Sunshine in litigation.

• Author: Shaw, Ray
• Position: Florida public safety statute

Either Florida's Sunshine in Litigation Statute,(1) F.S. [sections] 69.081 (1998) (the "Sunshine Statute"), is not widely known, or it is so clear in its intent and meaning that the courts never get much of an opportunity to interpret it. This is surprising because secrecy(2) is not the friend of an attorney representing a person injured by a hazardous product.(3) Orders, judgments, agreements, or contracts can prevent a party from obtaining information for use in litigation or from disclosing information beyond the particular litigation. If an attorney is unable to obtain information on a hazardous product, an otherwise meritorious case might not be pursued. If the dissemination of the information relating to a hazardous product is limited to the particular litigation, unsuspecting persons may continue to be exposed to the hazard.

On the other hand, forcing a company to disclose information can result in an injustice if the threat forces the settlement of an unworthy case or discloses business secrets which can then be used by a competitor to gain an unfair advantage. The legislature, in enacting the Sunshine Statute, attempted to balance the competing interests.

An Overview of the Statute

The Sunshine Statute can be divided into two parts. The first part of the statute(4) prevents "orders, judgments, agreements or contracts which have the purpose or effect of concealing a public hazard, information concerning a public hazard, or information which may be useful to the public in protecting themselves from injury which may result from the public hazard." (Emphasis supplied.) The second part of the statute(5) relates to a "settlement or resolution against the state, its agencies, or subdivisions or against any municipality or constitutionally created body or commission." (Emphasis supplied.) Any order, judgment, agreement, or contract which has the effect of concealing any settlement or resolution is declared void, contrary to public policy, and not enforceable.(6)

Public hazard is defined to mean "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."(7)

Trade secrets are protected, but only if they meet the definition set forth in F.S. [sections] 688.002 and are not "pertinent" to public hazards.(8) Proprietary confidential business information, or other information that is confidential under state or federal law, also is protected.(9)

Standing to contest an order, judgment, agreement, or contract in violation of this section is granted to a "substantially affected person,"(10) including the media, and "any person,"(11) by motion or declaratory judgment action pursuant to chapter 86.

A party attempting to prevent disclosure must file a motion with a showing of good cause. Upon this occurring, the court will examine the information in camera.

The Sunshine Statute in the Courts

Unfortunately, there are not many appellate decisions which can help in the analysis of the statute. The following cases, however, have construed the statute.

ACandS, Inc. v. Askew, et al., 595 So. 2d 895 (Fla. 1st DCA 1992), was an asbestos case. There had been a federal court protective order entered in 1980, in a case in which ACandS was a defendant. ACandS moved in the state trial court to enforce the federal protective order The trial judge denied the motion. ACandS filed for a writ of certiorari. The court denied the petition on the premise that ACandS had not demonstrated both a departure from the essential requirements of law and an injury which could not be remedied by appeal from the final order. The court did note that [sections] 69.081 was brought to the...