“Public Right to Know Act” Passes Senate Judiciary Committee

SB 1149 is Jointly Sponsored by Consumer Reports and Public Justice

Tuesday, April 5, 2022

SACRAMENTO – Upholding the ability of Californians to find out the facts about dangerous public hazards that are discovered during litigation, the Senate Judiciary Committee today approved Senate Bill 1149 authored by Senator Connie M. Leyva (D-Chino). 

Also known as the “Public Right to Know Act”, SB 1149 will:

  • Create a presumption that no court order may conceal information about a defective product or environmental condition that poses a danger to public health or safety unless the court finds that the public interest in disclosure is clearly outweighed by a specific and substantial need for secrecy.
  • 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.
  • 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."

“Californians deserve to know critical information that will help keep themselves and their families safe from hazards and dangers that companies—because of their desire to keep making profits—keep hidden behind overbroad protective orders and secrecy agreements,” Senator Leyva said.  “When people are injured or killed due to defective products or toxic conditions, ordinary Californians should not have to fight to discover the truth about those products and conditions. The premise of SB 1149 is simple: If a lawsuit uncovers information about a defective product or environmental hazard—whether in discovery, in court records, or in a settlement agreement—that information will no longer be secret.  This important measure will help to keep companies accountable and prevent future injuries or deaths.  It is long overdue that we finally lift this veil of courthouse secrecy that has hurt countless children and families across the Golden State.”

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.  Still, examples abound of courts issuing overbroad protective orders that keep information about dangers to the public secret and hide incriminating documents from public view, and lawyers mutually agreeing to broad court orders and secrecy deals 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.

Though there are many instances of secrecy protecting dangerous information that hurts the public, these two high-profile examples note recent situations where the public’s lack of access to vital 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 investigative 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 into law, California would join several other states that have enacted similar anti-secrecy laws, including Florida, Louisiana, Montana, South Carolina, and Washington.