Appeals court hears paper’s plea for access to settlement talks

Wednesday, September 23, 1998

A New York newspaper seeking access to secret settlement talks between General Electric and the town of Moreau made its case recently before a federal appeals court.

Moreau, a town north of Albany, sued GE in 1988, alleging that the company illegally disposed of more than 450 tons of industrial waste from 1958 to 1968, contaminating the town's water supply. In 1994 a court sealed all documents in the settlement talks.

An attorney representing The (Glen Falls) Post-Star contends that the media have a right to attend closed settlement conferences and access sealed documents in the environmental lawsuit.

Thomas F. Gleason argued the newspaper's case last week before a three-judge panel of the 2nd U.S. Circuit Court of Appeals.

“Such First Amendment and other interests clearly will be frustrated if the press and public are presented with settlement information only after it is fully negotiated in a manner that leaves little or no room for further discussion or negotiation,” Gleason said.

“If the press and the public are effectively deprived of an opportunity to comment until there is a 'take-it-or-leave-it' deal, the public's First Amendment rights to petition elected representatives will be irreparably compromised.”

Attorneys representing GE and Moreau agree that the case is of public interest, but claim that the paper has no First Amendment right to access documents concerning their settlement discussions.

In September 1997, U.S. District Judge Lawrence E. Kahn ruled against the Post-Star, saying that opening the settlement process to the media “would delay if not altogether prevent a negotiated settlement of this action.”

“In a perfect world, the public would be kept abreast of all developments in the settlement discussions of lawsuits of public interest,” Kahn wrote. “In our world, such disclosure would … result in no settlement discussions and no settlements.”

Now, one year later, the matter is before the appeals court panel, which heard oral arguments on Sept. 17.

“We still don't know why they say this is so sensitive other than their argument that settlement discussions are generally sensitive and won't occur if you make that information public,” Gleason said.

Gleason said: “Nobody disputes that this is of public interest, but what they're saying is that there is no First Amendment right in the discovery process.”

Lewis B. Oliver Jr., an Albany-based attorney representing the town of Moreau, was not available for comment.

Calls placed to Sandra Sue McQuay, a Boston-based attorney representing GE in the case, have not been returned.

In terms of public interest, some freedom-of-information battles are more critical than others, said Steve Bennett, the Post-Star's managing editor.

“Not every one of these cases do we routinely go after because it gets to be costly,” Bennett said. “But when we have cases where the freedom-of-information law is violated we can't let [public officials] get away with that. It's a basic principle.

“In this case, it's more critical for the people of Moreau because it's gone on for 10 or more years,” said Bennett. “We want to establish that these things should be public for very practical and pointed reasons. So if there's some kind of settlement that may or may not serve the public, we want to know what that was.

A decision in Post-Star v. the Town of Moreau is pending.