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 834 (7th Cir. 2013) (Posner, J., in chambers).  “[F]or the most part settlement terms are of potential public interest only when judicial approval of the terms is required, or they become an issue in a subsequent lawsuit, or the settlement is sought to be enforced. . . . In all such cases the presumption of a right of public access to court documents should apply.”  Id. CompareHadley v. AstraZeneca Pharmaceuticals PLC, No. 18-cv-1068-JPG-DGW, 2018 WL 4491184, *3 (S.D. Ill. Sept. 19, 2018) (where court’s decision did “not in any way rest on the content of” a Settlement/Release proffered by party, “the public’s interest in access to that document is negligible since it would add little or nothing to the public’s understanding of the Court’s decision in this case. Therefore, the parties’ interest in confidentiality is greater than the public’s interest in access to the document, and the document should remain under seal”).

“Calling a settlement confidential does not make it a trade secret, any more than calling an executive's salary confidential would require a judge to close proceedings if a dispute erupted about payment (or termination). Many a litigant would prefer that the subject of the case . . . be kept from the curious (including its business rivals and customers), but the tradition that litigation is open to the public is of very long standing.”  Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (in dispute over breach of settlement agreement, blanket sealing of record and closure of proceedings was improper); accord Herrnreiter v. Chicago Housing Auth., 281 F.3d 634, 637 (7th Cir. 2002).

There appears to be no Eighth Circuit case law discussing the right of access to civil settlement records.

Alabama courts do not appear to have specifically addressed this issue, but absent settlement records being filed with, interpreted or enforced by an Alabama court, the right of access that is generally applicable to judicial records would not apply.

The Alaska Supreme Court held in 1989 that the public is entitled to access to settlement agreements in which at least one party is a public entity, despite confidentiality provisions included in the agreement. “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.” Anchorage School Dist. v. Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (citing AS 44.62.310–.312).

No published decisions.

If the parties to a lawsuit wish to enter an agreement and keep it secret, they may agree upon a settlement and file a motion to dismiss litigation between them. Arkansas Best Corp. v. Gen. Elec. Capital Corp., 317 Ark. 238, 247, 878 S.W.2d 708, 712 (Ark. 1994). In that situation, the settlement remains their private business. Id. If, however, they wish to make the settlement a court record and seek the imprimatur of a court, then it becomes the public’s business. Id.

Although settlement discussions are confidential, settlement terms as presented to the court are subject to the presumption of access, and the burden is on the movant to demonstrate that serious injury would occur absent sealing. See Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 370, 74 Cal. Rptr. 2d 69 (1998) (reversing trial court; holding that newspaper was entitled to access to sealed court records to learn the amount of a settlement reached between school insurer and a minor student sexually assaulted at school); see also Wild, Carter & Tipton v. Yeager, No. F070631, 2017 WL 4564230, *3-4 (Cal. Ct. App. 2017) (unpublished) (“the mere deprivation of the right to enforce a contractual obligation is not, without an additional showing of serious harm, sufficient to override the public’s right of access to the courts”) (internal citation and quotations omitted) (unsealing records surrounding settlement agreement); Bhaktivedanata Book Trust Int’l, Inc. v. Int’l Society for Krishna Consciousness, Inc., No. B209982, 2010 WL 685320, *4 (Cal. Ct. App. 2010) (unpublished) (“courts have also recognized that mere agreement between parties is not enough to seal court records and the parties must show some serious injury that would occur absent a sealing order”). One Court of Appeal made clear that “a settlement agreement which had a confidentiality provision could not be sealed unless there was a showing of serious injury which would result from public disclosure.” Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, 106, 4 Cal. Rptr. 3d 823 (2003).

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

The presumption of openness does not apply to records from settlement conferences or negotiations, or related documents. Conn. R. Sup. Ct. §§ 11-20A(i) (civil); 25-59A(g) (family). It does, however, apply to settlement agreements filed with the court or “incorporated into a judgment of the court.” Id.  When filed with a court, settlement records become like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

A district court in the District of Columbia ordered the unsealing of minors’ settlement documents in civil litigation against the District of Columbia over a deadly Metrorail accident. In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 7–11 (D.D.C. 2013). The court found, first, that the documents were “plainly” judicial records, as the documents consisted of filings on which the court relied to approve settlement and court orders approving settlement. Id. at 7. Next, the court found that the first Hubbard factor regarding the need for public access to the documents at issue weighed heavily in favor of disclosure.

While the court in Fort Totten recognized a heightened public interest in settlement documents where a government entity is a party, the court emphasized that “a court’s approval of a settlement, even between private parties, is a matter which the public has the right to know about and evaluate . . . .” Id. (internal quotations omitted). “[T]he public has an interest in knowing what terms of settlement a federal judge would approve and perhaps therefore nudge the parties to agree to . . . .” Id.

The court in Fort Totten also found that documents relating to confidential mediation agreements should be disclosed where the District of Columbia initiated litigation to enforce the confidential agreement against the agreement’s express terms. Id. at 15-16 (“[A] party who enters into an agreement to keep mediation strictly confidential should not expect to retain confidentiality if it brings a dispute arising out the mediation to a court’s attention, contrary to the terms of the confidentiality agreement.”). The court has authority to unseal case files sealed pursuant to settlement and prior court order, in view of the lack of any assertion by the parties that the documents must remain sealed because the parties detrimentally relied on the court's confidentiality order, or that the court's purpose in signing the order was to encourage settlement. Sogeclif U.S.A. v. Decludt, 16 Media L. Rep. 1765 (D.D.C. 1989).

D.C. courts have not explicitly addressed this issue, although the D.C. Circuit has held that “[t]o the extent a First Amendment right to post-judgment civil records exists, it does not exceed . . . the traditional common law right.”  In re Reporters Comm. for Freedom of Press, 773 F.2d 1325, 1339 (D.C. Cir. 1985). Additionally, in In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 6 (D.D.C. 2013), the U.S. District Court for the District of Columbia unsealed a number of settlement-related documents, including settlement agreements with minors and documents relevant to settlement negotiations among other parties.

Settlement agreements filed with a court are presumptively open. Miami Herald Publ’g Co. v. Collazo, 329 So. 2d 333 (Fla. 3d DCA 1976). To seal such documents, a proponent of closure must satisfy the three-prong Barron test, discussed above in Section VI.A., to overcome the strong presumption of openness in civil proceedings. See also Fla. R. Jud. Admin. 2.420.

However, the Sunshine in Litigation Act generally prohibits secret settlement agreements involving government entities. If such agreements are not filed with the court, they are accessible from the government agency or its attorney under Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, even if there is a confidentiality provision contained in the agreement.

Section 69.081(8)(a) provides that “[a]ny portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against the state, its agencies, or subdivisions or against any municipality or constitutionally created body or commission is void, contrary to public policy, and may not be enforced.” Section 69.081(8)(b) provides that “[a]ny person having custody of any document, record, contract, or agreement relating to any settlement as set forth in this section shall maintain said public records in compliance with chapter 119 [Florida’s Public Records Act].” Section 69.081(8) can also be used to void agreements that would silence a source who signed a settlement agreement containing a confidentiality provision prohibiting the source from discussing the settlement.

The Sunshine in Litigation Act also prohibits secret settlement agreements or the entry of judgments that conceal a “public hazard,” as defined in the act. See §69.081(3), Fla. Stat.

Settlement agreements filed with a court are inherently public documents and are available for public inspection in accordance with Rule 21 of the Uniform Superior Court Rules unless the harm otherwise resulting to a person’s privacy interest clearly outweighs the public interest. Atlanta Journal v. Long, 258 Ga. 410, 415 (1988). In Long, the Supreme Court of Georgia rejected the argument that the public interest in promoting private settlements before trial justifies limiting public access to pre-judgment court records. See also City of Helen v. White County News, 1996 WL 787416, 25 Media L. Rep. 1123 (White County 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).

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.

The Illinois Appellate Court held that the right of access extends to all documents filed with the court, including settlement agreements. In re Marriage of Johnson, 232 Ill.App.3d 1068, 1074, 598 N.E.2d 406, 410, 174 Ill. Dec. 209, 213 (Ill. App. Ct. 4th Dist. 1992). The court also held that the right of access applies to the transcripts of hearings during which the terms of settlement documents were recited to the court, even when the settlement documents themselves were ultimately not submitted to the court. Id. Similarly, in Fidelity Financial Services, Inc. v. Hicks the Illinois Appellate Court held that the right of access may attach to settlement agreements in class action suits and may even attach to settlement agreements in suits that involve nondisclosure clauses if the agreements are part of the public record. Fid. Fin. Servs., Inc. v. Hicks, 267 Ill. App. 3d 887, 893-94, 642 N.E.2d 759, 763-64, 204 Ill. Dec. 858, 862-63 (Ill. App. Ct. 1st Dist. 1994).Another Illinois appellate court added a restriction to the right of access to settlement agreements when it ruled that the right does not outweigh the compelling interest of the privacy rights of medical patients under HIPAA. Coy v. Wash. Cnty. Hosp. Dist., 372 Ill. App. 3d 1077, 1084, 866 N.E.2d 651, 658, 310 Ill. Dec. 490, 497 (Ill. App. Ct. 5th Dist. 2007). The court, however, permitted disclosure of the agreement itself with only the names of the nonparty patients redacted. Id. However, another Illinois appellate court held “doctor-patient privilege in Illinois does not protect the name and contact information of a patient, when it is that information alone that is sought.” Ruzzier v. Nw. Lake Forest Hospital, No. 1-16-1300-U, ¶ 20, 2017 WL 2124349 *3 (Ill. App. Ct. 1st Dist. 2017).

Settlement records open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). However, parties may enter into private settlement agreements that they deem confidential.

Settlement agreements are typically not filed in Iowa state court because a party can voluntarily dismiss a case without court order until ten days prior to the date of trial under the Iowa Rules of Civil Procedure. Therefore, most settlement agreements will not be filed with the court or subject to a right of access. However, settlement agreements involving governmental entities are generally subject to public access. See Iowa Code § 22.13 (2018). In Des Moines Sch. Dist. v. Des Moines Register, the Iowa Supreme Court held that a settlement reached between the school board and a former principal must be made public under Iowa public records law. 487 N.W.2d 666 (Iowa 1992).

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 (1993), http://ksag.washburnlaw.edu/opinions/1993/1993-055.htm.  However, the Attorney General acknowledged that settlement agreements involving a city—or specific portions of such settlements—might be exempted from disclosure under KORA's personal privacy exemption, as well as on the basis of “federal or state laws, Supreme Court rules, or other exemptions.”  Id.  Nevertheless, these exemptions should be construed narrowly in light of the state's strong presumption of open public records. See K.S.A. 45-216.

Kentucky’s seminal case on access to court records, Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), involved a settlement agreement between county government and county officials and a former police officer who sued them.  The court held that “[t]hese circumstances weigh in favor of requiring the record to be open to public inspection.”  Id. at 130.  Similarly, in Lexington-Fayette Urban Cty. Gov’t v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997), the Kentucky Supreme Court held that Kentucky’s Open Records Act required disclosure of a settlement agreement between a public agency and a private litigant despite the fact that the settlement agreement contained a confidentiality clause.  The Supreme Court reaffirmed that holding in Cent. Ky. News-Journal v. George, 306 S.W.3d 41 (Ky. 2010).

Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request. See, e.g., Times Picayune Publ’g Corp. Bd. of Supervisors, 845 So. 2d 599, 606 (La. 2003); Dutton v. Guste, 395 So. 2d 683, 685 (La. 1981) (holding that settlement agreements “are public records as contemplated by La.R.S. 44:1(A)(2)”).

 

In general, the fact of a settlement is usually a matter of public record in that the parties will either file a stipulation of dismissal or motion for dismissal reflecting the fact of settlement. The terms of settlement are typically confidential, unless a settlement agreement is filed with the court. If a settlement involves a public entity, the settlement agreement may be obtained directly from the entity pursuant to Maine’s Freedom of Access Act, 1 M.R.S.A. § 401 et seq.; settlement agreements with public entities are public records under Maine law. Guy Gannett Publ’g Co. v. Univ. of Maine, 555 A.2d 470, 471–73 (Me. 1989).

The rule governing court approval of minor settlements does not itself provide for confidentiality of settlement records or related proceedings, but motions to seal such proceedings are sometimes filed and rarely challenged.

In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Maryland Court of Appeals considered whether a court could close the courtroom while the terms of a civil settlement agreement were placed on the record. The Court found that “[t]he common law rule that court proceedings, records, and documents are open to the public is fully applicable in Maryland except to the extent that the principle has been modified by legislative enactments or decisions by this Court.” Id. at 1135. Recognizing the “‘public’s right of open access to courtrooms’ as well as the ‘right to inspect and copy judicial records and documents,’” and finding no countervailing provision in any state statute or rule that would allow the court to close the proceedings, the court held that the trial court had erred in closing the proceedings and sealing the records of the settlement. Id. at 1136 (citation omitted). While the issue of courtroom closure was moot, the Court of Appeals ordered that the press be allowed to inspect the record, including the terms of the settlement.

Massachusetts’ highest court, the Supreme Judicial Court, has affirmed a denial of access to an impounded settlement agreement where that agreement involved discovery information that was “intensely personal,” and the parties were not public figures and had a reasonable expectation of privacy in the material. See H.S. Gere & Sons, Inc. v. Frey, 509 N.E.2d 271, 273–74 (Mass. 1987) (conducting impoundment analysis before the Uniform Rules on Impoundment Procedure went into effect, although considering similar factors). In Frey, the Supreme Judicial Court noted with approval that the trial court judge “did not rely on the fact that the parties had agreed that the case would remain impounded.” Id. at 273. See also Unif. R. Impound. P., Rule 7(b) (“Agreement of all parties, interested nonparties, or other persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause.”).

In Gleba v. Daimler Chrysler Corp., No. 98230, 2001 WL 1029678 (Mass. Super. Aug. 6, 2001), the trial court declined to impound records of a settlement between a car manufacturer and a plaintiff whose deceased spouse had died due to the car’s allegedly defective door latch.  The court reasoned that “such an impoundment order would serve as a secrecy mechanism that conceals information of harmful products or practices from the public and function[s] as a claim avoidance and claim management tool.”  Id. at *3.  Even though the parties had agreed to the proposed impoundment order, the court concluded that such an order would be “abusive to the Court and to the public. . . .” Id.

The common law right of access extends to settlement documents that are filed with the court. This may be overcome by a “substantial showing” that privacy interests outweigh the right of access. See Osenroth v. Deere & Co., 2012 U.S. Dist. LEXIS 127507 (S.D. Mich. Sept. 7, 2012).

The Minnesota Supreme Court has held that there is no constitutional right of access to settlement documents or the transcripts of settlement hearings that have been sealed by the court. Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 204 (Minn. 1986). The court, however, recognized that there is a common law presumption in favor of granting the public access to the documents filed with the court. Id. at 205; see also Bohnen v. Dorsey & Whitney, LLP, 45 Media L. Rep. 1881 (Minn. Dist. Ct. Hennepin County 2017). Therefore, a party who seeks to restrict access to settlement documents and transcripts of settlement hearings filed with the court must show that there are “strong countervailing reasons why access should be restricted.” Schumacher, 392 N.W.2d at 205–06; Nelson v. Bremer Trust, N.A., 44 Media L. Rep 2367, 2370, 2373 (Minn. Dist. Ct. Hennepin County 2016). “Absent such a showing, a court may not restrict access to settlement documents and transcripts that have been filed with the court.” Schumacher, 392 N.W.2d at 206; see also Nelson, 44 Media L. Rep at 2373 (“When a court is charged with the duty to review the terms of a settlement, that settlement is not automatically entitled to any more confidentiality than a judge’s decision or jury’s verdict embodying the same terms.”).

Under Mississippi law, settlement agreements may be protected from the reach of Public Records Act requests. See Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012) (trial court, relying on Public Records Act, abused its discretion in denying motion to preserve confidentiality of settlement agreement reached in wrongful death action against motor vehicle manufacturer).

Settlement records of civil cases in which a governmental entity is a party are open unless the court determines some individual privacy right clearly exceeds the merits of public disclosure.  § 2-9-303 MCA.  Settlement records of civil cases involving only private litigants are rarely filed with the court.  The only record will be an order of dismissal reflecting a settlement of the case.

Settlement agreements filed with the court or approved by the court should be publicly available. Most private party settlements are not filed or judicially approved, and Nebraska law does not prohibit them from containing confidentiality clauses.

Neb. Rev. Stat. § 84-713 (Reissue 2014) effective September 3, 2010, requires public entities (except the State) to maintain a public, written record of all settled claims. Any settlement by a public entity, except the State, with financial consideration in excess of $50,000 or 1% of the entity’s budget, whichever is less, must be approved at an open meeting.

Provided that settlement records do not have the effect of concealing a public hazard, a court may seal records which contain confidential terms of a settlement agreement of the parties.  SRCR 3(4)-(5); cf. Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216 (2013) (holding that Foreclosure Mediation Program (FMP) records are not subject to disclosure); 2013 Nev. Op. Att'y Gen. No. 08 (Dec. 27, 2013) (reports submitted to Board of Medical examiners which contain confidential civil malpractice settlement amounts are public records which must be open to public inspection).

Settlement records, like other court records filed with the court, are subject to the right of access discussed in “Overcoming a presumption of openness” above.

With respect to settlements that resolve claims against New Mexico agencies, the agreements can be obtained only following the expiration of a confidentiality period and upon request under the Inspection of Public Records Act. As of June 20, 2019, however, Governor Michelle Lujan Grisham’s administration announced an intention to publish settlements online as soon as allowable by law: either 180 days after the settlement is reached or the department closes the claim administratively. Dan McKay, NM to Start Posting Legal Settlements Online, Albuquerque Journal (June 20, 2019, 10:47 PM), https://www.abqjournal.com/1331040/nm-to-start-posting-legal-settlements-online.html. Otherwise, the New Mexico Mediation Procedures Act, NMSA 1978, Section 44-7B-4, sets forth that “all mediation communications are confidential, and not subject to disclosure and shall not be used as evidence in any proceeding.” A district court's denial of a motion to seal is reviewed for an abuse of discretion. Fred Loya Ins. Co. v. Swiech, 2018-NMCA-022, ¶ 16, 413 P.3d 530, 534.​

In certain context, settlement records are considered “judicial documents and court records[.]” Matter of Hayes, 59 Misc. 3d 543, 547–48, 72 N.Y.S.3d 358 (N.Y. Sur. 2018).  For example, where settlement papers “are required filings in connection with an application for judicial approval of the settlement of claims,” they are properly considered judicial documents.  Id.

However, one court permitted the temporary sealing of settlement terms where the parties had “clearly expressed that confidentiality was a necessary condition” to the settlement, even though the rest of the settlement was entered into the record with the court. In re E. 51st St. Crane Collapse Litig., 31 Misc. 3d 406, 415–16, 920 N.Y.S.2d 584, 591–92 (Sup. Ct. 2011) (emphasis original).  The court concluded that the interest in confidentiality outweighed the interest in public access, explaining that “disclosure of the settlement terms, sum and allocation at this juncture could derail” the  settlement, and “would certainly have a chilling effect on the willingness of defendants to participate in settlement negotiations in the remaining consolidated actions.” Id.

Where settlement records are properly considered court records, “the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access.”  Matter of Hayes, 59 Misc. 3d 543, 547–48, 72 N.Y.S.3d 358 (N.Y. Sur. Essex Cty. 2018).  And while “there is a strong public interest in encouraging the settlement of private disputes,” merely “conclusory claims of the need for confidentiality of settlement agreements are insufficient to seal a record.” Id.

SeeN.C.G.S. 132-1.3 (settlements made by or on behalf of public agencies, public officials, or public employees): no judge may "order or permit the sealing of any settlement document in any proceeding described [in N.C.G.S. 132-1.3(a)] except on the basis of a written order concluding that (1) the presumption of openness is overcome by an overriding interest and (2) that such overriding interest cannot be protected by any measure short of sealing the settlement. Such order shall articulate the overriding interest and shall include findings of fact that are sufficiently specific to permit a reviewing court to determine whether the order was proper." N.C.G.S. 132-1.3(b). Settlement documents in any proceeding against an agency of North Carolina government or its subdivisions are public records, except in medical malpractice actions against hospitals. See also Goldsmith v. Henderson County Bd. of Pub. Ed., 2003 WL 23341192 at *4 (N.C. Super. 2003) (granting newspaper's motion to require filing of parties' settlement, noting that N.C.G.S. 132-1.3 specifically provides that settlement agreements involving public agencies shall not be confidential).

Unless required to be filed with the court, settlement records in civil proceedings are typically confidential, unless otherwise disclosed by the parties.

The Ohio Supreme Court has held “the constitutional right of privacy does not preclude disclosure of [] sealed settlement figures.”  State ex rel. WBNS TV, Inc. v. Dues, 805 N.E.2d 1116, 1125 (Ohio 2004).  Therefore, though exempting settlement figures from disclosure may have strong policy arguments behind it, the court may not do so based on policy alone.  Id. at 1124. If a court uses a record, such as an application for approval of a settlement, in making a decision, the record becomes a public document subject to disclosure.  Id. at 1122. This principle also applies to settlements involving governmental entities.  State ex rel. Kinsley v. Berea Bd. of Educ., 582 N.E.2d 653, 655 (Ohio 1990).

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, the Pennsylvania Superior Court has held that a plaintiff’s petition for approval of a settlement is presumptively open and should not be sealed. A.A. v. Glicken, 237 A.3d 1165, 1170 (Pa. Super. 2020) (“To rebut the presumption of openness, and to obtain closure of judicial proceedings and records, a party must demonstrate ‘good cause.’”); see also Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129 (Lackawanna Cty. C.C.P. Sept. 23, 2004).

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.; see also A.A., 237 A.3d at 1170 (“[T]he trial court correctly observed that the chilling effect on settlements is insufficient, standing alone, to overcome the compelling public interest in open records.”).

Rhode Island Courts have not addressed the extent to which settlement records are subject to public access.

Unless sealed by court order, settlement records filed with the court may be requested under the South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq., and all filed settlement records are available through each county’s public index website. A link to each county public index webpage can be found at https://www.sccourts.org/caseSearch/.

The Tennessee Court of Appeals has found that joint petitions for approval of a minor’s settlement of a legal dispute may only be sealed where the justification for the sealing is “compelling.”  Kocher v. Bearden, 546 S.W.3d 78, 86 (Tenn. Ct. App. 2017).  Specifically, “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”  Id. (quoting In re NHC-Nashville Fire Litig., 293 S.W.3d 547, 560 (Tenn. Ct. App. 2008)).  The Court of Appeals has rejected general arguments of privacy (including financial privacy), embarrassment, undue burden, and concern for a minor.  Id. at 86-87; see also Kocher v. Bearden, No. W2017-02519-COA-R3-CV, 2018 WL 6423030, at *13 (Tenn. Ct. App. Nov. 13, 2018) (holding on appeal after remand that “citing only ‘confidential information pertaining to the minor plaintiff” was insufficient to justify sealing of the joint petition because “both the trial court and the appellees have failed to articulate any compelling reason for maintaining the seal”).

Filed settlement agreements fit within the definition of “court records,” to which the presumption of access applies under Rule 76a.  See Tex. R. Civ. P. 76a(2)(a).

Unfiled settlement agreements may also qualify as “court records” where the agreements “seek to restrict disclosure of information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.”  Tex. R. Civ. P. 76a(2)(b).  The financial portions of the agreements are excluded from this rule.  See id.

Settlement records that would “reveal the contents of settlement negotiations but not including final settlements of empirical data to the extent that they are not otherwise exempt from disclosure,” are considered classified. Id. § 63G-2-305(33). Further, in Society of Professional Journalists, Headliners Chapter v. Briggs, 675 F. Supp. 1308 (D. Utah 1987), the court considered a case in which the plaintiff requested settlement documents for a settled litigation in which the defendant was a party because of the serious allegations involving public officials. The court held that “[s]ettlement agreements involving public entities have been held to be public documents,” pointing to the fact that multiple statutes appear to cover the documents. Id. at 1310-11.

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").

Settlement agreements submitted to the court for approval are judicial records subject to the presumption of openness to the public. See Perreault v. The Free Lance-Star, 276 Va. 375, 387, 666 S.E.2d 352, 358 (2008); see also Brown v. Tashman, 105 Va. Cir. 152, 2020 WL 8835045, *2-3 (Fairfax Cir. Ct. Apr. 21, 2020) (“Since settling parties must seek court approval of their settlement, the public has a right to see how the Court exercises its authority.”). In Virginia, the terms of a settlement of a wrongful death claim must be approved by the court. See id.; Va. Code § 8.01-55.  A Virginia circuit court has held that there is “no principled distinction” between judicial approval of a wrongful death settlement under Va. Code § 8.01-55 and judicial approval of an infant settlement under Va. Code § 8.01-424, and therefore, the public has a presumptive right of access to infant settlement agreements submitted for approval under Va. Code § 8.01-424. See Tashman, 105 Va. Cir. 152, 2020 WL 8835045 at *2.  An agreement to reduce the amount of a lien held by the Commonwealth for medical services rendered must be approved by the court, and the court’s reasons set forth in a written order. See Kwang Li (Jo) Chan v. Commonwealth, 92 Va. Cir. 122, 2015 WL 13567760 (Augusta Cir. Ct. July 28, 2015); Va. Code § 8.01-66.9.

No Washington court has held specifically that the public’s right of access to court proceedings and records extends to records of settlement. A settlement agreement that has been submitted to the court for approval, or that is otherwise filed with the court, should be subject to the same constitutional right of access as any other court record. Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004). Settlement agreements involving public agencies may be available under the Public Records Act, if requested from an agency party.  See Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 324, 890 P.2d 544 (1995).

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to civil records/In general” above.  This rule applies to settlement records.  See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999). The United States District Court for the Southern District of West Virginia also has recognized that settlement agreements are presumptively open under the First Amendment and the common law. Harper v. Elk Run Coal Co., No. 2:11-cv-00305, 2012 WL 1999429, at * 1 (S.D. W. Va. June 4, 2012).  

However, most civil settlements between private parties are not put into court records, and therefore there is no public right of access.  On the other hand, if the settling entity is a public body in West Virginia, the settlement documents are subject to public access and disclosure under the West Virginia Freedom of Information Act even if the settlement documents are not part of the court file; in such circumstances, the request for the settlement records must be made to the custodian of records of the public body that was a party to the settlement.  Other types of civil case settlements that are required to be made public through a court approval are settlements involving minors and the estates of a deceased person, and class action settlements.

See Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shorewood, 186 Wis. 2d 443, 458, 521 N.W.2d 165 (Wis. App. 1994):

Furthermore, if the school board’s argument were accepted, public scrutiny of most if not all settlement agreements involving government would be barred – promises of confidentiality would then be de rigueur.  This would effectively end-run the openness mandated by Wisconsin’s public-records law, and the presumption of access.  If a lawsuit cannot be settled unless its terms are kept secret, the case will go to trial, where, absent special circumstances, public access is the rule . . . .

The presumption that public records in Wisconsin are open to the public is not outweighed by whatever benefits may have accrued to the public as the result of the Shorewood District’s promise to Moore that the terms of the settlement would not be disclosed to the public.

See C.L. v. Edson, 140 Wis. 2d 168, 182–86, 409 N.W.2d 417 (Wis. App. 1987):

The original parties first argue that because they are private individuals, there is no compelling public interest in disclosing the sealed [settlement] documents.  The presumption favoring disclosure reflects public interests that are independent of the parties’ status as private persons.

…

Moreover, sec. 807.10, requiring judicial review of settlements involving minors, represents a legislative mandate for scrutiny.  This mandate is better served when the public can monitor judicial supervision of minor settlements.

…

The parties have failed to show that the public’s interest in encouraging settlements overcomes the strong presumption favoring disclosure of court documents.

We conclude that the circuit court correctly weighed the considerations presented by the original parties in deciding that the public interest in disclosure outweighed any need for secrecy.

There is no case law in Wyoming regarding settlement records. It is presumed that settlements with public entities are open for public inspection as the Wyoming Supreme Court has ruled that any document respecting the expenditure of public funds must be “expressly textual.” Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994). There is no express exemption in the Public Records Act for settlement agreements.