Senator Leyva’s “Public Right to Know Act” Clears Assembly Judiciary Committee

SB 1149 Prioritizes Health and Safety of California Residents

Tuesday, June 14, 2022

SACRAMENTO – Now moving one step closer to becoming law, the Assembly Judiciary Committee today passed 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.

Sponsored jointly by Consumer Reports and Public Justice, SB 1149 would 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 identifying information, proprietary customer lists, and legitimate trade secrets to remain confidential.

“It is outrageous and downright wrong that vital information that could protect the health and lives of Californians could be kept from the public because of the desire by certain companies to continue making profits over the wellbeing of residents,” Senator Leyva said.  “Information about dangerous public hazards should never be hidden behind legal documents and courthouse walls. Quite the opposite, the public has a right to know about any defective products or environmental hazards that companies already know about, but are choosing to keep that information secret so they can continue with business as usual.  Those practices are wrong and—once SB 1149 becomes law—we will finally put an end to this veil of courthouse secrecy that continues to endanger the lives of Californians across our state.  I thank the Assembly Judiciary Committee for standing with consumers and public disclosure by passing this important bill and look forward to the ‘Public Right to Know Act’ now advancing in the legislative process.”

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 occasionally necessary to protect personal information or legitimate trade secrets, concealment is not appropriate when it keeps information about ongoing dangers from the public.

Although there are many instances of secrecy protecting dangerous information that hurts the public, these two high-profile examples present 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.
  • 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 signed into law, California would join several other states that have enacted similar anti-secrecy laws, including Florida, Louisiana, Montana, South Carolina, and Washington.