An article in a Texas newspaper suggests safety information in the West Fertilizer explosion may be lost forever because of confidentiality agreements approved by the judge handling lawsuits in the case.
The Dallas News says the agreements allow both sides in the lawsuits to label virtually all information as confidential.
According to the paper, information that could be kept secret includes more details on:
- safety testing of the fertilizer that exploded
- what the city of West, Texas, knew about the plant’s dangers, and
- how the city planned for emergencies, particularly those that might involve the fertilizer plant.
The explosion at the plant killed 15 people and injured hundreds. It also caused considerable property damage in the surrounding area.
Agreements of this sort aren’t unusual in cases like these. But the News quotes some experts who have concerns about this particular one.
Richard Zitrin, a law professor at the University of California Hastings and an expert on court secrecy, says the agreement in this case “defines ‘confidential’ as anything the parties say is confidential … which is not a definition at all.”
Under Texas law, all confidential documents have to be destroyed or returned to their original owners within 90 days of a judgment or settlement.
That sets up this potential scenario: If another catastrophic explosion of the same type of fertilizer occurs, attorneys investigating the subsequent case wouldn’t have the information from West to draw from.
Zitrin says this also sets up “the greater potential of future harm.”
Wouldn’t some of this information come out in a public trial? Sure, if a trial actually happens. It’s often the case that lawsuits of this type are settled without coming to trial.
As an example of a case in which this has caused potential harm, the News cites the recent case of faulty ignition switches in GM cars. Attorneys say secrecy agreements in lawsuits curbed the release of information about the cars which could have resulted in earlier discovery of the problem.
Why might a judge approve such a broad confidentiality agreement? To keep things moving in the courts. Judges would have to take a considerable amount of time if they had to decide what documents to approve as confidential.
This may take some time to unfold. The judge has consolidated 15 lawsuits against the parent company of West Fertilizer and other entities into one case. The City of West and hundreds of individuals and businesses are suing the company.