Senator Leyva Introduces “Public Right to Know Act”

SB 1149 Will Protect Californians From Life-Threatening Dangers Hidden By Secret Settlements and Other Legal Maneuvers

Wednesday, February 16, 2022

SACRAMENTO – To ensure that Californians have the information needed to help keep themselves and their families safe, Senator Connie M. Leyva (D-Chino) today introduced legislation that would protect the public’s right to know the facts about dangerous public hazards that are discovered during litigation.

Jointly sponsored by Consumer Reports and Public Justice, SB 1149 specifically seeks to do the following:

  • Prohibit settlement agreements that restrict the disclosure of information about a defective product or environmental condition that poses a danger to public health or safety, and make any provision in an agreement void as against public policy, and thus unenforceable.
  • Create a presumption that any court order that conceals such information is prohibited unless the court finds that the public interest in disclosure is clearly outweighed by a specific and substantial need for secrecy.
  • Narrowly tailor its application to only information about a "danger to public health or safety" that is likely to cause "significant or substantial bodily injury or illness, or death."

“It is unconscionable that vital information that could protect the safety and lives of Californians could be kept from the public because of decisions that seem to prioritize the bottom line of companies than the well-being of residents across our state,” Senator Leyva said.  “SB 1149 will right this wrong by making sure that dangerous public hazards are not hidden behind legal documents and walls.  We have seen several examples of secrecy in litigation leading to tremendous public harm, so I look forward to working on this critical legislation that aims to protect the public by ensuring that information about defects and hazards created by companies and individuals are not hidden behind a veil of secrecy.”

In an open democratic society, court records are presumptively open to public inspection.  Even in a dispute between private parties, a court's resolution of that dispute is a matter of public interest.  This is especially true when a case involves a public danger, such as a defective product or environmental hazard.  Sadly, examples abound of courts issuing overbroad protective orders that keep information about dangers to the public secret and hide incriminating documents from public view, as well as lawyers mutually agreeing to broad court orders that prohibit disclosing the very facts that prompted the case.  Though secrecy is sometimes necessary to protect personal information or legitimate trade secrets, concealment is not appropriate when it keeps information about ongoing dangers from the public.

Among the many instances of secrecy protecting dangerous information that hurts the public, these two high-profile examples highlight recent situations where the public’s lack of access to information regarding hazards resulted in deaths:

  • OxyContin: The strong prescription pain medication is now known to have caused well over 100,000 deaths as a result of its manufacturer telling outright lies about safe dosage levels and the likelihood of addiction. In late 2019, faced with state claims totaling over two trillion dollars, the medication’s manufacturer—Purdue Pharma—declared bankruptcy. But in 2004, when the first case—West Virginia’s claims against Purdue Pharma—was settled, the judge allowed the information proving those claims to remain secret. Over a dozen judges in other cases followed the same course of action. (1) The result was over a decade of secrecy until the Los Angeles Times published an investigate report following its review of scores of internal company documents in 2016. (2) Until then, neither the public nor the regulators knew the truth.
  • Berkeley Balcony Collapse: In early January 2022, a seventh person died as a result of the 2015 Berkeley balcony collapse. After the balcony tragedy at the young woman’s birthday party, she never recovered—having suffered brain and other serious injuries—until dying after suffering a stroke. What the partygoers and even state regulators did not know was that the construction company who built the complex had paid $26.5 million in settlements in earlier defect cases, but the information about those cases remained shielded. (3)

If SB 1149 is signed, California would join several other states that have enacted similar anti-secrecy laws, including Florida, Louisiana, Montana, South Carolina, and Washington.

Following introduction, the “Public Right to Know Act” will be considered by the appropriate Senate committee(s) this spring.