The strong presumption in favor of access is fully applicable to
transcripts of a civil trial and exhibits admitted at trial, Littlejohn,
851 F.2d at 678-80, to transcripts of a preliminary injunction hearing,
Publicker, 733 F.2d at 1066-67, and to documents filed with the Court on
nondiscovery motions, Leucadia, Inc. v. Applied Extrusion Techs. Inc.,
998 F.2d 157, 165 (3d Cir. 1993).
Here, therefore, this Court finds that a transcript*fn3 of the
settlement hearing testimony held on the record on June 12, 2002, in
which the parties stated their understanding of the agreement, and the
settlement draft that was made part of the Court's file and was referred
to on the record, are "judicial records" that enjoy the presumption in
favor of access.
The actual settlement agreement which the parties eventually prepared
among themselves, on the other hand, is not a "judicial record" that this
Court can provide access to by way of a simple intervention motion. A
settlement agreement is not a judicial record when it is not filed with
the court, interpreted by the court, or enforced by the court. Pansy, 23
F.3d at 781. The agreement is not a judicial record even if the court
places an order of confidentiality over it or reviews its terms. Id. at
Here, it is undisputed that this Court never filed, interpreted, or
enforced the eventual formal written settlement agreement. No tenet of
law required the settlement agreement to be filed with the court, and it
was not. This Court has never seen the final document or read its terms.
As a result, the actual settlement agreement is not a "judicial record"
and The Press cannot seek access to it in this Court under the right of
Therefore, The Press can only seek access from this Court for the
disclosure of the June 12, 2002 transcript and the June 12, 2002 rough
D. Access to Judicial Records
The right of access is not absolute. While a presumption of openness
attaches to the discovery of "judicial records," it must be balanced
against the factors that weigh against access. Leucadia, 998 F.2d at
165. The burden is on the party who seeks to overcome the presumption of
access to show that the interest in secrecy outweighs the presumption.
Id. (citing Bank of America, 800 F.2d at 344).
Access is generally not permitted for internal documents of
administrative agencies, for state judicial discipline proceedings, for
documents which include trade secrets, or for material that is
impermissibly injurious to third parties. Miller v. Indiana Hosp.,
16 F.3d 549, 551 (3d Cir. 1994) (citations omitted). In "ordinary civil
litigation," however, closing judicial documents to the public is a very
"unusual step."*fn4 Id.
Here, this Court finds that The Press is allowed to access the judicial
records. The DRBA has not offered any persuasive
confidentiality outweighs the presumption of the right of access. It has
argued that the settlement agreement itself includes a confidentiality
provision. However, the agreement is not part of the record and is not
binding on this Court in this action.*fn5 This Court does acknowledge
that, while there was never a confidentiality order placed over the
record, the proceedings were undertaken with the assumption that they
would be confidential, consistent with the parties' expectations. This
Court understood that the terms of the agreement on June 12th should be
confidential pending final approval by the DRBA and final drafting of a
mutually agreeable settlement instrument by all counsel, which would take
some time. However, the reasons for such confidentiality related to the
structure of the DRBA and its need for agency-wide approval. Such
approval has been obtained, so this reason no longer provides support for
restricting access to the judicial records.
The DRBA's own "Freedom of Information" regulations support a finding
of access in this case. As a public agency, it has declared that its
policy is to perform "public business . . . in an open and public manner
so that the citizens of Delaware and New Jersey shall have the
opportunity to observe the performance of the Authority." (Press 9/13/02
Br., Ex. B at 1.) "Public business" is defined as "all matters which
relate in any way, directly or indirectly, to the performance of the
Authority's functions or the conduct of its business." (Id. at 1-2.)
While the DRBA exempts certain confidential matters from disclosure in
its regulations, its primary focus recognizes the public nature of its
work. The records in this case relate to the very public business of how
the DRBA treats its employees, handles its finances, and settles its
That the settlement agreement involved a public agency does not itself
require disclosure. Conceivably, if the publication of the settlement
would frustrate an ongoing investigation or unduly embarrass innocent
individuals, or if the plaintiff employees opposed disclosure for such
reasons, then the public interest in access to the settlement record
might yield to other strong interests, public or private. DRBA has not
made this Court aware of any such circumstances.
Therefore, this Court will allow The Press to intervene to the extent
that it seeks access the settlement agreement rough draft and the June
12, 2002 transcript, and will grant such access.
E. Access to Final Settlement Agreement under Freedom of Information
This Court will not consider, in the context of an intervention
motion, a claim of access to the formal, final, written settlement
agreement under the DRBA's Freedom of Information Regulations, (Press
9/13/02 Br. at Ex. B.), under the New Jersey Right to Know Law, N.J.S.A.
47:1A-1, et seq., or under the First Amendment because this Court's
jurisdiction over such claims is not clear from the parties' papers. The
Press has submitted no complaint in intervention to invoke a
jurisdictional basis for its dispute with the DRBA, or to state a cause
of action under applicable federal or state law. Because The Press is
present only upon a motion for permissive intervention under Rule 24(b),
supra, a federal court will not ordinarily permit an intervenor to launch
new claim that has no question of law or fact in common with the main
action. Here, although The Press seeks documents related to the
resolution of this case, its application to compel the DRBA to turn over
such documents fails to satisfy Rule 24(b)'s requirement that "an
applicant's claim or defense and the main action have a question of law or
fact in common." There was no claim or defense in the underlying case
about access to documents in the possession of the DRBA.
Moreover, even if The Press' intervention motion were itself a new
civil complaint against the DRBA, which it is not, the subject matter
jurisdiction is unpleaded and unclear. Federal courts are courts of
limited jurisdiction that may only hear a case if the constitution or a
federal statute provides the court with jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Title 28 of
the United States Code contains the statutory bases of subject matter
jurisdiction. The three types that are most often utilized to provide
federal court review are: (1) federal question jurisdiction pursuant to
28 U.S.C. § 1331, (2) diversity jurisdiction pursuant to
28 U.S.C. § 1332, and (3) ancillary, or supplemental, jurisdiction
pursuant to 28 U.S.C. § 1367.
Federal question jurisdiction allows the court to have original
jurisdiction over any civil action that arises under the constitution, a
federal law, or a federal treaty. 28 U.S.C. § 1331. Diversity
jurisdiction provides the court with original jurisdiction over any civil
action where the amount in controversy exceeds $75,000 and is between
citizens of different states, between citizens of a state and citizens of
a foreign state, or between a foreign state and citizens of a state.
28 U.S.C. § 1332. Ancillary jurisdiction provides the court with
jurisdiction over matters that have no other statutory basis of
jurisdiction, but are so related to a claim in an action that is already
properly before the court that (1) the claims are, in varying respects and
degrees, factually interdependent, or (2) the additional claim must be
heard so the court can function successfully with authority to manage its
proceedings, vindicate its authority, and effectuate its decrees.
Kokkonen, 511 U.S. at 379-80 (citations omitted).
Here, The Press filed a motion to intervene pursuant to Fed.R. Civ.
P. 24(b), a motion that does not require a statement of this Court's
jurisdiction. However, this Court must have a separate and independent
ground of subject matter jurisdiction over every claim that it hears. The
papers in this matter are simply not clear as to whether there is subject
matter jurisdiction over the Press' claims.
The motion to intervene is silent as to jurisdiction. The subsequent
papers do not raise jurisdiction as an issue or deal with it in any
manner. At oral argument on September 20, 2002, The Press indicated that
jurisdiction could be found in three ways: (1) because the Freedom of
Information regulations were promulgated by the DRBA which is established
pursuant to a federal compact, questions regarding the regulations should
be federal questions; (2) because the DRBA is an agency that spans New
Jersey and Delaware, The Press is diverse from the Delaware portion of
the agency; and (3) because the issue regards access rights of the
press, it involves the First Amendment, and The Press would claim that
DRBA's withholding of the documents amounts to state action abridging
This Court finds that the proper forum to debate these issues of
jurisdiction is by filing a new civil action that indicates its basis of
jurisdiction. Jurisdiction may turn out to be proper in federal court or
in state court, but this motion, completed without any briefing,
informed argument on the subject, should not decide such an issue.
It does seem clear that any claim between a state press and a state
agency that relates to the state's Right to Know Act or to the agency's
regulations is a state matter that does not arise under federal law. It
also seems clear that the parties to any action between The Press and the
DRBA are not diverse because they are both citizens of New Jersey.
Ancillary jurisdiction over the claim does not apply here because the
right of access to a settlement agreement is completely distinct,
independent, and collateral to the underlying workplace discrimination
claims in the underlying action. The question of jurisdiction, however,
is not as clear as it appears at first blush because of the arguments
made about jurisdiction due to the agency's creation as a federal
compact, the agency's dual-state status, and the First Amendment.
Were the claim based on the First Amendment, federal question
jurisdiction likely would be proper. However, here, the parties never
even wrote the words "First Amendment" in their moving papers. The
parties also did not present any argument as to how the DRBA's status as a
federal compact agency, created under the Constitution's Compact Clause,
Art. I, § 10, cl. 3, provides this Court with a jurisdictional
basis. The Press cited just four cases in its briefs, relying mainly on
Pansy v. Stroudsburg, 23 F.3d 772 (3d Cir. 1994), and Leucadia v. Applied
Extrusion Techs., Inc., 998 F.2d 157 (3d Cir. 1993), two cases that do
not include First Amendment analysis. See Pansy, 23 F.3d at 792 n. 31;
Leucadia, 998 F.2d at 161. The Press also stated its reliance on
Cippolone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986), a case
that considers the validity of a protective order under the First
Amendment though none exists here, (Press 9/13/02 Br. at 2), and on
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984), a case
decided under both the common law right of access to judicial documents
and the First Amendment, (Press 8/7/02 Br. at 4.). As a result, this
Court cannot assume from the caselaw cited that The Press was asserting
First Amendment issues against the DRBA, nor that the bi-state nature of
the DRBA has jurisdictional significance. If it wishes to assert rights
under the First Amendment, it will have the opportunity to do so
explicitly in an appropriate forum.
As a result, this Court, in the context of the intervention motion
unaided by a complaint in intervention, will not decide The Press' claim
of access to the final settlement agreement in the records of the DRBA on
First Amendment or state law grounds. Instead, this Court will deny the
motion to intervene in part as it pertains to disclosure of the actual
settlement agreement in the DRBA's records without prejudice to The
Press' seeking access to the agreement by filing a complaint against DRBA
that asserts proper jurisdiction and a cognizable cause of action in
either this Court or a state court.
For the foregoing reasons, this Court grants The Press' motion to
intervene in part as it pertains to the settlement agreement rough draft
and the June 12, 2002 transcript*fn6 and denies it in part, without
prejudice, as it pertains to the final settlement agreement in the records
of DRBA. The appropriate Order is attached.
For the reasons expressed in the Opinion filed herewith,
ORDERED that The Press of Atlantic City's application to intervene be,
and hereby is, GRANTED IN PART as it pertains to this Court's judicial
records, namely, the rough draft settlement agreement and the transcript
of the June 12, 2002 court proceeding;
IT IS FURTHER ORDERED that the official Court Reporter shall prepare a
transcript of the settlement hearing of June 12, 2002 and furnish same
under seal to counsel for the DRBA, Robert Partlow, Esq., who shall have
seven (7) calendar days from receipt to file any application with the
Clerk of Court for a stay of this Order, and failing same, the Court
shall provide a copy of the said transcript and of the rough-draft
memorandum of settlement of June 12, 2002, to counsel for The Press of
Atlantic City, Nelson C. Johnson, Esquire, and the transcript may be
unsealed in the records of the Court; and
IT IS FURTHER ORDERED that The Press of Atlantic City's application to
intervene be, and hereby is, DENIED IN PART as it pertains to disclosure
by the DRBA of the final settlement agreement WITHOUT PREJUDICE to filing
a civil action in a court of proper jurisdiction.