Thursday, July 14, 2016

Lawyer to blogger: "Immediately cease and desist in your publication" of my client's confidential settlement agreement with a public agency.

On July 12, 2016, I published "Sparta school board confidentially paid $50,000 to settle former custodian's wrongful termination lawsuit."  I distributed a link to the article to area media (which resulted in Eric Obernauer of the New Jersey Herald publishing "Sparta school board settles suit with former custodian" on July 14, 2016) as well as to the lawsuit plaintiff's attorney.
Today, I received the following e-mail from the attorney who represented the former school custodian in the wrongful termination lawsuit:
Mr. Paff:

You have published what you know to be a confidential document without the authorization of the parties. I do not know how you obtained the agreement. You must immediately cease and desist in your publication of the agreement.

Very truly yours,

Mark J. Brancato
MCHUGH & BRANCATO ATTORNEYS LLP
104 Elcock Avenue
Boonton, NJ 07005
Even though I have published over four hundred articles regarding settlements--many of them marked "confidential"--I have never received a "cease and desist" letter (and its implied threat of a civil action against me if I refuse) from anyone.

It has always been my understanding that the "confidentiality agreements" placed in settlement agreements bind only the parties to that agreement, not to media or members of the public who obtain those "confidential" settlement agreements through Open Public Records Act (OPRA) requests.  Indeed, the confidentiality clause in Acevedo's settlement agreement, set forth in full below, expressly states that it only applies to "Releasor" (i.e. Acevedo).
CONFIDENTIALITY. The Parties agree that the terms and conditions of this settlement and the claims upon which it was based shall remain confidential to the extent permitted by law. Releasor agrees that he will not publish, in any manner, or attempt to publish the terms of the settlement. The Parties agree that any request for information concerning the terms and conditions of this settlement and the claims upon which it is based will be governed by the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. Releasor agrees not to discuss this case or settlement with the media, or third parties, other than immediate and trusted family members, medical providers or accountants and Releasor agrees to instruct her family members, accountants and attorneys of this confidentiality requirement.
Beyond the fact that I am not bound by the "confidentiality" provision within the agreement, nothing in my article could be construed to defame Acevedo (or anyone else), cast him a false light or violate his privacy.  And, even if I republished some false statement contained the lawsuit, such republication would almost certainly be privileged under the fair report or fair comment privileges.  In sum, I find no tenable legal basis for Mr. Brancato's demand.

Finally, as a matter of public policy, plaintiffs who recover money from public agencies cannot be allowed to keep the fact that those payments were made or their amounts from the taxpayers who funded them. If it were otherwise, taxpayers would be unable to judge whether elected officials' settlement decisions were reasonable or foolish or possibly corrupt.

Mr. Brancato's "cease and desist" demand is offensive and anathema to those who value governmental transparency.  Perhaps Mr. Brancato should "cease and desist" from attempting to suppress reports about public affairs.

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