STATE OF NEW YORK
       ________________________________________________________________________
 
                                         7513
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                    March 27, 2001
                                      ___________
 
       Introduced  by M. of A. SWEENEY -- read once and referred to the Commit-
         tee on Codes
 
       AN ACT to amend the civil practice law and rules, in relation to protec-
         tive orders and the sunshine in disclosure act
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Subdivision (a) of section 3103 of the civil practice law
    2  and rules, as amended by chapter 98 of the laws of 1993, is  amended  to
    3  read as follows:
    4    (a)  Prevention  of  abuse. [The] Subject to the provisions of section
    5  thirty-one hundred forty-three of this chapter the court may at any time
    6  on its own initiative, or on motion of any party or of any  person  from
    7  whom  discovery  is  sought,  make a protective order denying, limiting,
    8  conditioning or regulating the use of any disclosure device. Such  order
    9  shall be designed to prevent unreasonable annoyance, expense, embarrass-
   10  ment, disadvantage, or other prejudice to any person or the courts.
   11    § 2. The civil practice law and rules is amended by adding a new arti-
   12  cle 31-A to read as follows:
   13                                ARTICLE 31-A
   14                         SUNSHINE IN DISCLOSURE ACT
   15  Section 3141. Short title.
   16          3142. Definitions.
   17          3143. Sunshine in disclosure.
   18    §  3141.  Short title. This article shall be known and may be cited as
   19  the "Sunshine in Disclosure Act".
   20    § 3142. Definitions. When used in this article,  unless  otherwise  so
   21  stated, the following terms shall have the following meanings:
   22    (a)  Public hazard. "Public hazard" means any instrumentality, includ-
   23  ing, but not limited to,  any  device,  instrument,  person,  procedure,
   24  product or the condition of any device, instrument, person, procedure or
   25  product that has caused, or is likely to cause, an injury.
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04269-01-1

       A. 7513                             2
 
    1    (b)  Confidentiality  agreement  or settlement agreement. A "confiden-
    2  tiality agreement" or "settlement  agreement"  shall  mean  any  private
    3  agreement  or  court ordered agreement resolving a cause of action which
    4  limits the possession, disclosure or dissemination of information  about
    5  an alleged public hazard.
    6    (c)  Trade  secret. A "trade secret" shall mean information, technical
    7  or non-technical, including, but not limited  to,  a  formula,  pattern,
    8  compilation, program, device, method, technique or process that:
    9    (1)  derives independent economic value, actual or potential, from not
   10  being generally known to, and not being readily ascertainable by  proper
   11  means,  by  other persons who can obtain economic value from its disclo-
   12  sure or use; and
   13    (2) is the subject of efforts that are reasonable  under  the  circum-
   14  stances to maintain its secrecy.
   15    §  3143.  Sunshine  in  disclosure.  (a)  Except  as  pursuant to this
   16  section, no court shall enter  an  order  or  judgement  which  has  the
   17  purpose  or  effect  of  concealing  a public hazard, or any information
   18  concerning a public hazard, or any information which may  be  useful  to
   19  members  of  the  public  in protecting themselves from injury which may
   20  result from the public hazard.
   21    (b) Trade secrets, as defined in section thirty-one hundred  forty-two
   22  of  this  article,  which  are not pertinent to public hazards, shall be
   23  protected and not ordered to be disclosed.
   24    (c) Any portion of a confidentiality agreement or settlement agreement
   25  which has the purpose or effect of concealing a public  hazard,  or  any
   26  information relating to a public hazard, or any information which may be
   27  useful  to  members  of  the public in protecting themselves from injury
   28  which may result from a public hazard, is null and void as  contrary  to
   29  public policy and may not be enforced.
   30    (d)  Any  substantially  affected person, including but not limited to
   31  representatives of news media, has standing to contest an  order,  judg-
   32  ment,  agreement  or  contract  that violates this section. A person may
   33  contest an order, judgment, agreement or  contract  that  violates  this
   34  section by motion in the court that entered the order or judgment.
   35    (e)  If  upon  motion  and  good  cause shown by a party attempting to
   36  prevent disclosure of information or materials which have not previously
   37  been disclosed, including but not limited to, alleged trade  secrets  as
   38  previously defined, the court finds that the information or materials or
   39  portions  thereof  consist  of information concerning a public hazard or
   40  information which may be useful to members of the public  in  protecting
   41  themselves  from injury which may result from a public hazard, the court
   42  shall allow disclosure of the  information  or  materials.  If  allowing
   43  disclosure, the court shall allow disclosure of only that portion of the
   44  information or materials necessary or useful to the public regarding the
   45  public hazard.
   46    (f)  Any  portion of an agreement or contract which has the purpose or
   47  effect of concealing information relating to the  settlement  or  resol-
   48  ution  of any claim or action against the state, its agencies, or subdi-
   49  visions or against any municipality or constitutionally created body  or
   50  commission is void, contrary to public policy and may not be enforced.
   51    §  3.  This act shall take effect 30 days after it shall have become a
   52  law.

 
BILL NUMBER: A7513
 
SPONSOR: Sweeney

 
TITLE OF BILL:
 
AN ACT to amend the Civil Practice Law and Rules, to adopt the Sunshine
in Disclosure Act
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
To enact the Sunshine in Disclosure Act which would preclude a party
during the discovery phase of litigation from failing to disclose a
public hazard or information or materials concerning a public hazard.
 
 
SUMMARY OF SPECIFIC PROVISIONS:
 
Section 3141 refers to the Act as the "Sunshine in Disclosure Act."
 
Section 3142 provides definitions for public hazard, confidentiality and
settlement agreement and trade secret.
 
Section 3143 (a) provides that the Court shall not enter an order or
judgment which conceals a public hazard, information concerning a public
hazard or information which may be useful to the public in protection
from the public hazard.
 
Section 3143 (b) provides that trade secrets shall not be subject to
disclosure.
 
Section 3143 (c) provides that confidentiality agreements or settlement
agreements which have the purpose of concealing a public hazard are void
as contrary to public policy and may not be enforced.
 
Section 3143(d) provides that any person or entity that may be adversely
affected by the public hazard has standing to contest an order or judg-
ment that violates this section.  Section 3143(e) provides that if
information about a public hazard is to be disclosed, including trade
secrets, only that portion of information or materials necessary or
useful to the public concerning the public hazard shall be disclosed.
 
Section 3143 (f) provides that any agreement or contract involving the
State or any municipality which conceals a public hazard is void as
contrary to public policy and may not be enforced.
 
 
JUSTIFICATION:
 
For decades, it has been recognized that hazards affecting residents are
matters of public concern. While many laws have been enacted at all
levels of government establishing safety standards at the workplace, for
the environment and for consumer products, it is the litigation process
where the degree of threats to public safety may not be disclosed to the
public. For example, during the discovery stage of a products liability
action, the Plaintiff usually makes a motion demanding that the Defend-
ant disclose information or materials regarding the product which is the
subject of the lawsuit. The Defendant often will not only fail to turn
over the requested information or materials, but will also argue that
disclosure should be denied since it would result in the exposure of a
trade secret or legal privilege. Although trade secrets and legal privi-
 
lege should be protected, these concerns should not be the end of the
inquiry.
 
While Section 3103 of the CPLR currently provides for protective orders,
it does not require the disclosure of information or materials that are
a public hazard or concern a public hazard.  Florida, Washington and
Louisiana have enacted a similar disclosure law. New York should follow
the lead of these states and enact the "Sunshine in Disclosure Act" to
prevent the abuse of the discovery process and the unwarranted non-dis-
closure of public hazards.
 
 
LEGISLATIVE HISTORY:
 
New bill.
 
 
FISCAL IMPLICATIONS:
 
None.
 
 
EFFECTIVE DATE:
 
Shall take effect thirty days after it shall have become a law.