ASSEMBLY, No. 1736

STATE OF NEW JERSEY

216th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2014 SESSION

 


 

Sponsored by:

Assemblyman  TIMOTHY J. EUSTACE

District 38 (Bergen and Passaic)

 

 

 

 

SYNOPSIS

     Establishes the “New Jersey Sunshine in Litigation Act”; requires disclosure of judgments, records, and settlements concerning public hazards.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act establishing the “New Jersey Sunshine in Litigation Act” and supplementing Title 2A of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    This act shall be known and may be cited as the “New Jersey Sunshine in Litigation Act.”

 

     2.    a.  As used in this act:

     “Public hazard” means an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.

     “Public entity” means the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.

     “Trade secret” means any formula, plan, pattern, process, production data, information, or compilation of information, which is not patented, which is known only to the claimant and certain other individuals, and which is used in the fabrication and production of an article of trade or service, and which gives the person possessing it a competitive advantage over businesses who do not possess it, or the secrecy of which is certified by an appropriate official of the federal government as necessary for national defense purposes.

     b.    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 information concerning a public hazard, nor shall the court enter an order or judgment which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.

     c.     Any portion of an agreement or contract which has the purpose or effect of concealing a public hazard, any information concerning a public hazard, or any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard, is void, contrary to public policy, and may not be enforced.

     d.    Nothing in this section shall be construed to require disclosure of any documents, materials, or information exempted from disclosure under the provisions of the “Patient Safety Act,” P.L.2004, c.9 (C.26:2H-12.23 et seq.) or disclosure of a court order applying the “Patient Safety Act.”

     e.     Nothing in this section shall be construed to require disclosure of a trade secret that is not pertinent to a public hazard.  In any hearing pursuant to subsection g. to determine whether an item is a trade secret, the party making the trade secret claim shall have the burden of showing the claim is valid.  In determining the validity of a trade secret claim, the court shall consider:

     (1)   The extent to which the information for which the trade secret claim is made is known outside the claimant's business;

     (2)   The extent to which the information is known by employees and others involved in the claimant's business;

     (3)   The extent of measures taken by the claimant to guard the secrecy of the information;

     (4)   The value of the information, to the claimant or the claimant's competitor;

     (5) The amount of effort or money expended by the claimant in developing the information; and

     (6) The ease or difficulty with which the information could be disclosed by analytical techniques, laboratory procedures, or other means.

     f.     Any substantially affected person, including but not limited to representatives of news media, has standing to contest an order, judgment, agreement, or contract that violates this section.  A person may contest an order, judgment, agreement, or contract that violates this section by motion to the court that entered the order or judgment, or by bringing a declaratory judgment action.

     g.    Upon motion and good cause shown by a party attempting to prevent disclosure of information or materials which have not previously been disclosed, including but not limited to alleged trade secrets, the court shall examine the disputed information or materials in camera.  The court shall grant a hearing on the motion at the request of any party.  The party attempting to prevent disclosure shall have the burden of proof.  If the court finds that the information or materials or portions thereof consists of information concerning a public hazard or information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard, the court shall allow disclosure of the information or materials.  If allowing disclosure, the court shall allow disclosure of only that portion of the information or materials necessary or useful to the public regarding the public hazard.

 

     3.    a.  Any portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against a public entity is void, contrary to public policy, and may not be enforced.  Any person, including but not limited to representatives of news media, has standing to contest an order, judgment, agreement, or contract that violates this section.  A person may contest an order, judgment, agreement, or contract that violates this subsection by motion in the court that entered such order or judgment, or by bringing a declaratory judgment action.

     b.    Any person having custody of any document, record, contract, or agreement relating to any settlement as set forth in this section shall maintain said records in compliance with the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) and P.L.2001, c.404 (C.47:1A-5 et al.).

     c.     Any custodian who knowingly and willfully fails to disclose and provide any document, record, contract, or agreement as set forth in this section shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation. This penalty shall be collected and enforced in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), and the Rules of Court governing actions for the collection of civil penalties.  The Superior Court shall have jurisdiction of proceedings for the collection and enforcement of the penalty imposed by this section.

     This section does not apply to trade secrets, proprietary confidential business information, or other information that is confidential under State or federal law.

     d.    A public entity that settles a claim in tort that requires the expenditure of public finds in excess of $5,000 shall publish notice in two newspapers of general circulation in the State or on the public entity’s Internet website within 60 days of entering into such settlement.

     e.     (1)  Nothing in this section shall be deemed to affect the requirement set forth in P.L.1989, c.336 (C.2A:82-46), or in any other law or Rule of Court, that in prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of children under N.J.S.2C:24-4, or in any action alleging an abused or neglected child under P.L.1974, c.119 (C.9:6-8.21 et seq.) or injury or illness based on sexual abuse under section 1 of P.L.1992, c.109 (C.2A:61B-1), the name, address, and identity of a victim who was under the age of 18 at the time of the alleged commission of an offense shall not appear on the indictment, complaint, or any other public record.

     (2)   Nothing in this section shall be deemed to preclude or otherwise limit the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) and P.L.2001, c.404 (C.47:1A-5 et al.).

 

     4.    This act shall take effect on the 60th day following enactment, except that the Administrative Office of the Courts may take such anticipatory action in advance thereof as shall be necessary for the implementation of this act.


STATEMENT

 

     This bill would establish the “New Jersey Sunshine in Litigation Act.”

     The bill would provide that no court could enter an order or judgment which has the purpose or effect of concealing a public hazard, information concerning a public hazard, or information that may be useful to members of the public in protecting themselves from injury that may result from the public hazard.  Any portion of an agreement or contract that has the purpose or effect of concealing a public hazard or information concerning a public hazard would be void, contrary to public policy, and would not be enforced.  As used in the bill, a “public hazard” means an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.

     The bill would not require disclosure of any documents, materials, or information exempted from disclosure under the provisions of the “Patient Safety Act,” P.L.2004, c.9 (C.26:2H-12.23 et seq.) or disclosure of a court order applying the “Patient Safety Act.”  Additionally, the bill would not require disclosure of a trade secret that is not pertinent to a public hazard.  The party making the trade secret claim would have the burden of showing the claim is valid.  The court would determine the validity of the trade secret claim based on certain enumerated criteria.

     Any substantially affected person, including but not limited to representatives of news media, would have standing to contest an order, judgment, agreement, or contract that violates the provisions of the bill.  A person seeking to contest an order, judgment, agreement, or contract would be permitted to file a motion in the court that entered the order or judgment, or could bring a declaratory judgment action. 

     Upon motion and good cause shown by a party attempting to prevent disclosure of information or materials which have not previously been disclosed, including but not limited to alleged trade secrets, the court would examine the disputed information or materials in camera.  The court would be required to grant a hearing on the motion at the request of any party.  The party attempting to prevent disclosure would have the burden of proof.  If the court finds that the information or materials or portions thereof consists of information concerning a public hazard, the court would allow disclosure of the information or materials, except that disclosure would be limited to only that portion of the information or materials necessary or useful to the public regarding the public hazard.

     Additionally, the bill would provide that any portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against a public entity is void, contrary to public policy, and may not be enforced.  Any person has standing to contest such an order, judgment, agreement, or contract and would be permitted to file a motion in the court that entered the order or judgment or bring a declaratory judgment action.  The bill would require that any such document, record, contract, or agreement would be maintained in compliance with the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) and P.L.2001, c.404 (C.47:1A-5 et al.), commonly known as the “Open Public Records Act.”  Any custodian who knowingly and willfully fails to disclose and provide any such document, record, contract, or agreement would be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation. This penalty would be collected and enforced in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), and the Rules of Court governing actions for the collection of civil penalties.  The Superior Court would have jurisdiction of proceedings for the collection and enforcement of the penalty imposed under the bill.  Additionally, the bill would provide that these requirements would not apply to trade secrets, proprietary confidential business information, or other information that is confidential under State or federal law.

     A public entity that settles a claim in tort that requires the expenditure of public funds in excess of $5,000 would be required to publish notice in two newspapers of general circulation in the State or on the public entity’s Internet website within 60 days of entering into such settlement.

     The bill would provide that nothing in its provisions would be deemed to affect the requirement set forth in P.L.1989, c.336 (C.2A:82-46), or in any other law or Rule of Court, that in prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of children under N.J.S.2C:24-4, or in any action alleging an abused or neglected child under P.L.1974, c.119 (C.9:6-8.21 et seq.) or injury or illness based on sexual abuse under section 1 of P.L.1992, c.109 (C.2A:61B-1), the name, address, and identity of a victim who was under the age of 18 at the time of the alleged commission of an offense shall not appear on the indictment, complaint, or any other public record.  Additionally, nothing in the bill would be deemed to preclude or otherwise limit the provisions of the “Open Public Records Act.”

     The bill would take effect on the 60th day following enactment, except that the Administrative Office of the Courts could take such anticipatory action in advance thereof as would be necessary for the implementation of the act.

     This bill is modeled on Florida’s “Sunshine in Litigation Act,” Fla. Stat. s.69.081.