Pennsylvania Newspaper Association
 

The Pennsylvania Supreme Court held Oct. 1 that a “confidential” settlement agreement relating to a sexual harassment lawsuit against the Westmoreland County Housing Authority is a public record. 

In Tribune Review Publishing Co. v. Westmoreland County Housing Authority, the court held that the agreement was a public record, despite the fact that it was negotiated and signed by the Housing Authority’s insurer (not by the agency), and despite the fact that it contained a “confidentiality provision.”   In simple terms, the court held that a settlement agreement negotiated on behalf of an agency by its agent is a public document.

The Housing Authority argued that because its insurer negotiated and signed the agreement, and no public money was spent to settle the matter, the agreement was not subject to disclosure.  The authority also claimed that because it was not in possession of the document, it had no obligation to obtain the document.

The Supreme Court disagreed.  The court found that because the settlement was based upon acts of the Housing Authority and involved conduct of the agency “in its official capacity”, the agreement is a public record.  The court emphasized that the insurer was acting as the Authority’s “agent” in reaching the terms of the settlement.  The court further concluded that the confidentiality clause in the agreement conflicts with public policy and the Right to Know Act and is therefore unenforceable.

The decision is significant for a number of reasons.  First, the court reaffirmed the principle that “confidentiality agreements” do not “trump” the public’s right to know.  Second, the court found that the agency had the duty to provide the agreement, despite the fact that the agreement was not in the agency’s possession.  As a result, it is now clear that an agency has the duty to provide public records in the possession of someone else, as long as the documents are within the agency's control.  Likewise, the decision makes it clear that an agency cannot avoid disclosing a document by granting its “agent” the authority to negotiate and/or sign the document. 

Finally, and perhaps most significantly, the court used broad language in explaining why the document was a “public record” as that term is defined under Pennsylvania Law.  In finding that the agreement is public, the court emphasized that the document involved public officials and public action.  It stated that because the settlement agreement “contains information related to the administration of the business of the public [it] is, therefore, a public record.”  The court's analysis focused on the fact that the settlement agreement involved conduct of the agency “in its official capacity.”