Discussion of S. 623, Sunshine in Litigation Act Senate Judiciary Committee mark-up May 19, 2011 Sen.

Kohl: Thank you very much, Mr. Chairman, for including on today’s agenda the Sunshine in Litigation Act, which is a bill that will curb the ongoing abuse of secrecy orders in federal courts. I’d also like to thank you, Mr. Chairman, and Senator Graham for cosponsoring this legislation, as well as Sen. Grassley for working with me on additional changes. Under our modest proposal, judges would be required to consider public health and safety before granting a protective order or sealing court records and settlement agreements. They would have the discretion to grant or deny the secrecy request based on a balancing test that weighs the public’s interest in disclosure of a potential public health and safety hazard versus legitimate interest in secrecy. We’ve heard concerns about the reach of this legislation, so we clarified that it only applies to cases relevant to public health and safety, and our substitute amendment makes clear that it does not apply retroactively. We also include specific protections for national security information and personal information. This bipartisan bill creates the appropriate balance between secrecy and openness in cases involving public health and safety, so I urge our colleagues to support our efforts to pass this long overdue legislation…. … Sen. Grassley: I’ve had some concerns. I’m pleased that Sen. Kohl has been very receptive to addressing some of my issues, for example, one of my concerns has been that this bill would harm the ability of parties in litigation to legitimately protect personal information from disclosure to the public. I’ve been concerned that individuals may have personal and sensitive information that they would rather not disclose to the public because they feel that the disclosure of information could be an unwarranted invasion of privacy and a source of personal embarrassment. Specifically, I was concerned that the standard contained in the bill for sealing discovery documents or settlement agreements was so high that persons who have personal or medical information that they would like to keep confidential wouldn’t be able to be sealed in the record in their lawsuit. I was also concerned that the standard in the bill would require disclosure of personal, financial and employment information, as well as Social Security numbers, phone numbers and other information that an individual may not want out in the public and wasn’t necessary to be disclosed. So I’m pleased that Sen. Kohl worked with me to include language that would help protect this kind of personal information. I also raised concerns about the bill possibly requiring the disclosure of national security and classified information in the event some of this came up in the litigation. I’m pleased that Sen. Kohl included language that states that nothing shall be construed to require or authorize the disclosure of classified information. [Roll Call vote, 12-6] Leahy: I want to compliment Sen. Kohl. I know he has worked a long, long time on this. Kohl: 18 years. Feinstein: 18 years? Kohl: It’s been around for 18 years. Leahy: 18 years. So congratulations. Transcribed by Carter Wood.

Sign up to vote on this title
UsefulNot useful