Expanding the Public's Right to Know: Access to Settlement Records under the First Amendment

Abstract

By arguing in lawsuits for a First Amendment right to observe trials and inspect judicial records, the press has pushed the courts to fashion a body of law governing access to what Alexander Hamilton called the "least dangerous" branch of government. To date, however, the Supreme Court has recognized only a constitutional right to attend criminal trials and pretrial criminal proceedings. This paper explores a question that is increasingly confronting the lower courts: whether the First Amendment right of access extends to settlement agreements and related documents in civil cases. These records are not inconsequential. Modern civil litigation involves myriad issues of public importance: corporate and government misconduct, sex and race discrimination, school desegregation/dangerous products, environmental harm, prison reform, voting rights. Although information of interest to the public might surface if a particular case goes to trial, the vast majority of lawsuits today-approximately 90 percent, according to some estimates-are settled and thus resolved without a trial on the merits. In connection with such settlements, judges frequently enter orders sealing court records reflecting the terms of the settlement agreement and other documents pertaining to the lawsuit. Some of these records might be available through legal avenues other than the First Amendment: the common law right of access, statutes or court rules providing that judicial records are to be available for public inspection, or more general "freedom of information" acts. Potential problems exist with respect to each of these routes, however. Although the general principle of openness is well established at common law, numerous exceptions have emerged that permit judges to deny access to judicial records. Moreover, courts have often interpreted statutes dealing specifically with these records as merely having codified the common law and the various exceptions. Only a handful of courts have adopted rules governing access to documents in their possession, and some freedom of information statutes-including the federal act-do not apply to the judiciary. It is not surprising, therefore, that news organizations have asserted a First Amendment right of access to judicial records in general and settlement documents in particular. The legal battles are being fought in the lower courts, most of which have recognized a constitutional right to inspect some types of judicial records. Whether this right extends to all such records, including settlement documents, remains unclear.