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September 24, 2002


The opinion of the court was delivered by: Simandle, District Judge


On the second day of trial in this case alleging racial discrimination in employment by a public agency, the parties reached a settlement agreement, and the jury was discharged. Presently before this Court is a motion to intervene in this closed case by The Press of Atlantic City ("The Press") for the limited purpose of learning the terms of the Settlement Agreement between plaintiffs and defendant Delaware River and Bay Authority ("DRBA"). Oral argument was heard on September 20, 2002.

The principal issues presented are whether The Press has standing to intervene, whether intervention is proper, what judicial documents this Court has authority over, whether access will be granted to the judicial documents, and whether this Court has jurisdiction to decide access issues regarding documents that are not judicial documents but are held by the defendant DRBA and are related to the settlement of this case.

For the reasons stated herein, this Court has decided to grant The Press' motion to intervene in part to allow The Press to access this Court's two judicial records that relate to the settlement, namely, a rough-drafted settlement agreement and the transcript of a court proceeding where the parties testified and stated their understanding of the terms of the rough-drafted settlement agreement. This Court will deny the motion to intervene in part as it pertains to access to the actual settlement agreement in the DRBA's records. This denial is without prejudice to The Press' seeking access to the agreement by filing a complaint that asserts proper jurisdiction and a cognizable claim in either this Court or a state court.


The facts of the underlying case were discussed at length in this Court's two summary judgment opinions so will only be recounted here to the extent that they are pertinent to this matter. See Jackson v. DRBA, No. 99-3185, 2001 WL 1689880 (D.N.J. Nov. 26, 2001); Jackson v. DRBA, No. 99-3185 (D.N.J. June 6, 2002).

The underlying dispute involved a consolidated employment case by plaintiffs Albert Jackson, Donnie McKoy, and Dawn Pitt who alleged racial discrimination by defendants Delaware River and Bay Authority ("DRBA") and various supervisory DRBA employees. The plaintiffs, all African-Americans, were employed by the Cape May-Lewes ferry, which is operated by the DRBA.

A jury trial in the matter began on June 11, 2002. Then, on June 12, 2002, with a jury empaneled but out of the presence of the jury, the parties conducted further settlement discussions and reached a settlement agreement. The parties, through their attorneys, drafted the terms of a settlement agreement on a legal pad and signed it to indicate their agreement to its terms, which was referred to as the "memorandum" or "settlement memorandum" consisting of four pages. Then, under oath, they placed on the record their understanding of the terms, making reference to the drafted settlement agreement, and stated their agreement to its terms. All understood that the settlement agreement included a confidentiality term. The court proceeding was not formally closed because no one was present except the interested parties, but it was undertaken with the understanding that the settlement terms were confidential by agreement of the parties. Indeed, confidentiality was an express term of the agreement. It was agreed on June 12th that the Court would retain a copy of the settlement memorandum and that the case would be dismissed as settled, with the Court retaining jurisdiction to enforce the agreement if necessary. The settlement hearing of June 12, 2002 has not yet been transcribed, but, like almost any hearing, an interested member of the public or news gathering community can order a transcript at its own expense.

This Court then entered an Order that dismissed the action without prejudice to the right to reopen the action within 60 days if the settlement was not consummated. The jury was discharged.

Apparently, on June 13, 2002, The Press, a daily newspaper that serves readers throughout the Greater Atlantic City Region, learned that the action had been settled. (Press 8/7/02 Br. at 1.) Press reporters, Michael Diamond and Richard Degener, who had been covering the story, learned from James Salmon of the DRBA that the terms of the settlement were confidential and that The Press could not learn of them. (Id.)

The Press' legal counsel, Nelson C. Johnson, Esquire, then wrote letters to John T. Kelly, counsel for the DRBA, on June 18, 2002, June 25, 2002, and July 15, 2002 requesting the information and explaining its belief that the agreement is a public record that should be available to the press under the DRBA's Freedom of Information regulations. (Diamond Cert., Exs. A, B, C.) When the DRBA did not release the information, The Press filed this Motion to Intervene on August 12, 2002 for the limited purpose of learning the settlement terms.


A. The Press' Standing

As an initial matter, it is important to note that The Press has standing to intervene in this matter. The Third Circuit has "routinely found, as have other courts, that third parties have standing . . . to obtain access to information or judicial proceedings." Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994) (citations omitted). A newspaper has standing even if it "assert[s] rights that may belong to a broad portion of the public at large. So long as the `injury in fact' alleged by each intervenor is `a distinct and palpable injury to himself,' standing should not be denied." Id. (quoting United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978)).

Here, therefore, The Press, asserting the public's right to access judicial information, has standing to petition the court ...

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