Savannah College of Art & Design, Inc. v. School of Visual Arts, Inc. , 270 Ga. 791 ( 1999 )

Hunstein, Justice.

This appeal concerns public access to court records in a civil case. The superior court ordered that confidential settlement documents filed with Savannah College of Art & Design’s (SCAD) discovery motion should be open for public inspection because SCAD failed to meet its burden in limiting access. Because we find the trial court abused, its discretion in concluding that SCAD’s privacy interest in the settlement documents did not clearly outweigh the public interest in access to court records, we reverse.

In 1993, SCAD sued the School of Visual Arts and nine individuals for conspiracy. In 1996 the schools reached a settlement agreement. One condition of the agreement bound the parties to maintain complete confidentiality about the litigation and the terms of the settlement. The trial court entered an order on February 5, 1996 approving the agreement and expressly ordering the parties to keep all settlement documents confidential. The agreement was not filed with the court, and therefore, there was no request to seal the confidential agreement as a court record.

Four days later, the Visual Arts’ president announced to the school’s faculty, staff, and students that the school would leave Savannah by June 1999. A news article the following day described the decision to close the school as a term of the agreement settling the lawsuit between SCAD and Visual Arts. Two subsequent articles quote “sources close to Visual Arts” that ‘Visual Arts agreed to leave town in 1999 and would accept no new students at its Savannah campus as part of its settlement” with SCAD.

In September 1996, Visual Arts filed an arbitration action to enforce the settlement agreement; SCAD filed a counterclaim alleging that Visual Arts had breached the agreement by disclosing its terms to the media.¹ In September 1996, the parties instituted the present civil action for the purpose of enabling discovery in aid of arbitration. Over the next sixteen months, as part of the arbitration proceeding, SCAD deposed various individuals associated with Visual Arts seeking to determine if they were the source mentioned in the newspaper articles. Each person denied being the source “close to SVA” or knowing the source. Both schools then issued subpoenas to the two Savannah Morning News reporters who wrote the articles linking the closing of Visual Arts to the settlement agreement. At the arbitration hearing, SCAD questioned the reporters about their sources. Citing their qualified privilege under the Georgia Shield Law, see OCGA § 24-9-30, the reporters declined to answer. The arbitrator found that SCAD had met the requirements for the statutory exception to the privilege and overruled the newspaper’s objection, but both reporters continued to refuse to answer.

SCAD thereafter filed a motion in superior court to compel the reporters to reveal their sources. In the motion, SCAD quoted four paragraphs of its settlement letter with Visual Arts and attached as exhibits the full text of the letter, the mutual release and indemnity agreement, and excerpts from the deposition testimony of Visual Arts’ staff and students. In the motion served on the newspaper, however, SCAD redacted any reference to the text of the settlement letter and the deposition testimony and omitted all of the exhibits. On the first page of both copies of the motion, SCAD typed the words “[FILED UNDER SEAL].” Because there was no court order limiting access, the documents were maintained by the trial judge’s secretary pursuant to an internal operating procedure until there could be a hearing concerning their status. On February 26, 1998, the trial court issued an order directing the clerk to file the motion to compel and confidential settlement documents under seal and to limit access to these documents.

The newspaper filed a Uniform Superior Court Rule 21.5 motion to unseal the documents. Following a hearing, the trial court concluded that SCAD failed to meet its burden as the party seeking to limit access to court records. SCAD filed an interlocutory application under Uniform Superior Court Rule 21.4 and OCGA § 5-6-34 (b), which Visual Arts supported. SCAD then filed this direct appeal and Visual Arts filed an amicus brief supporting reversal of the trial court’s order.

Uniform Superior Court Rule 21 provides “[a] 11 court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” Rule 21.2 authorizes superior courts to limit access to court records if the court finds that “the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.” Although the rule creates a presumption that all court records are to be open, it also provides for a limitation on that right when the privacy of a party clearly outweighs the public right to know. In interpreting the provisions of the rule, this Court in Atlanta Journal &c. v. Long, 258 Ga. 410, 413 (369 SE2d 755) (1988) reversed the trial court’s order sealing certain records where the parties sought to shield public access to virtually all of the pre-judgment records.² In Long we acknowledged that the aim of the Rule 21 presumption is to ensure that the public will continue to enjoy its traditional right to access to judicial records. We also acknowledged that in cases of clear necessity, identified as instances where privacy rights are in jeopardy, the right of public access should yield.

We find in this case that the presumption in favor of public accessibility to court records is clearly outweighed by SCAD’s privacy interest. In contrast to Long, the records SCAD sought to protect were minimal and consisted of only twenty-two pages of private settlement documents. SCAD did not otherwise seek to limit public access to the remaining voluminous files in the court records regarding the parties’ litigation.³ Further, these specific documents had previously been acknowledged as confidential by the trial court in a February 1996 order approving the settlement; under the circumstances of this case, this factor was entitled to be accorded great weight under Rule 21.2.

Contrary to the finding of the trial court, we hold the private nature of the settlement agreement was not lost once the document was filed in the trial court. The confidential settlement agreement was attached as an exhibit to the motion to compel as part of an effort to enforce a confidentiality provision. To hold that the private nature of a settlement agreement is lost once the document is filed in the trial court places litigants in the unusual dilemma of having to waive an agreement’s confidentiality in order to enforce it. We believe this privacy conundrum is best resolved in favor of a limited access order pursuant to Rule 21.2.

Because of SCAD’s strong privacy interest in the confidential documents, we conclude that SCAD met its burden of showing that access by the public to the agreement and related documents should be limited. We accordingly hold that the trial court abused its discretion in refusing to enter such an order.

Judgment reversed.

All the Justices concur, except Fletcher, P. J., Sears and Hines, JJ, who dissent.

1 As part of the 1996 settlement agreement, the parties agreed that arbitration would be the sole remedy regarding any dispute arising out of the settlement agreement.

2 These documents included the complaint, answers, pre-trial order, discovery and motions for adjudication on the merits and briefs.

3 The trial court noted in its March 9,1998 order that the earlier litigation was the largest lawsuit litigated in the circuit and that the pleadings, motions and discovery filed with the clerk of court filled over 130 large cartons, all of which remained available to the public.