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Case 6:16-cv-01376-TJM-TWD Document 37-3 Filed 03/06/18 Page 1 of 23

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF NEW YORK
)
DAVID PASIAK, )
Plaintiff, )
− against – )
)
ONONDAGA COMMUNITY COLLEGE, )
KATHLEEN CRABILL and DAVID MURPHY, )
)
Defendants. )
)
)
IN RE ADVANCE MEDIA NEW YORK, ) Case No. 6:16-CV-01376-TJM-TWD
Proposed Intervenor. )
)

MEMORANDUM OF LAW IN SUPPORT OF THE POST-STANDARD’S APPEAL


PURSUANT TO RULES 72(A) AND/OR 72(B) OF THE FEDERAL RULES OF
CIVIL PROCEDURE AND LOCAL RULE 72.1 FROM MAGISTRATE JUDGE’S
RULING DENYING ITS MOTION TO INTERVENE FOR THE LIMITED
PURPOSE OF MODIFYING CONFIDENTIALITY ORDER

GREENBERG TRAURIG, LLP


Michael J. Grygiel
William A. Hurst
54 State Street, 6th Floor
Albany, New York 12207

Attorneys for Proposed Intervenor


Advance Media New York
Case 6:16-cv-01376-TJM-TWD Document 37-3 Filed 03/06/18 Page 2 of 23

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................3

A. Introduction and Background. .................................................................................3

B. OCC Thwarted The Post-Standard’s Multiple Attempts to Obtain Public


Disclosure of the Settlement Agreement Under New York’s Freedom of
Information Law. .....................................................................................................4

(1) The Newspaper’s First FOIL Request. ........................................................4

(2) The Parties’ Submit, Judge McAvoy Rejects, and Judge Dancks
Eventually Executes the Confidentiality Stipulation and Order. .................5

(3) The Newspaper’s Second FOIL Request: OCC Relies on the


Confidentiality Stipulation and Order to Deny Public Access to
the Settlement Agreement. ...........................................................................6

C. Magistrate Judge Dancks Holds that The Post-Standard Lacks Standing


to Seek Modification of the Confidentiality Stipulation and Order. ........................7

ARGUMENT ...................................................................................................................................7

I. THE MAGISTRATE JUDGE ERRED IN HOLDING THAT THE POST-


STANDARD DOES NOT HAVE STANDING FOR THE PURPOSE OF
OPPOSING THE CONFIDENTIALITY ORDER ..............................................................7

A. The Post-Standard Should Be Permitted to Intervene. ............................................8

II. OCC’S DISCLOSURE OBLIGATIONS UNDER FOIL CANNOT BE


ABROGATED BY OR SUBORDINATED TO THE TERMS OF A
PRIVATE CONFIDENTIALITY AGREEMENT ............................................................10

A. The Parties’ Confidentiality Stipulation Cannot Withstand the Careful


and Particularized Review Mandated By the Second Circuit. ...............................10

B. There Is No Compelling Need for Maintaining Confidentiality Over the


Final Settlement Agreement. .................................................................................13

C. The Glens Falls Newspapers Decision Is Inapposite. ...........................................17

CONCLUSION ..............................................................................................................................19

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TABLE OF AUTHORITIES

Federal Cases Page(s)

Beckman Indus., Inc. v. Int’l Ins. Co.,


966 F.2d 470 (9th Cir.), cert. denied, 113 S.Ct. (1992) ...........................................................13

City of Hartford v. Chase,


942 F.2d 130 (2d Cir. 1991).....................................................................................8, 10, 11, 13

Daines v. Harrison,
838 F. Supp. 1406 (D. Col. 1993) ..................................................................................7, 17, 19

EEOC v. Nat’l Children’s Ctr., Inc.,


146 F.3d 1042 (D.C. Cir. 1998) .................................................................................................9

Globe Newspaper Co. v. Superior Court,


457 U.S. 596 (1982) ...................................................................................................................8

In re Herald Co.,
734 F.2d 93 (2d Cir. 1984).........................................................................................................8

Katzman v. Victoria’s Secret Catalogue,


923 F. Supp. 580 (S.D.N.Y. 1996) ............................................................................................8

Lugosch v. Pyramid Co. of Onondaga,


435 F.3d 110 (2d Cir. 2006)...................................................................................................8, 9

In re NASDAQ Mkt.-Makers Antitrust Litig.,


164 F.R.D. 346 (S.D.N.Y. 1996) ...............................................................................................9

Nebraska Press Ass’n v. Stuart,


427 U .S. 539 (1976) ............................................................................................................7 n.5

Palmieri v. State of New York,


779 F.2d 861 (2d Cir. 1985).....................................................................................................11

Pansy v. Borough of Stroudsburg,


23 F.3d 772 (3d Cir. 1994)............................................................................................... passim

Schiller v. City of N.Y.,


No. 04 Civ. 7921 (KMK)(JC),
2006 WL 2788256 (S.D.N.Y. Sept. 27, 2006).......................................................................8, 9

United States v. Erie County,


No. 09-CV-849S, 2013 WL 4679070 (W.D.N.Y. Aug. 30, 2013),
rev’d on other grounds, 763 F.3d 235 (2d Cir. 2014)..........................................................9, 18

ii
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United States v. Glens Falls Newspapers, Inc.,


160 F.3d 853 (2d Cir. 1998)...............................................................................................17, 18

U.S. v. Salameh,
992 F.2d 445 (2d Cir. 1993).................................................................................................7 n.5

Vassiliades v. Israely,
714 F. Supp. 604 (D. Conn. 1989) .............................................................................................7

State Cases

Matter of LaRocca v. Bd. of Educ. of Jericho Union Free Sch. Dist.,


220 A.D.2d 424 (2d Dep’t 1995) .............................................................................................12

S-P Drug Co. v. Smith,


96 Misc.2d 305 (N.Y. Co. Sup. Ct. 1978) ...............................................................................12

Vill. of Brockport v. Calandra,


191 Misc.2d 718 (Supr. Ct., Monroe Cnty. 2002),
aff’d, 305 A.D.2d 1030 (4th Dep’t 2003) ................................................................................12

Washington Post Co. v. New York State Ins. Dep’t,


61 N.Y.2d 557 (1984) ..............................................................................................................12

Statutes

N.Y. Public Officers Law §§ 84 et seq. ................................................................................. passim

Other Authorities

Fed. R. Civ. P. 24 .........................................................................................................................8, 9

Fed. R. Civ. P. 72(a) ........................................................................................................................1

Fed. R. Civ. P. 72(b) ........................................................................................................................1

N.D.N.Y. Local Rule 72.1 ...............................................................................................................1

iii
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PRELIMINARY STATEMENT

Proposed Intervenor Advance Media New York, publisher of The Post-Standard and

Syracuse.com, respectfully submits this memorandum of law in support of its appeal pursuant to

Rules 72(a) and/or 72(b) of the Federal Rules of Civil Procedure, and Local Rule 72.1(b), from

the docketed text order entered on February 20, 2018, which denied for “lack of standing”

The Post-Standard’s motion to intervene for the limited purpose of modifying the December 11,

2017, Confidentiality Stipulation and Order agreed to by the parties to the extent it prohibits

disclosure of their final settlement agreement in the underlying litigation.

Procedurally, as a threshold matter, The Post-Standard has standing to contest and a right

to be heard in opposition to the confidentiality that has been imposed over the parties’ settlement

agreement in this case. Federal courts have repeatedly held that notice and an opportunity for

interested parties to object are required in this context. Although the parties may have their own

reasons for seeking to conceal their settlement agreement from the press and public, The Post-

Standard is in a position to present arguments in favor of modifying the Confidentiality Order

untinged by their partisan interests.

Substantively, there is no compelling need for maintaining wholesale secrecy over the

parties’ stipulated settlement agreement. The Complaint’s core allegations present controversial

and newsworthy charges of discrimination based on race − i.e., that Onondaga Community

College (“OCC”) mandated a strict thirty percent (30%) racial quota with respect to the

recruitment and selection of its men’s basketball team for the 2015-16 season in violation of both

federal law and its own policies. In addition, and as set forth more fully below, it is axiomatic

that settlement agreements entered into by government entities are subject to disclosure under

New York’s Freedom of Information Law (“FOIL”), Public Officers Law, Article 6, §§ 84 et

1
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seq. OCC would thus have this Court believe that government entities may refuse to provide the

public with government records whenever those records are subject to confidentiality in a prior

litigation. Absent more, however, the fact that the parties stipulated to confidentiality of the

settlement agreement at issue here is of little moment, as longstanding precedent makes clear.

This is nothing more than a thinly veiled attempt to evade FOIL. It is unfounded and should be

rejected. The Court should lift the confidentiality over the settlement agreement for this reason

alone.

The underlying litigation clearly affects a substantial range of public interests and

concerns. This Court should avoid being lured by the convenient after-the-fact claim that

confidentiality was “integral” to achieving settlement when the record suggests that the real

reason the Defendants seek to maintain secrecy over the settlement agreement is to keep the

public in the dark about the amount of public funds they spent − information otherwise and

routinely available to this State’s citizens under FOIL − to avoid a trial on the serious racial

discrimination charges leveled against them.

In the final analysis, Pasiak v. Onondaga Community College, et al., involves a public

higher educational institution and public officials accused of violating federal anti-discrimination

laws, the payment of taxpayer dollars to settle the case, and a settlement agreement that, as a

matter of black letter law, is subject to disclosure under New York’s FOIL. It directly implicates

the public interest, and should be public to the maximum extent authorized by law. The

Confidentiality Order should be modified to prevent the stipulated settlement agreement from

continuing to be withheld from The Post-Standard and the public it serves.

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STATEMENT OF FACTS

A. Introduction and Background.

Proposed Intervenor Advance Media New York publishes The Post-Standard (sometimes

referred to herein as the “Newspaper”), a daily and Sunday newspaper distributed in the City of

Syracuse, New York, and throughout the Onondaga County vicinity, and operates the

Newspaper’s corresponding website www.Syracuse.com. (McMahon Dec. ¶ 1). 1 The

journalistic mission of The Post-Standard and Syracuse.com is to publish to readers, in

conformity with fair journalistic standards, the newsworthy information that they gather. (Id.

¶ 9) Consistent with this goal, the Newspaper often covers court proceedings and other public

affairs that have independent news value or have otherwise become a reasonable subject of

public concern. (Id.)

The civil rights lawsuit commenced by former OCC head men’s basketball coach David

Pasiak has generated a significant level of public attention and concern not only in the Syracuse

community but throughout upstate New York. (McMahon Dec. ¶ 9) Filed in November 2016,

the Pasiak Complaint alleges that the Defendants unlawfully terminated Plaintiff from the men’s

basketball coaching position at OCC based on his refusal to implement an alleged race-based

“quota mandate,” i.e., that the 2015-2016 men’s basketball team “was to have thirty percent

(30%) minority students.” (Compl. ¶ 24) Plaintiff sought an award of money damages and lost

wages from this publicly funded community college and its officers, “including, but not limited

to, front and back pay, emotional distress, pain and suffering, compensatory and punitive

damages and attorneys’ fees.” 2 (Compl. ¶ 70[a])

1
The accompanying Affidavit of Julie McMahon, The Post-Standard’s public affairs reporter assigned to cover
the Pasiak lawsuit, is referred to herein by paragraph as “(McMahon Dec. ¶ __).”
2
The Newspaper reported on the Pasiak Complaint in its November 18, 2016, print and online editions.
(McMahon Dec., ¶ 11[d])

3
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Defendant OCC is a community college within the State University of New York

(“SUNY”) system with its campus in Syracuse, New York, the center of The Post-Standard’s

readership market. Since late 2015, the Newspaper has published multiple news articles

reporting on Plaintiff’s controversial termination as OCC’s head men’s basketball coach and his

ensuing lawsuit against OCC and certain of its officers involving explosive charges of mandated

racial quotas. (McMahon Dec. Ex. F)

B. OCC Thwarted The Post-Standard’s Multiple Attempts to Obtain Public Disclosure


of the Settlement Agreement Under New York’s Freedom of Information Law.

(1) The Newspaper’s First FOIL Request.

During her newsgathering relative to the Pasiak lawsuit, Reporter McMahon learned that

the parties reached a comprehensive settlement of Plaintiff’s claims with the Court’s assistance

on September 28, 2017, (McMahon Dec. ¶ 4 and Ex. B), and that Senior U.S. District Judge

Thomas J. McAvoy entered an “Order of Dismissal By Reason of Settlement” the next day,

September 29, 2017. [Dkt. 23] (McMahon Dec. Ex. C) Reporter McMahon promptly filed a

Freedom of Information Law request with OCC’s designated Records Access Officer on

October 3, 2017, requesting public access to (1) the settlement agreement between OCC and

Pasiak, and any documents or correspondence related thereto; (2) check registers or other records

of payments OCC made to Pasiak in 2017; and (3) minutes and agendas from OCC Board of

Trustees meetings in which the lawsuit was discussed. (McMahon Dec. ¶ 12 and Ex. G)

On October 5, 2017 − while the Newspaper’s FOIL request was pending, but after the

Pasiak action had been settled and dismissed − OCC requested a telephone conference with the

Court “in furtherance of the parties’ mediation with you on September 28, 2017.” (McMahon

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Dec. ¶ 13 and Ex. H). 3 The next day, October 6, 2017, OCC denied the Newspaper’s October 3,

2017, FOIL request in part, stating “there are no existing records relating to a settlement between

[OCC] and [Pasiak], nor are there any board meeting minutes or agendas where the lawsuit was

discussed.” (McMahon Dec. ¶14 and Ex. I)

(2) The Parties’ Submit, Judge McAvoy Rejects, and Judge Dancks
Eventually Executes the Confidentiality Stipulation and Order.

More than sixty days later, on December 6, 2017, OCC submitted for the Court’s

execution a proposed Confidentiality Order that the parties signed on December 4, 2017. [Dkt.

29] (McMahon Dec. ¶ 6 and Ex. D). Notwithstanding this two month delay in its submission,

the Confidentiality Order states:

[B]ecause maintaining confidentiality of the settlement


discussions, documents prepared in aid of settlement, drafts of any
settlement related agreements between the parties and the
agreements themselves were integral to the resolution and
settlement of this action, good cause exists for the entry of this
Confidentiality Stipulation and Order.

(McMahon Dec. Ex. D) Later the same day, however, Senior Judge McAvoy “declin[ed] to

enter” the parties’ proposed Confidentiality Order. (Id. ¶ 7 and Ex. B, Text Notice, entered

December 6, 2017)

On December 11, 2017, Magistrate Judge Thérèse Wiley Dancks signed the same

Confidentiality Order that Senior Judge McAvoy had declined to enter on December 6, 2017.

[Compare Dkts. 29 and 30] (McMahon Dec. ¶ 8 and Ex. E) In pertinent part, the Confidentiality

Order entered on December 11, 2017, prohibits the parties from disclosing any information

“exchanged” or “provided to the Court in connection with the settlement negotiations,” as well

3
The parties to the Pasiak action participated in the Court’s Mandatory Mediation Program by appearing before a
third-party neutral on June 8, 2017. The “case did not settle” [Dkt. 18] and the docket shows “ADR
Completed” on that date. Upon information and belief, the proceedings conducted by Judge Dancks on
September 28, 2017, were therefore neither part of nor governed by the rules applicable to the Court’s
Mandatory Mediation Program.

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as prohibiting public disclosure of “any settlement related agreement, drafts thereof, or the terms

or any of the conditions of any settlement related agreement.” (Id.) The Confidentiality Order

also scripts the parties’ response to any inquiries, including from the Newspaper, about the

settlement: “In response to any inquiry about the settlement of Plaintiff’s claims against

Defendants, the Parties may state only that they reached a mutually satisfactory resolution of this

matter.” (Id.)

(3) The Newspaper’s Second FOIL Request: OCC Relies on the


Confidentiality Stipulation and Order to Deny Public Access to
the Settlement Agreement.

Upon learning that a settlement agreement had in fact been signed, the Newspaper

submitted a second FOIL request to OCC on January 4, 2018, again seeking public disclosure of

“[t]he settlement agreement between [OCC] and [Pasiak],” as well as “[a]ny documents or

correspondence related to the settlement” of the Pasiak litigation. (McMahon Dec. ¶ 15 and

Ex. J)

On January 9, 2018, OCC denied the Newspaper’s second FOIL request “based on the

fact that [OCC] is prohibited by Order of the United States District Court for the Northern

District of New York from disclosing any information exchanged by the parties to the Pasiak v.

[OCC, et al.] lawsuit or provided to the Court in connection with the settlement negotiations and

from disclosing any settlement related agreement, drafts thereof, or the terms or any of the

conditions of any settlement related agreement to any non-party.” 4 (McMahon Dec. ¶ 16 and

Ex. K)

4
The Newspaper submitted a third FOIL request, this time with the State University of New York directly, which
was also denied. (McMahon Dec. ¶¶ 17-18 and Exs. L, M).

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C. Magistrate Judge Dancks Holds that The Post-Standard Lacks Standing


to Seek Modification of the Confidentiality Stipulation and Order.

While awaiting OCC’s FOIL determination, Reporter McMahon submitted a letter

application to this Court on January 8, 2018, requesting that the Court lift the Confidentiality

Order, which OCC had cited as the sole ground for denying FOIL access to the settlement

agreement. [Dkt. 32] (McMahon Dec. ¶ 19 and Ex. N) In a Text Order entered on February 20,

2018 [Dkt. 36], Magistrate Judge Dancks ruled: “[i]nasmuch as Ms. McMahon, The Post-

Standard and Syracuse.com are all non-parties to the action, the Court denies their request to the

Court to ‘release and/or unseal the settlement agreement and terms of the settlement’ and for

‘a reversal of the confidentiality order which bars the parties from discussing or disclosing the

settlement agreement’ for lack of standing.” [Dkt. 36] (McMahon Dec. ¶ 20 and Ex. B)

ARGUMENT

I. THE MAGISTRATE JUDGE ERRED IN HOLDING THAT THE POST-


STANDARD DOES NOT HAVE STANDING FOR THE PURPOSE OF
OPPOSING THE CONFIDENTIALITY ORDER

Relevant case law clearly establishes that The Post-Standard has standing to contest the

Confidentiality Order, which has prevented it from reporting newsworthy information in the

controversial underlying litigation. 5 Daines v. Harrison, 838 F. Supp. 1406, 1407-08 (D. Col.

1993) (held, in litigation involving public officials as parties, newspaper had standing to

challenge sealing of settlement agreement presumptively accessible under Colorado Open

Records Act). As the Court of Appeals for the Second Circuit reasoned in a leading press access

case, “[s]ince by its nature the right of public access is shared broadly by those not parties to the

5
To the extent the Confidentiality Stipulation and Order precludes the parties from discussing the settlement, it
constitutes an impermissible gag order. An order that would “prohibit the utterance or publication of particular
information or commentary imposes a ‘prior restraint’ on speech,” U.S. v. Salameh, 992 F.2d 445, 446 (2d Cir.
1993) which is the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press
Ass’n v. Stuart, 427 U .S. 539, 559 (1976). The Post-Standard hereby reserves its right to challenge this portion
of the Confidentiality Stipulation and Order on First Amendment grounds.

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litigation, vindication of that right requires some meaningful opportunity for protest by persons

other than the initial litigants, some or all of whom may prefer closure.” In re Herald Co., 734

F.2d 93, 102 (2d Cir. 1984). Case law, policy considerations, and fundamental due process

rights to notice and an opportunity to be heard compel the conclusion that standing for this

purpose is appropriate and necessary. Simply put, “[i]mportant interests are best championed by

those most directly affected by their impairment.” Katzman v. Victoria’s Secret Catalogue, 923

F. Supp. 580, 583 (S.D.N.Y. 1996) (granting television network’s motion to intervene for

permission to broadcast oral argument in newsworthy case).

A. The Post-Standard Should Be Permitted to Intervene.

The denial of public access to the settlement agreement has had a substantial and

continuing effect upon the interests of The Post-Standard, other news media, and the public. In

similar contexts, courts have repeatedly held that members of the press and public have a right to

intervene in a judicial proceeding for the limited purpose of opposing closure orders, and “must

be given an opportunity to be heard.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

609 n.25 (1982) (quotation marks and citation omitted, emphasis supplied). The controlling

principle is well established: “[w]e have routinely found, as have other courts, that third parties

have standing to challenge . . . confidentiality orders in an effort to obtain access to information

or judicial proceedings.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994)

(footnote omitted); City of Hartford v. Chase, 942 F.2d 130, 134-37 (2d Cir. 1991) (allowing

intervening third parties to challenge confidentiality order over documents not part of court file);

see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 117-19 (2d Cir. 2006)

(recognizing the press’s right to oppose sealing of motion papers in civil litigation).

Federal courts routinely permit news organizations to intervene under Fed. R. Civ. P. 24

to challenge restrictions on the public’s right of access to civil courts and proceedings. Schiller

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v. City of N.Y., No. 04 Civ. 7921 (KMK)(JC), 2006 WL 2788256, at *2 (S.D.N.Y. Sept. 27,

2006) (noting that a newspaper “may well have an absolute right” under Rule 24(a) to intervene

for access and granting permissive intervention under Rule 24(b)); In re NASDAQ Mkt.-Makers

Antitrust Litig., 164 F.R.D. 346, 351 (S.D.N.Y. 1996) (holding that newspaper met the criteria of

Rule 24(a) for intervention as of right in multi-district class action suit). In fact, “every circuit

court that has considered the question has come to the conclusion that nonparties may

permissively intervene for the purpose of challenging confidentiality orders.” EEOC v. Nat’l

Children’s Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998); see also Lugosch, 435 F.3d at 117-

18, 126-27.

Some federal courts grant the press intervention as of right. See, e.g., In re NASDAQ

Mkt.-Makers Antitrust Litig., 164 F.R.D. at 351. Others, however, find that permissive

intervention is more appropriate. Pansy, 23 F.3d at 778 (“We agree with other courts that have

held that the procedural device of permissive intervention is appropriately used to enable a

litigant who was not an original party to an action to challenge protective orders entered in that

action.”) (collecting authorities). Here, even if this Court found that intervention was not as of

right, permissive intervention is still appropriate because The Post-Standard has a “direct interest

in collecting information about a matter of public interest” and none of the parties to this suit −

all of whom agreed to shroud the settlement agreement in secrecy − “adequately” represent the

press and public’s interest in the maximum extent of openness. Schiller, 2006 WL 2788256,

at *2-3. Intervention for this purpose is appropriate “even years after a case has been closed.”

United States v. Erie County, No. 09-CV-849S, 2013 WL 4679070, at *5 (W.D.N.Y. Aug. 30,

2013) (collecting cases), rev’d on other grounds, 763 F.3d 235 (2d Cir. 2014).

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As a surrogate for the public it serves, The Post-Standard is uniquely situated to present

to this Court arguments in favor of modifying the Confidentiality Order. It is clear, then, that

The Post-Standard should be permitted to intervene for the limited purpose of preventing the

public from continuing to be kept in the dark about the taxpayer-funded settlement in this matter.

Pansy, 23 F.3d at 778 (“By virtue of the fact that the Newspapers challenge the validity of the

Order of Confidentiality entered in the main action, they meet the requirement of Fed. R. Civ.

P. 24(b)(2) that their claim must have a ‘question of law or fact in common’ with the main

action.”) (footnote omitted).

II. OCC’S DISCLOSURE OBLIGATIONS UNDER FOIL CANNOT BE


ABROGATED BY OR SUBORDINATED TO THE TERMS OF A
PRIVATE CONFIDENTIALITY AGREEMENT

A. The Parties’ Confidentiality Stipulation Cannot Withstand the Careful


and Particularized Review Mandated By the Second Circuit.

The Second Circuit has emphasized the need for careful and particularized scrutiny by

reviewing courts when the parties to litigation stipulate to the confidentiality of a settlement

agreement:

We do not, of course, . . . in any way mean to give parties carte


blanche either to seal documents related to a settlement agreement
or to withhold documents they deem so “related.” Rather, the trial
court -- not the parties themselves -- should scrutinize every such
agreement involving the sealing of court papers and what, if any,
of them are to be sealed, and it is only after very careful,
particularized review by the court that a Confidentiality Order may
be executed.

City of Hartford v. Chase, 942 F.2d at 136. The exercise of such probing scrutiny is especially

warranted here given the nature of the civil rights violations alleged in the Complaint against

OCC and its officers, which necessarily affect the public interest. Id. at 138 (“[B]ecause they

often involve information not in the control of the court, and may, as in this case, implicate

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public concerns, confidentiality orders, when not subject to proper supervision, have a great

potential for abuse. For this reason, judges should review such agreements carefully and

skeptically before signing them.”) (Pratt, J., concurring) (emphasis supplied).

As a consequence of this exacting judicial oversight, “a district court should articulate on

the record” findings supporting an order of confidentiality. Pansy v. Borough of Stroudsburg, 23

F.3d at 789 (footnote omitted). No such findings have been made on the record here. Rather, the

Magistrate Judge apparently “So Ordered” the Confidentiality Stipulation − the same document

that this Court had refused to enter five (5) days earlier (McMahon Dec. ¶ 7 and Ex. B) − without

taking account of the overriding public interest in the underlying litigation. Id. at 786 (“the

district court made no findings for the record when it initially granted the Order of

Confidentiality, and apparently did not balance the competing public and privacy interests before

entering the Order”). Thus, the Confidentiality Order “represents little more than an imprimatur

reflexively placed on determinations that have been made by the parties,” to the detriment of an

informed public. City of Hartford, 942 F.2d at 137 (Pratt, J., concurring). By failing to consider,

let alone explain, why The Post-Standard’s interest in obtaining FOIL access to the settlement

agreement was outweighed by the need for confidentiality, the December 11, 2017, Order was

“improvidently granted ab initio.” Palmieri v. State of New York, 779 F.2d 861, 865 (2d Cir.

1985).

The claimed need for blanketing the settlement agreement in confidentiality is belied by the

timing of events reflected in this action’s docket sheet. The parties reached an agreement in

principle to settle the case on September 28, 2017. (McMahon Dec. ¶ 4 and Ex. B) Judge

McAvoy dismissed the case on September 29, 2017. (Id. ¶ 5 and Ex. C) Four days later, The Post-

Standard made a FOIL request for the finalized settlement agreement. Two days after that, OCC

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contacted the Court to request a telephone conference. (Id. ¶¶ 12-13 and Exs. G-H) The following

day, OCC denied The Post-Standard’s FOIL request. (Id. ¶ 14 and Ex. I) Finally, two months

after the settlement had already been agreed to and the case dismissed, the parties submitted their

confidentiality stipulation to the Court in December of 2017.

It is well established that settlement agreements entered into by governmental agencies

such as OCC are subject to disclosure under New York State’s FOIL:

Significantly, when public monies are expended, the public should


not be excluded from such information. A confidentiality clause
should not be allowed to trump the right of the public to access
information regarding public expenditure.

Vill. of Brockport v. Calandra, 191 Misc.2d 718, 725 (Supr. Ct., Monroe Cnty. 2002), aff’d, 305

A.D.2d 1030 (4th Dep’t 2003). See also Washington Post Co. v. New York State Ins. Dep’t, 61

N.Y.2d 557, 567 (1984) (stating that promises of confidentiality by a state agency do not affect

the status of documents as records subject to required disclosure under FOIL, nor do such

promises affect the applicability of any exemption under FOIL’s provisions); Matter of LaRocca

v. Bd. of Educ. of Jericho Union Free Sch. Dist., 220 A.D.2d 424, 427 (2d Dep’t 1995) (held,

settlement agreement denying public access to its terms “is unenforceable as against the public

interest” since “as a matter of public policy, the Board of Education cannot bargain away the

public’s right to access to public records”); S-P Drug Co. v. Smith, 96 Misc.2d 305, 311 (N.Y.

Co. Sup. Ct. 1978) (held, state agency’s disclosure obligations under FOIL cannot be preempted

by the terms of a contract with a private party, an arrangement which would negate the public

access and accountability contemplated by the statute).

Given this settled precedent, it stands to reason that OCC was aware that any final

settlement document memorializing the parties’ agreement would inevitably become a matter of

public record because of The Post-Standard’s FOIL request, in particular, and the abiding press

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and public interest in the case, in general. (McMahon Dec. ¶¶ 11-12 and Exs. F-G) On this

record, any claim that “a judicial assurance of confidentiality was a prerequisite to the parties’

decision to settle their dispute” (City of Hartford, 942 F.2d at 136) is at best implausible and at

worst manufactured post hoc to prevent disclosure of the settlement agreement and circumvent

OCC’s obligations under FOIL, thereby frustrating FOIL’s objective of maximizing access to

government records to promote “public accountability.” N.Y. Publ. Off. Law § 84. FOIL’s

purpose would be defeated if, through the simple expedient of stipulating as private that which is

required to be public, OCC remains the arbiter of whether the amount of taxpayer funds it

disbursed to settle Coach Pasiak’s lawsuit is accessible to the public.

The above chronology strongly indicates that the parties’ ostensible reliance on the

Confidentiality Order − which, again, did not come into existence until two months after the

parties had reached a settlement in the case − as “integral” to resolving their dispute does not

insulate it from modification. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 475 (9th Cir.)

(“The extent to which a party can rely on a protective order should depend on the extent to which

the order induced the party . . . to settle the case.”), cert. denied, 113 S.Ct. (1992). As a general

proposition, “[r]eliance will be less with a blanket order, because it is by nature overinclusive.”

Id. at 476. Accordingly, the “reliance interest of the parties in the confidentiality of the

Settlement Agreement must be considered weak in this case.” Pansy, 23 F.3d at 792.

B. There Is No Compelling Need for Maintaining Confidentiality


Over the Final Settlement Agreement.

Pansy v. Borough of Stroudsburg, supra, a case with closely analogous facts, is

instructive. Plaintiff brought a § 1983 action alleging that the Borough had violated his civil

rights based on his suspension as its Chief of Police. Id. at 776. The parties eventually entered

into a Settlement Agreement that was reviewed by, but never filed with, the district court, which

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issued an order rendering the settlement terms confidential. Id. A local newspaper submitted a

request to the Borough for disclosure of the Settlement Agreement under the state’s open records

law, and then moved to intervene in the settled civil rights action for the purpose of vacating the

court’s confidentiality order. “Their reason for doing so is that if the Newspapers are successful

in vacating the Order of Confidentiality, they will then be able to seek access to the Settlement

Agreement under the Pennsylvania Right to Know Act, without interference by the federal court

Order of Confidentiality.” Id. at 784 (citations omitted).

Pansy premised its analysis on the recognition that a confidentiality order granted at any

phase of litigation, “including settlement,” requires justification through a showing of good

cause. Id. at 786. “Good cause is established on a showing that disclosure will work a clearly

defined and serious injury to the party seeking closure. The injury must be shown with

specificity.” Id. (citation and internal quotations omitted). “Broad allegations of harm,

unsubstantiated by specific examples or articulated reasoning, do not support a good cause

showing.” Id. (citation and internal quotations omitted). Here, the Confidentiality Order merely

recites that “good cause exists” because keeping the parties’ final agreement secret was “integral

to the resolution and settlement” of the action − a self-serving pronouncement belied by the two-

month gap between their agreement to settle and the eventual execution of the Confidentiality

Order. This conclusory recitation was summarily rejected in Pansy as insufficient to justify the

invocation of confidentiality: “[d]istrict courts should not rely on the general interest in

encouraging settlement and should require a particularized showing of the need for

confidentiality in reaching a settlement.” Id. at 788.

For several reasons, there is no compelling need for maintaining confidentiality over the

settlement agreement challenged by The Post-Standard. The public interest factors stressed in

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Pansy weigh completely against secrecy. First, the settlement in question involves the resolution

of highly newsworthy race-based quota claims arising from OCC’s operation of its men’s

basketball team, as well as the expenditure of public funds to settle those claims. The

“settlement agreement [thus] involves issues or parties of a public nature, and involves matters of

public concern . . . .” Id. Accordingly, where the parties benefiting from the confidentiality

bestowed by the stipulated order include a public entity and its high-level officers, this “weigh[s]

against entering or maintaining an order of confidentiality.” Id.

Second, and as stated above, the defendants could not reasonably have relied on

confidentiality given the established FOIL precedent mandating the disclosure of settlement

agreements where a government agency is a party and the expenditure of public funds is

involved. The decision in Pansy recognized the “troublesome conflict between the governmental

entity’s interest as a litigant and its public disclosure obligations” in mandating that transparency

under state freedom of information laws must be factored into the determination to modify a

confidentiality order. Id. at 791. The court elaborated its rationale:

We acknowledge the important role that court-aided settlement


plays in our overburdened court system, and we realize that a
strong presumption against confidentiality orders when freedom of
information laws are implicated may interfere with the ability of
courts to successfully encourage the settlement of cases. However,
we believe that a strong presumption against entering or
maintaining confidentiality orders strikes the appropriate balance
by recognizing the enduring beliefs underlying freedom of
information laws: that an informed public is desirable, that access
to information prevents governmental abuse and helps secure
freedom, and that, ultimately, government must answer to its
citizens. Neither the interests of parties in settling cases, nor the
interests of the federal courts in cleaning their dockets, can be said
to outweigh the important values manifested by freedom of
information laws.

Id. at 791-92.

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Based on this reasoning, a “strong presumption” applies in this instance against

maintaining the Confidentiality Order, “whose scope would prevent disclosure” of information to

which New York State citizens are routinely granted access under FOIL. Id. at 791. The

purpose of governmental transparency animating FOIL “tilts the scales heavily against” the

Confidentiality Order, the effect of which is to “frustrate, if not render useless,” New York

State’s open records law. Id. The message in Pansy could hardly be clearer: “This case

involves a government body, a public official, and a settlement agreement which is likely

available under the Pennsylvania Right to Know Act. Given these facts, it would be unusual if

. . . the district court were to find that circumstances exist which justify the Order of

Confidentiality being maintained over the Settlement Agreement.” Id. at 792.

Third, the Complaint’s allegations that OCC had imposed a racial quota system over the

recruitment and selection of players for its men’s basketball team ignited an ongoing public

controversy that was extensively covered by The Post-Standard. (McMahon Dec. ¶ 11 and

Ex. F) The circumstances of the underlying lawsuit thus support the suspicion that what OCC is

really concerned about is not protection of the information it exchanged in candid settlement

negotiations, but to sweep under the rug information relevant to Plaintiff’s claims that OCC

“mandated [he] recruit students for the 2015-2016 Men’s Basketball team based solely upon

their race” and that Defendant Murphy told him the team “had to be comprised of thirty percent

(30%) minorities” for the coming season. (Compl. ¶¶ 50-51) Needless to say, OCC’s fear that

disclosure of this information might damage its institutional integrity and reputation in the court

of public opinion is insufficient to justify confidentiality:

The parties’ interest in maintaining the confidentiality of the


settlement could stem from a desire not to disclose their bad
behavior. Petitioners maintain that the magistrate’s order was
entered at the request of the parties in an effort to avoid

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embarrassment or harm to the reputation of the parties. This is


certainly not a compelling reason to grant a confidentiality order.

Daines v. Harrison, 838 F. Supp. at 1408.

The possibility of “adverse publicity” in and of itself does not


justify sealing. . . . Every lawsuit has the potential for creating
some adverse or otherwise unwanted publicity for the parties
involved. It is simply one of the costs attendant to the filing of an
action.

Vassiliades v. Israely, 714 F. Supp. 604, 606 (D. Conn. 1989).

C. The Glens Falls Newspapers Decision Is Inapposite.

United States v. Glens Falls Newspapers, Inc., 160 F.3d 853 (2d Cir. 1998), relied on in

OCC’s January 29, 2018, letter to the Court [Dkt. No. 34], is not to the contrary. In that case, the

court upheld a protective order rendering confidential “draft settlement agreements” and related

documentation exchanged between counsel for the parties in the course of settlement

negotiations. Id. at 854 (emphasis supplied). The opinion expressly distinguished the “draft

settlement documents” which had not been “ ‘presented to the court to invoke its powers or affect

its decisions’ ” from those “merged into a tentative final agreement for court action, thereby

becoming public.” Id. at 857 (quoting United States v. Amodeo, 71 F.3d 1044, 1050

(2d Cir.1995)). Importantly, the court noted that, distinct from finalized settlement agreements

entered into by government agencies, New York’s FOIL provisions “do not extend to settlement

discussions or draft documents prepared in aid of settlement” in narrowly concluding that “the

presumption of access to settlement negotiations, draft agreements, and conference statements is

negligible to nonexistent.” Id. at 857, 858.

The narrow holding in Glens Falls, restricted to “settlement documents in draft form” (id.

at 858), is irrelevant to The Post-Standard’s motion to modify the Confidentiality Order here to

the extent it shrouds in secrecy the finalized settlement agreement signed off on by OCC. In

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contrast to Glens Falls, the instant motion is not seeking to divulge any information provided to

the Court in connection with the settlement negotiations conducted on September 28, 2017; any

“discussions and documents exchanged before an agreement ha[d] been reached” by the parties

on that date (id. at 854); or drafts of any settlement related agreements. Id. at 856-58. In

language equally applicable here, the Second Circuit has reaffirmed the Glens Falls court’s

distinction between draft settlement documents and finalized settlement agreements,

emphasizing the attenuated reasons for keeping the latter confidential:

In attempting to keep the reports sealed despite their First


Amendment protection, the County posits a supervening need for
frank, and hence confidential, discussions among the parties. In
doing so, it analogizes this case to ones involving settlement
negotiations. But that argument ignores the crucial fact that, in the
case before us, a settlement has already been reached. As the
Department of Justice points outs, unlike the documents sought in
United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 854
(2d Cir. 1998) – which included draft settlement agreements and
attorney work product produced in preparation for settlement − the
compliance reports are not documents made in preparation for
settlement. In this case, settlement has long since been achieved.
And many of the privacy concerns that inhere in pre-settlement
negotiations simply do not apply. Thus, to mention just two, there
is here no issue of attorney-client confidentiality or of divulging
strategy.

United States v. Erie County, 763 F.3d at 243.

The same can certainly be said here, where lifting the secrecy enveloping the parties’ final

settlement agreement cannot expose their private bargaining positions, chill their settlement

negotiations, or frustrate the public policy of “encourag[ing] the settlement of cases through a

negotiated compromise.” Glens Falls, 160 F.3d at 856 (internal quotations and citation omitted).

Further, public access to the settlement agreement will not impede the “fair and efficient

resolution” of the underlying litigation, divulge legally privileged information, or contribute to “the

uncertainty, expense and delay inherent in a trial.” Id. at 856, 857 (footnote omitted). Indeed, the

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unexplained invocation of confidentiality under these circumstances seems no more compelling

than concealing the amount of public money paid by OCC to avoid facing trial on the serious

allegations that, by imposing a thirty percent (30%) racial quota on the school’s men’s basketball

team, it violated not only federal civil rights laws but its own policies prohibiting discrimination.

However, the expenditure of taxpayer dollars to settle the case independently supports openness:

In the instant case, the public has an interest in seeing that public
funds are utilized properly. This is an important concern, and
secrecy surrounding disbursement of such funds is contrary to
sound public policy.

Daines, 838 F. Supp. at 1408.

CONCLUSION

For all of the foregoing reasons, The Post-Standard respectfully requests an Order of this

Court: (1) reversing Magistrate Judge Dancks’s February 20, 2018, Order denying its motion to

intervene for lack of standing; (2) granting intervenor status for the limited purpose of modifying

the Confidentiality Order; and (3) modifying the Confidentiality Order to the extent it prohibits

disclosure of the final agreement memorializing the settlement entered into by the parties on

September 28, 2017.

DATED: March 6, 2018 GREENBERG TRAURIG, LLP

By: /s/ Michael J. Grygiel


Michael J. Grygiel
Bar Roll No. 507829
William A. Hurst
Bar Roll No. 510271
54 State Street, 6th Floor
Albany, New York 12207
Tel: (518) 689-1400
Fax: (518) 689-1499
grygielm@gtlaw.com
hurstw@gtlaw.com
Attorneys for Proposed Intervenor
Advance Media New York
ALB 2098527v2

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