Senator Herb Kohl (D-Wis.) has introduced the “Sunshine in Litigation Act of 2011” (S. 623) to restrict the circumstances under which federal courts enter protective orders or seal cases and settlements in civil actions “in which the pleadings state facts that are relevant to the protection of public health or safety.” The proposed measure would require courts to make certain findings before entering such orders and would impose the burden of proof in obtaining these orders on the proponent.

Among other matters, courts would be required to balance “the public interest in the disclosure of past, present, or potential health or safety hazards” with “a specific and substantial interest in maintaining the confidentiality of the information or records in question.”

According to Kohl, “This legislation does not prohibit secrecy agreements across the board, and it does not place an undue burden on judges or on our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. The time to focus some sunshine on public hazards to prevent future harms is now.” Introduced on March 17, 2011, the bill was referred to the Committee on the Judiciary. See Senator Herb Kohl Press Release, March 17, 2011.