Unfortunately, according to a U.S. District Court judge in Maryland, the answer to that question is yes.
The saferproducts.gov database allows for consumers to register concerns or complaints about safety issues with the items they purchase. It’s modeled after the similar database operated by the National Highway Traffic Safety Administration for more than a decade.
Consumer complaints are not published directly to the database after the CPSC receives them. Rather, manufacturers are first given the opportunity to respond and dispute if they desire.
So at some point in the not-so-distant past, a company that makes a product that does something (or maybe not; it’s a little vague) claimed that some statement (or statements) in a consumer-filed complaint were materially inaccurate.
What followed was some back and forth between the CPSC and “Company Doe” that first resulted in redaction of the supposedly inaccurate material, and then a third version, all of which are black rectangles of redaction in the court documents, before the company decided to file a lawsuit against the agency and its chair, Inez Tenenbaum.
Consumers Union, along with Public Citizen and the Consumer Federation of America, had filed a request to have the details of the case unsealed, believing that businesses should not be able to litigate safety-related complaints behind a shield of anonymity.
“Adjudicating this first-ever challenge to the consumer product safety database in secret, based on secret evidence, and with a secret plaintiff, is at odds with the First Amendment and our tradition of open judicial proceedings,” said Scott Michelman, the Public Citizen attorney representing the three organizations. “The public has a strong interest in the outcome of this lawsuit and a correspondingly strong right to learn who is involved and the factual basis for the court’s decision to exempt a product report from the database.”
Rachel Weintraub, director of product safety and senior counsel for Consumer Federation of America, says that allowing the plaintiff to not only be anonymous, but to hide all relevant details of the case does a disservice to the public.
“The court’s seal prevents the public from assessing the court’s reasoning, and understanding its impact on the integrity of the CPSC database,” explains Weintraub.
Right now, even the consumer groups’ objection to the seal remains under seal.
But this fight is far from over, with both the CPSC and the consumer groups planning their appeals.
“The court wrongly assumed that whatever interest the company had in avoiding publication in the database justified keeping the public from learning about this dispute,” said Michelman of Public Citizen. “But courts around the country have long recognized that the public has a First Amendment right to access court proceedings.”