1.This Act may be cited as the
Sunshine in Litigation Act of
2011
.
2.Restrictions on
protective orders and sealing of cases and settlements
(a)Chapter 111 of title 28, United States Code, is amended
by adding at the end the following:
1660.Restrictions
on protective orders and sealing of cases and settlements
(a)(1)In any civil action
in which the pleadings state facts that are relevant to the protection of
public health or safety, a court shall not enter, by stipulation or otherwise,
an order otherwise authorized under rule 26(c) of the Federal Rules of Civil
Procedure restricting the disclosure of information obtained through discovery,
an order approving a settlement agreement that would restrict the disclosure of
such information, or an order restricting access to court records unless in
connection with such order the court has first made independent findings of
fact that—
(A)such order would
not restrict the disclosure of information which is relevant to the protection
of public health or safety; or
(B)(i)the public interest
in the disclosure of past, present, or potential health or safety hazards is
outweighed by a specific and substantial interest in maintaining the
confidentiality of the information or records in question; and
(ii)the requested
order is no broader than necessary to protect the confidentiality interest
asserted.
(2)No order entered
as a result of the operation paragraph (1), other than an order approving a
settlement agreement, may continue in effect after the entry of final judgment,
unless at the time of, or after, such entry the court makes a separate finding
of fact that the requirements of paragraph (1) continue to be met.
(3)The party who is
the proponent for the entry of an order, as provided under this section, shall
have the burden of proof in obtaining such an order.
(4)This section shall
apply even if an order under paragraph (1) is requested—
(A)by motion pursuant
to rule 26(c) of the Federal Rules of Civil Procedure; or
(B)by application
pursuant to the stipulation of the parties.
(5)(A)The provisions of
this section shall not constitute grounds for the withholding of information in
discovery that is otherwise discoverable under rule 26 of the Federal Rules of
Civil Procedure.
(B)A court shall not
approve any party’s stipulation or request to stipulate to an order that would
violate this section.
(b)(1)In any civil action
in which the pleadings state facts that are relevant to the protection of
public health or safety, a court shall not approve or enforce any provision of
an agreement between or among parties, or approve or enforce an order entered
as a result of the operation of subsection (a)(1), to the extent that such
provision or such order prohibits or otherwise restricts a party from
disclosing any information relevant to such civil action to any Federal or
State agency with authority to enforce laws regulating an activity relating to
such information.
(2)Any such
information disclosed to a Federal or State agency shall be confidential to the
extent provided by law.
(c)(1)Subject to
paragraph (2), a court shall not enforce any provision of a settlement
agreement described under subsection (a)(1) between or among parties that
prohibits 1 or more parties from—
(A)disclosing the
fact that such settlement was reached or the terms of such settlement, other
than the amount of money paid; or
(B)discussing a civil
action, or evidence produced in the civil action, that involves matters
relevant to the protection of public health or safety.
(2)Paragraph (1)
applies unless the court has made independent findings of fact that—
(A)the public
interest in the disclosure of past, present, or potential public health or
safety hazards is outweighed by a specific and substantial interest in
maintaining the confidentiality of the information or records in question;
and
(B)the requested
order is no broader than necessary to protect the confidentiality interest
asserted.
(d)When weighing the
interest in maintaining confidentiality under this section, there shall be a
rebuttable presumption that the interest in protecting personally identifiable
information relating to financial, health or other similar information of an
individual outweighs the public interest in disclosure.
(e)Nothing in this
section shall be construed to permit, require, or authorize the disclosure of
classified information (as defined under section 1 of the Classified
Information Procedures Act (18 U.S.C.
App.)).
.
(b)Technical and
conforming amendmentThe table of sections for chapter 111 of
title 28, United States Code, is amended by adding after the item relating to
section 1659 the following:
1660. Restrictions on protective orders
and sealing of cases and
settlements.
.
3.The amendments made by
this Act shall—
(1)take effect 30
days after the date of enactment of this Act; and
(2)apply only to
orders entered in civil actions or agreements entered into on or after such
date.
1.This Act may be cited as the
Sunshine in Litigation Act of
2011
.
2.Restrictions on
protective orders and sealing of cases and settlements
(a)Chapter 111 of title 28, United States Code, is amended
by adding at the end the following:
1660.Restrictions on
protective orders and sealing of cases and settlements
(a)(1)Except as provided
under subsection (e), in any civil action in which the pleadings state facts
that are relevant to the protection of public health or safety, a court shall
not enter, by stipulation or otherwise, an order otherwise authorized under
rule 26(c) of the Federal Rules of Civil Procedure restricting the disclosure
of information obtained through discovery, an order approving a settlement
agreement that would restrict the disclosure of such information, or an order
restricting access to court records unless in connection with such order the
court has first made independent findings of fact that—
(A)such order would not
restrict the disclosure of information which is relevant to the protection of
public health or safety; or
(B)(i)the public interest
in the disclosure of past, present, or potential health or safety hazards is
outweighed by a specific and substantial interest in maintaining the
confidentiality of the information or records in question; and
(ii)the requested order is
no broader than necessary to protect the confidentiality interest
asserted.
(2)No order entered as a
result of the operation paragraph (1), other than an order approving a
settlement agreement, may continue in effect after the entry of final judgment,
unless at the time of, or after, such entry the court makes a separate finding
of fact that the requirements of paragraph (1) continue to be met.
(3)The party who is the
proponent for the entry of an order, as provided under this section, shall have
the burden of proof in obtaining such an order.
(4)This section shall apply
even if an order under paragraph (1) is requested—
(A)by motion pursuant to
rule 26(c) of the Federal Rules of Civil Procedure; or
(B)by application pursuant
to the stipulation of the parties.
(5)(A)The provisions of
this section shall not constitute grounds for the withholding of information in
discovery that is otherwise discoverable under rule 26 of the Federal Rules of
Civil Procedure.
(B)A court shall not approve
any party’s stipulation or request to stipulate to an order that would violate
this section.
(b)(1)In any civil action
in which the pleadings state facts that are relevant to the protection of
public health or safety, a court shall not approve or enforce any provision of
an agreement between or among parties, or approve or enforce an order entered
as a result of the operation of subsection (a)(1), to the extent that such
provision or such order prohibits or otherwise restricts a party from
disclosing any information relevant to such civil action to any Federal or
State agency with authority to enforce laws regulating an activity relating to
such information.
(2)Any such information
disclosed to a Federal or State agency shall be confidential to the extent
provided by law.
(c)(1)Subject to
paragraph (2), a court shall not enforce any provision of a settlement
agreement described under subsection (a)(1) between or among parties that
prohibits 1 or more parties from—
(A)disclosing the fact that
such settlement was reached or the terms of such settlement, other than the
amount of money paid; or
(B)discussing a civil
action, or evidence produced in the civil action, that involves matters
relevant to the protection of public health or safety.
(2)Paragraph (1) applies
unless the court has made independent findings of fact that—
(A)the public interest in
the disclosure of past, present, or potential public health or safety hazards
is outweighed by a specific and substantial interest in maintaining the
confidentiality of the information or records in question; and
(B)the requested order is no
broader than necessary to protect the confidentiality interest asserted.
(d)When weighing the
interest in maintaining confidentiality under this section, there shall be a
rebuttable presumption that the interest in protecting personally identifiable
information relating to financial, health or other similar information of an
individual outweighs the public interest in disclosure.
(e)Nothing in this
section—
(1)shall prohibit a court
from entering an order that would restrict the disclosure of information, or an
order restricting access to court records, if in either instance such order is
necessary to protect from public disclosure—
(A)information classified
under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy; or
(B)intelligence sources and
methods; or
(2)shall be construed to
permit, require, or authorize the disclosure of information that—
(A)is classified under
criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy; or
(B)reveals intelligence
sources and
methods.
.
(b)Technical and
conforming amendmentThe table of sections for chapter 111 of
title 28, United States Code, is amended by adding after the item relating to
section 1659 the following:
1660. Restrictions on protective orders and
sealing of cases and
settlements.
.
3.Effective date and
applicationThe amendments
made by this Act shall—
(1)take effect 30 days after
the date of enactment of this Act;
(2)apply only to orders
entered in civil actions or agreements entered into on or after the effective
date of this Act; and
(3)not provide a basis for
the—
(A)granting of a motion to
reconsider, modify, amend or vacate a protective order or settlement order
entered into before the effective date of this Act; or
(B)reversal on appeal of a
protective order or settlement order entered into before the effective date of
this Act.
May 19, 2011
Reported with an amendment