Settlement Negotiations and Public Disclosure Laws

, The Legal Intelligencer

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When negotiating a private settlement agreement, practitioners typically consider such negotiations to be confidential and privileged, not to be disclosed by the parties outside of the confines of the settlement discussions. In fact, most private mediation and settlement agreements contain specific confidentiality provisions, with each party expressly agreeing that the terms of the settlement are to be kept strictly confidential and not disclosed to any third party unless required by law. But, when settlement negotiations take place with a governmental agency, maintaining confidentiality both during and after settlement can be more problematic, as the content of the negotiations and documents exchanged may be subject to disclosure under the federal Freedom of Information Act (FOIA) and state "sunshine" laws, including Pennsylvania's Right-to-Know Law and New Jersey's Open Public Records Act (OPRA).

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