On February 17, 2023, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed a preliminary injunction that had restrained the University of Washington from releasing records containing personal identifying information of current and former members of the University’s Institutional Animal Care and Use Committee (IACUC). The records request had been submitted by animal rights organization, People for the Ethical Treatment of Animals (PETA). The appellate panel ruled that the district court erred in determining that the IACUC members had raised a serious issue that their First Amendment right of association would be infringed by release of the records, but did not reach the other arguments raised by the IACUC members which presumably will be addressed on remand. Sullivan v. University of Washington, No. 22-35338 (9th Cir. Feb. 17, 2023).
Like other institutions engaged in animal research that are subject to the federal Animal Welfare Act, the University of Washington maintains an IACUC. The IACUC’s purpose is to ensure that the research facility complies with the AWA. Although IACUC proceedings are public, most members of the University’s IACUC serve anonymously. This is because, as the record in the district court showed, IACUC members often encounter “threats, harassment, or reprisal” from those who oppose the use of animals in research. This has included assertions that researchers are “sadistic” and comparisons of “the university and IACUC to Auschwitz and Nazis.” Sullivan v. University of Washington, No. 2:22-cv-00204-RAJ, at 2 (W.D. Wash. Feb. 24, 2022) (Dist. Ct. Op.). As the district court observed:
Opponents of animal research have apparently picketed outside of a University of Washington researcher’s private home. . . . A research opponent has said that they were “going to do what is necessary to stop animal research.” . . . . Some researchers have even had their pets kidnapped by such opponents. Dist. Ct. Op. at 4.
PETA sought release of current and former IACUC members’ appointment letters which contain personal identifying information, i.e., “names, email addresses, titles, department affiliations and more.” Dist. Ct. Op. at 2. The University gave notice that it would release the information, absent a court order. The IACUC members thereafter sued the University, seeking injunctive relief against the records release – relief that the University did not contest. The district court enjoined the records release, and PETA, which had intervened in the case, appealed.
On appeal, the Ninth Circuit limited its focus to the single legal argument made by the IACUC members that release of the records would infringe their First Amendment right of association. The panel disagreed with the district court that this argument raised a serious issue on the merits that would support a preliminary injunction. As the panel explained:
[B]ecause the Committee members’ association is pursuant to their official duties and not any private expressive activities, it is not protected by the First Amendment right of expressive association. The Committee members may be engaged as individuals in other activities that are expressive in nature. But the letters of appointment relate to the Committee members’ service on an official committee, and such an activity is not protected by the right of expressive association. Therefore, the University’s disclosure of the Committee members’ letters of appointment pursuant to the [Public Records Act] would not impermissibly burden any First Amendment right of expressive association. Panel Op. at 16-17.
However, the panel opinion expressly declined to reach the arguments that PETA had made trying to minimize the threats of harassment that were documented in the record. Panel Op. at 17 n.7.
A concurring opinion by District Judge Sidney A. Fitzwater, sitting by designation, underscored the limited nature of the panel’s ruling, the documented threat that the release of the records posed to the IACUC members, and the flexibility that the University retained in ultimately disposing of the records request:
[A]s the panel opinion also recognizes, except for the Committee chair and the lead veterinarian, who have made their identities known, all other Committee members “prefer to remain anonymous because of concerns about their personal safety and the safety of their families and pets if their names are released.” When it comes to organizations like PETA, these concerns may be well-founded. See, e.g., Richard L. Cupp, Jr., Considering the Private Animal and Damages, 98 Wash. U. L. Rev. 1313, 1340 (2021) (PETA “is open about using ‘controversial tactics’ to gain media attention”). Nothing in the panel opinion, however, holds that the State of Washington is obligated through its Public Records Act to require disclosures of personal information that may subject Committee members and their families and pets to threats to their personal safety. . . . The State of Washington retains the authority to adopt other exemptions aimed at curbing required disclosures of personal information that could place at risk members of committees such as this one, or their families or property. Nothing in the panel opinion holds to the contrary. Concurring Op. at 17-18.
PETA may have secured a short term battle victory, but it remains to be seen if it will win this war.