{"id":527,"date":"2023-02-22T16:01:51","date_gmt":"2023-02-22T20:01:51","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=527"},"modified":"2023-02-22T16:01:51","modified_gmt":"2023-02-22T20:01:51","slug":"peta-open-records-case-takes-an-interesting-turn","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2023\/02\/22\/peta-open-records-case-takes-an-interesting-turn\/","title":{"rendered":"PETA Open Records Case Takes an Interesting Turn"},"content":{"rendered":"

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\u2019s Institutional Animal Care and Use Committee (IACUC).\u00a0 The records request had been submitted by animal rights organization, People for the Ethical Treatment of Animals (PETA).\u00a0 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.\u00a0 Sullivan v. University of Washington<\/em>, No. 22-35338 (9th Cir. Feb. 17, 2023)<\/a>.<\/p>\n

Like other institutions engaged in animal research that are subject to the federal Animal Welfare Act, the University of Washington maintains an IACUC.\u00a0 The IACUC\u2019s purpose is to ensure that the research facility complies with the AWA.\u00a0 Although IACUC proceedings are public, most members of the University\u2019s IACUC serve anonymously.\u00a0 This is because, as the record in the district court showed, IACUC members often encounter \u201cthreats, harassment, or reprisal\u201d from those who oppose the use of animals in research.\u00a0 This has included assertions that researchers are \u201csadistic\u201d and comparisons of \u201cthe university and IACUC to Auschwitz and Nazis.\u201d\u00a0 Sullivan v. University of Washington<\/em>, No. 2:22-cv-00204-RAJ, at 2 (W.D. Wash. Feb. 24, 2022) (Dist. Ct. Op.). \u00a0As the district court observed:<\/p>\n

Opponents of animal research have apparently picketed outside of a University of Washington researcher\u2019s private home. . . . A research opponent has said that they were \u201cgoing to do what is necessary to stop animal research.\u201d . . . . Some researchers have even had their pets kidnapped by such opponents.\u00a0 Dist. Ct. Op. at 4.<\/span><\/strong><\/p>\n

PETA sought release of current and former IACUC members\u2019 appointment letters which contain personal identifying information, i.e., \u201cnames, email addresses, titles, department affiliations and more.\u201d\u00a0 Dist. Ct. Op. at 2.\u00a0 The University gave notice that it would release the information, absent a court order.\u00a0 The IACUC members thereafter sued the University, seeking injunctive relief against the records release \u2013 relief that the University did not contest.\u00a0 The district court enjoined the records release, and PETA, which had intervened in the case, appealed.<\/p>\n

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.\u00a0 The panel disagreed with the district court that this argument raised a serious issue on the merits that would support a preliminary injunction.\u00a0 As the panel explained:<\/p>\n

[B]ecause the Committee members\u2019 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. \u00a0But the letters of appointment relate to the Committee members\u2019 service on an official committee, and such an activity is not protected by the right of expressive association. \u00a0Therefore, the University\u2019s disclosure of the Committee members\u2019 letters of appointment pursuant to the [Public Records Act] would not impermissibly burden any First Amendment right of expressive association.\u00a0 Panel Op. at 16-17.<\/span><\/strong><\/p>\n

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.\u00a0 Panel Op. at 17 n.7.<\/p>\n

A concurring opinion by District Judge Sidney A. Fitzwater, sitting by designation, underscored the limited nature of the panel\u2019s 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:<\/p>\n

[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 \u201cprefer to remain anonymous because of concerns about their personal safety and the safety of their families and pets if their names are released.\u201d \u00a0When it comes to organizations like PETA, these concerns may be well-founded. \u00a0See, e.g<\/em>., Richard L. Cupp, Jr., Considering the Private Animal and Damages<\/em>, 98 Wash. U. L. Rev. 1313, 1340 (2021) (PETA \u201cis open about using \u2018controversial tactics\u2019 to gain media attention\u201d). \u00a0Nothing 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.\u00a0 Nothing in the panel opinion holds to the contrary.\u00a0 Concurring Op. at 17-18.<\/span><\/strong><\/p>\n

PETA may have secured a short term battle victory, but it remains to be seen if it will win this war.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s Institutional Animal Care and Use Committee (IACUC).\u00a0 The records request had been submitted … <\/p>\n

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