Senate Passes “Public Right to Know Act”

Monday, May 23, 2022

SACRAMENTO – Earlier today, the California State Senate approved Senate Bill 1149 authored by Senator Connie M. Leyva (D-Chino), which 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—also known as the “Public Right to Know Act”—specifically seeks to do the following:

  • Create a presumption that no court order may conceal information about a defective product or environmental hazard 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 hazard 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."
  • Allow personal information and legitimate trade secrets to remain confidential.

“Information about defects and hazards created by companies should never be hidden behind a veil of courthouse secrecy that can endanger the lives and safety of Californians,” Senator Leyva said.  “The public must have access to this vital information so that they can decide—for themselves—how they can protect themselves and their families from these defective products or toxic hazards.  It is unconscionable that any company would ever seek to keep critical information that can lead to injuries or even deaths from the public—and all because of their desire to keep making profits.  I thank my Senate colleagues that voted for SB 1149 today, as they are standing on the side of the public by helping to prevent future injuries or deaths.”

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.  Nevertheless, 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 forbid 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 essential 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.
  • Essure Birth Control: Bayer began marketing this supposedly safe metallic, non-surgical form of birth control in 2002. (3) About 1,000,000 women used it. By 2008, Bayer knew that pieces of the metal coils dislodged or broke (4), leaving shards within women’s reproductive system, and causing massive harm, including miscarriages, perforated organs, and the inability to have children or have sexual relations. (5) Yet, despite over 27,000 lawsuits filed by women against Bayer (6), a broad “protective order” favored secrecy over public disclosure until SB 1149 co-sponsor Public Justice intervened and was able to get the information out in 2020. (7) By then, there were tens of thousands of serious injuries and at least 23 deaths verified by the FDA. (8)

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