The Volokh Conspiracy
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In Lowthert v. Wilton Bd. of Ed., decided last month by Connecticut Judge Robert L. Genuario, "It became apparent that the parties would be filing competing motions to enforce a settlement agreement as both sides seem to think a settlement agreement had been reached, but they do not agree on the terms of what that settlement agreement." The question before the court was whether the parties could "seal certain documents that each wants to file in support of their respective motions to enforce a settlement agreement"; no, the court concluded:
Both the parties argue in their motions that "there is no interest of the public that overrides the confidential nature of the settlement agreement reached by the parties." Frankly, the court could not disagree more.
This case involves allegations that various officials failed to protect the health and safety of certain children who were students in the Wilton Public School System. The complaint contains allegations of conditions that might have impacted children attending the Miller-Driscoll School besides these plaintiffs.
To be sure, the officials denied those allegations and were prepared to assert their defense at trial. However, the parties each assert that they have made a determination to settle this case rather than to try the case. They have each determined that a settlement is in their best interests as they have every right to do. Because each party asserts that a settlement agreement was reached but disagree on the terms of that settlement agreement, they both seek a court order enforcing their respective alleged agreements.
The settlement of this case will involve a court proceeding. Public and elected officials claim to have entered into agreement which presumably represents their best judgment, under all the circumstances, as to the best way to resolve a case involving allegations of the nature contained herein.
The settlement agreement may involve the expenditure of substantial public funds. The evidence may involve the proceedings that occurred during the necessary deliberations and the method by which the parties may have come to an agreement. The public has every right to understand how the public and elected officials of the Town of Wilton and the Wilton Public Schools in the exercise of their best judgment sought to resolve this case.
The court is aware that this settlement involves the interest of minors who are or have been school children in the Wilton public schools. But the adult plaintiffs by choosing to proceed on behalf of their children without even applying to the court for the right to proceed under pseudonyms have already made the names of their children public and have publicly listed the alleged health conditions of those children for which they seek compensation. Any privacy rights that the children might have had, have already been waived by their parents and their original lawyers by proceeding in the manner that they chose to proceed during the past six years.
When parties choose to settle a case they often have the ability to do so without making the terms of the settlement public because they need not file anything with the court and need no orders from the court to effectuate the settlement.
In this case however the parties wish to engage in a judicial proceeding and obtain a court order or judgment based upon evidence that will be offered in support of their respective positions. The presumption that documents filed with the court shall be available to the public is very much in effect.
While there may be some cases when "there is no interest of the public that overrides the confidential nature of the settlement agreement reached by the parties," this is surely not one. This is a settlement that involves the deliberation of public officials, the possible expenditure of public funds, and determinations of those charged with running the Wilton Public Schools in the face of allegations that some of them or their predecessors allowed hazardous conditions to fester. The court cannot in good faith find that an order sealing the documents the parties would like sealed "is necessary to preserve an interest which is determined to override the public's interest in viewing such materials."
The plaintiff Marissa Lowthert additionally argues that the records the parties wish to file are protected from disclosure by the Federal Family Educational Rights and Privacy Act (FERPA). The court will first deal with the document that she has sought to have sealed under Motion #329. FERPA defines educational records as "records, files, documents and other materials" that "(i) contain information directly related to a student" and "(ii) are maintained by an educational agency institution or by a person acting for such agency or institution." The document that the plaintiff has lodged is not such a record. It is an email chain setting forth her views and requesting certain information from attorneys with whom she has been communicating. It is not a record that is maintained by an educational agency or institution or by a person acting for such agency or institution nor does it contain information directly related to a particular student. It is simply not a protected record as that is defined under FERPA.
The defendants' (with the plaintiff's support) seek to file under seal, exhibits A through G of their motion to enforce a settlement agreement. These documents do not constitute educational records either, they are emails between lawyers and unsigned draft settlement agreements.
While it may be somewhat meaningless to do so, given the plaintiffs' failure to proceed by pseudonym, the court will allow the parties to redact the names of the minor children prior to filing any document, because the court sees no public interest in identifying the particular children involved in this case. Generally speaking, the court would seriously consider allowing the names of minor children to be redacted in a case such as this. Clearly, the emails back and forth between lawyers are not educational records as they do not contain information directly relating to a student, rather they contain information related to the settlement of a court case.
However, even if some of the lodged records were determined to be "educational records" under FERPA, FERPA does allow disclosure of student's educational records if "such information is furnished in compliance with judicial order or pursuant to any lawfully issued subpoena upon conditions that parents and students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution." If the parties proceed to an evidentiary hearing on their competing motions to enforce a settlement agreement, the court will require and order the disclosure of exhibits A-G referenced in the motion to enforce the settlement agreement. This memorandum will serve as notice to the parents and the students of the court's intention to issue that order.
The ramifications of the parties' motion to seal, if followed to its logical conclusion, is that the court would have to close the courtroom to the public when it hears the competing motions to enforce the settlement agreement, as the court surmises that much of the testimony and exhibits that the defendants would offer in support of their motion would involve the items that they wish to seal at this point.
The court does not expect, nor have the parties argued, that the hearing on the motions to enforce the settlement agreement will involve intimate testimony about the conditions of children or their ability to perform or not perform in accordance with certain educational standards. None of the documents which the parties wish to seal contain such information. The court does not expect that those upcoming hearings will involve testimony or exhibits related to any disability or personal characteristic of the children (and if it does the parties are free to direct more narrow motions to such proposed testimony or exhibits). The proceeding at this juncture involves the terms of a settlement agreement which involves the decisions of public officials arising out of a claim which alleges failure to provide a safe and appropriate education environment.
Moreover, if the plaintiff prevails in her motion, she may ask this court to bind elected officials to the terms of a deal that they now say that they did not make. In that event the public would and should have a right to review the evidence upon which this court based any decision to bind these elected officials. The public has an overriding interest in the resolution of this case. If the parties choose to have the court make determination as to whether the parties entered into a binding agreement, then the public has an interest in the basis for that decision as well. This court will not deprive it to the appropriate public information.