BP BHEAD INT H

AN ACT Relating to public hazard claims; adding a new section to chapter 4.24 RCW; creating new sections; repealing RCW 4.24.600, 4.24.610, 4.24.620, and 4.16.380; and repealing 1993 c 17 s 4 (uncodified).

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that public health and safety is promoted when individuals and businesses, as consumers, have knowledge which enables them to make informed choices about risks associated with products they may use and exposure to toxic substances. The legislature finds as a matter of public policy that the public has a right to information necessary to help protect members of the public from harm caused by public hazards such as defective products or toxic substances. The legislature also recognizes that preservation of trade secrets, and confidential research, development, proprietary, commercial, or financial information concerning products or business methods protects businesses and prevents unfair competition. The legislature intends to minimize intrusion into confidential information while providing information necessary for public protection. The legislature intends this act as a clarification of the scope intended in the enactment of chapter 17, Laws of 1993, and as a refinement of the procedures for protecting the public interests covered by this act.

NEW SECTION. Sec. 2. A new section is added to chapter 4.24 RCW to read as follows:

As used in this section:

(1)(a) "Public hazard claim" means a civil claim or action in tort for damages for personal injury, wrongful death, or property damage caused by a defective product or hazardous or toxic substances, which presents a risk of similar injury to other members of the public. For purposes of this chapter a public hazard claim is commenced either by filing a complaint with the court against, or by any other notice to, the alleged tortfeasor.

(b) "Confidentiality provision" means any terms which limit the possession, disclosure, or dissemination of information about an alleged public hazard claim. It includes the terms of a court order or private agreement which terminates a public hazard claim, whether those terms are integrated in the order or private agreement or whether written separately.

(2) Members of the public have a right to protect themselves against public hazards. In controversies involving public hazard claims, no confidentiality provision shall be ordered or enforced which conceals information necessary for the public to understand the nature, source, and extent of the risk alleged from the public hazard, except as provided in subsection (4) of this section.

(3) Trade secrets as defined in RCW 19.108.010, confidential research, development, proprietary, financial, or commercial information concerning products or business methods, or personal information, are exempt from restrictions on concealment contained in subsection (2) of this section unless prohibiting concealment of that information is necessary to enable the public to understand the nature, source, and extent of the risk from an alleged public hazard.

(4)(a) In cases involving public hazard claims, confidentiality provisions may be ordered by the court as part of temporary orders as to any matters the court deems appropriate.

(b) In cases involving public hazard claims, which by summary judgment or judgment after trial, the court determines that no public hazard exists or that a public hazard exists but that the risk to the public is de minimus, confidentiality provisions may be ordered by the court as to any matters the court deems appropriate.

(c) In cases involving public hazard claims, which by summary judgment or judgment after trial, the court determines that a public hazard exists that is more than a de minimus risk to the public, confidentiality provisions may be ordered by the court only as to any information the court finds not necessary for a lay member of the public to understand the nature, source, and extent of the risk from the public hazard which the court has found to exist.

(d) In cases involving public hazard claims which are resolved by agreement, whether prior to filing the case or after filing but before judgment, and in cases involving public hazard claims which are filed by third parties as declaratory actions challenging confidentiality provisions in the agreement, confidentiality provisions may be ordered by the court only as to any information the court finds, based upon the evidence, not necessary for a lay member of the public to understand the nature, source, and extent of the risk from the alleged public hazard. If the court finds, based upon the evidence that the risk from the alleged public hazard, if proven, would be de minimus, confidentiality provisions may be ordered for any matters the court deems appropriate. The parties each have an affirmative duty to come forward with evidence of the public hazard alleged. The court shall not enter a finding or judgment that the public hazard alleged does or does not exist.

(e) Any confidentiality provisions ordered in cases involving allegations of public hazards which are not adopted consistent with the provisions of this section are void.

(f) Any confidentiality provisions in private agreements entered into as part of the resolution of public hazard claims which are not adopted consistent with the provisions of this section are voidable by the court.

(g) Any confidentiality provisions related to public hazard claims which are determined void are severable from the remainder of the order or agreement notwithstanding any provision to the contrary; the remainder of the order or agreement shall remain in force.

(h) Nothing prevents the court from denying the request for confidentiality provisions under other law.

(5) In cases of third party actions challenging confidentiality provisions in orders or agreements, the court has discretion to award to the prevailing party actual damage, costs, reasonable attorneys' fees, and such other terms as the court deems just.

NEW SECTION. Sec. 3. This act shall be liberally construed.

NEW SECTION. Sec. 4. This act applies to all confidentiality provisions entered or executed with respect to public hazard claims on or after July 1, 1993.

NEW SECTION. Sec. 5. The following acts or parts of acts are each repealed:

(1) RCW 4.24.600 and 1993 c 17 s 1;

(2) RCW 4.24.610 and 1993 c 17 s 2;

(3) RCW 4.24.620 and 1993 c 17 s 3;

(4) RCW 4.16.380 and 1993 c 17 s 5; and

(5) 1993 c 17 s 4 (uncodified).