From the PNA Legal Hotline

By Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: Are settlement agreements involving public agencies public? Can an agency rely upon a confidentiality clause in a settlement agreement to deny access?

A: Settlement agreements between public agencies and third parties are public records, and the Pennsylvania appellate courts have consistently held that confidentiality clauses in these agreements are not enforceable. In at least one case, the court awarded attorney’s fees against an agency, finding that the agency unreasonably denied access to a settlement agreement.

See Newspaper Holdings, Inc. v. New Castle Area School Dist., 911 A.2d 644 (Pa.Cmwlth. 2006)

Under the Right to Know Law, all records of state and local agencies are presumptively public. The presumption can only be overcome if an agency can prove that a record is confidential by law, privileged, or that a specific exemption limits access. There is no exemption in the Right to Know Law that shields settlement agreements and in fact, exemption 708(b)(17) makes it clear that the non-criminal investigation exemption does not apply to settlement agreements. In other words, settlement agreements are public records.

There are a number of appellate court decisions decided under the old Right to Know Law, which remain good law on this issue, and which make it clear that settlement agreements are public.

See:
Tribune-Review Publishing Company v. Westmoreland County Housing Authority, 833 A.2d 112 (Pa. 2003)
Newspaper Holdings, Inc. v. New Castle Area School Dist., 911 A.2d 644 (Pa.Cmwlth. 2006)
Morning Call, Inc. v. Lower Saucon Township, 627 A.2d 297 (Pa.Cmwlth.1993).

The Office of Open Records has relied on these cases in a number of RTKL appeals where the Office granted access to settlement agreements.