California’s ‘Public Right to Know Act’ would require sunshine on public hazards, protecting honest businesses
By Phillip Robinson
In recent years we have learned that American Courts and the judicial system have become less open and have concealed from the public material information that could have otherwise saved thousands of lives. This development, like the overuse of non-disclosure agreements (NDAs) to shield perpetrators of sexual misconduct at work, has morphed into overbroad confidentiality orders entered by courts but policed by almost no one.
But that may soon change. Right now, the California State Senate is considering legislation to end specific private legal agreements and unseal court records that conceal critical information about defective products and environmental hazards that pose a danger to public health and safety. The ‘Public Right to Know Act’ (SB 1149), authored by Senator Connie Leyva and co-sponsored by Public Justice and Consumer Reports, would be good for the public and protect honest businesses that are at a disadvantage when their competition bends the rules, hides information that should be public, and profits by continuing to sell hazardous products or failing to work in a safe and sound manner to protect the environment.
Let’s consider some examples — such as the enduring opioid epidemic. The public now knows that Purdue Pharma’s initial marketing of OxyContin as non-addictive and safe was false. However, when the State of West Virginia sued Purdue in 2004 and dozens of other actions followed soon thereafter, the courts routinely issued blanket protective orders to keep the information revealing the addictive hazards of opioids secret and out of the public eye — even though it was published in the court records. Had the information been published, as occurs with most court records, it is estimated that 250,000 deaths across the country could have been avoided and another 250,000 deaths from subsequent fentanyl and heroin addiction arising from the first opioid exposure.
Or consider the ‘Erin Brockovich’ story of the environmental hazard caused by PG&E’s contamination of the land and water in the small Mojave Desert town of Hinkley with chromium-6 — a known carcinogen harmful to the public’s health and safety. PG&E knew for decades about the risks but did not publicly disclose the information. A number of residents filed a class-action lawsuit that settled in a mass, confidential arbitration in 1996, which later became the basis for the award-winning movie starring Julia Roberts. But because the original case was confidential, the true facts of the hazard caused by PG&E’s dumping of chromium-6 was not known. More than a decade later, it was learned that PG&E’s underground chromium-6 plume grew causing additional environmental hazards to hundreds more who were exposed to chromium-6 every day by drinking and bathing in it or even swimming in it. Had the information disclosed in the first settlement not been concealed by a private arbitration agreement, other residents not included in that settlement could have known sooner about the hazardous risks to them as PG&E’s chromium-6 plume expanded.
A business that invests in safe, non-additive medicines the right way, for instance, should not be undercut by a competitor who conceals the true additive and possibly fatal nature of its competing product by making false and deceptive claims.
The hazardous examples of opioid addictiveness and the PG&E chromium-6 plume are not alone. Other public hazards have been concealed in court records by overly broad protective orders involving products that killed children, caused accidents on the highways by defective tires, or even other drugs that caused birth defects and harm to children.
SB 1149 would not only alert the public to hazards but the overall marketplace would improve as businesses police their competition and market themselves as the safe and sound alternative. A business that invests in safe, non-additive medicines the right way, for instance, should not be undercut by a competitor who conceals the true additive and possibly fatal nature of its competing product by making false and deceptive claims.
None of this is to suggest that a business’s actual trade secrets (i.e. intellectual property) should not be protected by appropriate court orders and agreements. In fact, SB 1149 expressly protects true trade secrets. However, hazards that pose a danger to public health and safety are not trade secrets in America.
If court or other judicial records have information about defective tires, mass-marketed additive drugs fraudulently sold as non-additive, toxic plums in the water table caused by utility companies, or other hazards that will cause harm to the health and safety of California residents — that information should not be sealed. It should be available to the public and honest businesses that are at a competitive disadvantage for doing the right thing and following the law.
Phillip Robinson is the Richard Zitrin Anti-Secrecy Contract Attorney for Public Justice
