PERHAPS THE MOST significant thing about the Supreme Court's new rule limiting secret settlements of lawsuits is not the rule itself but the public policy statement the court used to introduce it: "Article I, Section 9, of the South Carolina Constitution provides that all courts of this state shall be public and this Rule is intended to ensure that that Constitutional provision is fulfilled."

Beyond that, the rule flatly and unambiguously prohibits judges from sealing documents that involve governmental entities. It prohibits judges from approving any settlements that are contingent upon a judge agreeing to seal documents. And it sets a high standard that parties must meet in order for a judge ever to seal documents.

The Legislature should approve the rule.

But the discussion of openness should not end there. The rule will not guarantee the public access to all documents that should be open, for two reasons.

First, it does not ban court-approved secrecy. Rather, it reiterates the court's commitment to openness and sets out much clearer guidelines for those rare cases when documents should be sealed. This should greatly reduce parties' ability to use the power and resources of our courts to enforce their secrecy.

Only time will tell whether the rule does, in fact, have that effect. The Supreme Court should watch this situation closely and be prepared to write stricter rules if necessary. The court also should consider whether it needs a rule to specifically restrict or prohibit the confidentiality agreements that gag parties from discussing even suits whose settlements are public record.

Second, and perhaps most significantly, the rule's scope is limited because it does not apply to agreements that parties do not ask courts to approve. That is as it should be when it comes to agreements between private parties. It is not as it should be when it comes to agreements involving government.

Unfortunately, it appears that these "private contracts" between government and people who file suit -- or even simply threaten to file suit -- are commonplace. How commonplace is impossible to tell. The State has been trying for some time to get local governments to provide information on how much public money they spend to settle lawsuits and threatened lawsuits. In some cases, they have refused to do that (much less to discuss the facts behind the cases), citing the secrecy agreements in these private contracts.

There is nothing the courts can do to stop that. (Although we believe the courts should refuse to provide any relief if a governmental entity violates its secrecy agreement and is sued for breach of contract; to do otherwise would be to negate the ban on court-enforced secret settlements involving government.)

But there is much that the Legislature can, and should, do about this situation. The Legislature should take the next logical step and prohibit even these private contracts involving government. That should include not only nondisclosure agreements but also gag orders. Governmental agencies should not be allowed to enter into agreements that prohibit them from telling the public what they have done and why they have done it. Government is not the private business of the people who work for government. Everything it does is done on behalf of the public, and is therefore the public's business. That should be obvious; since it is not, our laws should make it clear to everyone involved.