AN ACT Relating to full disclosure of civil
court proceedings relating to public hazards; adding new sections to chapter
4.24 RCW; adding a new section to chapter 4.16 RCW; creating a new section;
providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec. 1. A
new section is added to chapter 4.24 RCW to read as follows:
(1) As used in this section, "public
hazard" means an instrumentality, including but not limited to any device,
instrument, procedure, product, or a condition of a device, instrument,
procedure, or product, that:
(a) Presents a real and substantial potential
for repetition of the harm inflicted; or
(b) Involves a single incident which affected
or was likely to affect many people.
As used in this section, the term
"procedure" does not include acts or procedures by licensed
professionals acting within the scope of their licenses.
(2) Except as provided in this section, no
court shall enter an order or judgment which has the purpose or effect of
concealing a public hazard or any relevant information or material concerning a
public hazard, nor shall the court enter an order or judgment that has the
purpose or effect of concealing any information or material that is relevant to
the public's knowledge or understanding of a public hazard.
(3) Any portion of an agreement or contract
that has the purpose or effect of concealing a public hazard, relevant
information or material concerning a public hazard, or information or material
that is relevant to the public's knowledge or understanding of a public hazard,
is void, contrary to public policy, and may not be enforced. A party to the
agreement or contract may bring a declaratory action pursuant to this section
to determine whether an agreement or contract conceals a public hazard and is
void.
(4)(a) In any declaratory or other civil
action, a party may bring a motion for a temporary order restraining disclosure
to the public or to third parties information or material about the party
making the motion which is known to another party or which is sought from the
party making the motion by another party. Upon good cause shown the court
shall examine in camera the information or material sought to be protected.
The court may in the court's discretion issue a temporary order restraining a
party or parties from disseminating the protected information or material to
the public or third parties. The temporary order shall terminate upon the
entry of a final order or judgment or a dismissal of the action.
(b) In any final order or judgment entered in
any declaratory or other civil action, if the court finds that all or portions
of the information or material sought to be protected is relevant to the
public's knowledge or understanding of a public hazard, the court shall provide
for disclosure of the information or material. If the court finds that all or
a portion of the information or material sought to be protected is not relevant
to the public's knowledge or understanding of the public hazard, the court
shall require the information to be sealed and may include in the final order
or judgment provisions restraining any or all parties from disclosing the
information which is protected.
(5)(a) Any third party, including but not
limited to representatives of news media, has standing to contest a motion,
order, judgment, agreement, or contract that allegedly conceals a public
hazard. The third party may challenge the motion by intervention during the
court action or the third party may bring a declaratory action pursuant to this
section to determine whether the agreement, contract, order, or judgment
conceals a public hazard.
(b) The third party must (i) establish the
existence of a public hazard; (ii) establish that the public hazard was a
subject within the agreement, contract, order, or judgment; and (iii) establish
a basis for a reasonable belief by the third party that the agreement,
contract, order, or judgment concealed the public hazard in violation of
sections 1 through 3 of this act.
(c) If the court finds that the third party has
met the requirements of (b) of this subsection, the court shall order the
defendant to produce the information or material for an in camera review by the
court. The court shall determine whether the information or material protected
under the agreement, contract, order, or judgment conceals a public hazard in
violation of sections 1 through 3 of this act. Upon review, the court shall
issue an order regarding dissemination of the information or material in
accordance with subsection (4)(b) of this section.
(d) The court may award reasonable attorneys'
fees and actual costs to the prevailing party in an action under this
subsection (5).
NEW SECTION. Sec. 2. A
new section is added to chapter 4.24 RCW to read as follows:
Any person who violates an order either
publishing or sealing information or material issued under sections 1 through 3
of this act, shall be in contempt of court. The court shall award attorneys'
fees and costs incurred in enforcing the order plus actual damages against the
party who violated the order.
NEW SECTION. Sec. 3. A
new section is added to chapter 4.24 RCW to read as follows:
Any party who attempts to condition an
agreement or contract upon another party's agreement to conceal an
instrumentality that the party knows or reasonably should have known is a
public hazard or any party who enters into an agreement or contract that
conceals an instrumentality that the party knows or reasonably should have
known is a public hazard shall be in violation of the consumer protection act,
chapter 19.86 RCW. If the party is engaged in the business of insurance then
the party shall also be in violation of RCW 48.30.010.
NEW SECTION. Sec. 4.
This act shall apply to all agreements, contracts, orders, and judgments
entered on or after the effective date of this act.
NEW SECTION. Sec. 5. A
new section is added to chapter 4.16 RCW to read as follows:
An action for declaratory relief or other civil
action brought pursuant to sections 1 through 3 of this act to determine
whether an agreement, contract, order, or judgment conceals a public hazard in
violation of sections 1 through 3 of this act must be brought within three
years of entry of the order or judgment or three years from the date the
parties entered into the agreement or contract.The
text of the following section has been vetoed by the Governor. It is noted in
bold italic.
*NEW SECTION. Sec. 6.
This act is necessary for the immediate preservation of the public peace,
health, or safety, or support of the state government and its existing public
institutions, and shall take effect July 1, 1993.
*Sec. 6 was vetoed, see message at end of chapter.
Passed the Senate March 10, 1993.
Passed the House March 29, 1993.
Approved
by the Governor April 12, 1993, with the exception of certain items which were
vetoed.
Filed in Office of Secretary of State April 12,
1993.
Note: Governor's explanation of partial veto is
as follows:
"I am returning herewith, without my
approval as to section 6, Engrossed Senate Bill No. 5362 entitled:
"AN ACT Relating to
full disclosure of civil court proceedings relating to public hazards."
Section 6 of Engrossed Senate No. 5362 is an
emergency clause which implements this bill on July 1, 1993. I do not believe
that the early effective date is appropriate in this case. The purpose of ESB
5362 is to inform the public of the existence of public hazards, such as
products or instrumentalities which pose a danger of damage or injury to the
public, by establishing as the public policy of this state that information
regarding the existence of such hazards not be sealed by court order nor
concealed by private contract or agreement. It is not the intent of this bill
to disclose trade secrets or other proprietary information protected under
existing statutes, case law and court rules. The existence of a public hazard
will be determined by the courts and only such information as the court
determines to be necessary to inform the public of the existence and nature of
the hazard will be subject to the disclosure requirements of the bill.
With the exception of section 6, Engrossed
Senate Bill No. 5362 is approved."
