First Amendment vs. freedom of information law

|The Volokh Conspiracy |

Sometimes the First Amendment guarantees access to public records (generally limited to court records). Often Freedom of Information Acts and Public Records Acts are seen as fulfilling broader First Amendment values, by facilitating speech about how the government operates. But in Thursday's Roe v. Anderson (W.D. Wash. Oct. 23, 2014), a federal district judge relied on the First Amendment to block a state public records request.

Washington law requires "erotic dancers" to get licenses, and the Washington Public Records Act apparently mandates the release of licenses generally, including these licenses. But the dancers, the district judge held, "have raised serious questions regarding whether" this violates their First Amendment rights, because revealing their names and other personal information can expose them to "harassment and threats to their physical safety." (Compare Doe v. Reed (2010), which applied First Amendment scrutiny to disclosure of the names of petition signers, though held that, given the government interests supporting such disclosure, the disclosure was indeed constitutional.) According to the Steve Maynard (Tacoma News Tribune), the man who requested the names said "he was curious and he wants to pray for the strippers. 'I would pray for those dancers by name,' David Van Vleet said after the hearing. 'I'm a Christian…. We have a right to pray for people.'"

I should note that this case might be relied on by analogy in Second Amendment cases, in situations where people try to use public records laws to get the names of registered gun owners, or of registered holders of gun carry licenses. (The Supreme Court said, in D.C. v. Heller (2008), that there is no constitutional right to concealed carry, but some courts—the Seventh and Ninth Circuit and the Illinois Supreme Court—have held that there is a constitutional right to some form of carry, and in some states a license is required for any sort of carrying.) It's always uncertain, of course, how much courts will accept such analogies.

In any event, here are some excerpts from the opinion:

I. FINDINGS OF FACT …

10. Under PCC §§ 5.14.100 and 5.14.110, "managers" and "dancers" at an "erotic dance studio" are required to apply for and maintain managers and dancers licenses that are issued by the Auditor. Under PCC §§ 5.14.080 and 5.14.090, these licenses expire and are renewed on an annual basis.

11. Dancers at Dreamgirls at Fox's identify themselves to patrons by a pseudonym commonly known as a "stage name". The purpose of the stage name is to maintain the dancers' privacy and to protect them from stalking, harassment, discrimination, public embarrassment, and violence when they are outside the club….

15. Defendants Anderson and Pierce County are subject to the requirements of the Washington Public Records Act, (hereinafter "PRA") ….

16. The manager and dancer licenses issued and maintained by Defendant Anderson are "public records" as defined RCW §§ 42.17.020, subsections (36) and (42).

17. "Agencies" such as the Auditor's Office and Defendant Pierce County are required by the PRA to disclose public records upon request to anyone making the request and disclosure of the records is mandatory. The only public records protected from disclosure are those specifically mentioned in a statutory exemption….

18…. "Agencies" are not permitted to inquire as to the purpose for which the record is sought.

19. The Court finds that there are no statutory exemptions in the PRA applicable to dancer and manager licenses issued and maintained pursuant to Chapter 5.14 of the Pierce County Code. The Auditor is required by the PRA to promptly disclose the licenses to anyone requesting them regardless of the requestor's intended use once the licenses are obtained.

20. The Court finds that information contained on managers' and dancers' license, which includes the license holder's true name and date of birth, can be used to obtain additional personal information about that that individual including their home address, telephone number and the names of their friends and family members. Much of this information is contained in public data bases that can be accessed via the Internet. Once the information contained on managers' and dancers' license is released to Defendant VanVleet, it could be used by him for any number of purposes and it could be widely disseminated to others who could use the information to harass and threaten individual mangers and dancers….

24. Plaintiffs Jane Roe 1, Jane Roe 2 and others similarly situated may discontinue their employment, may choose to work elsewhere, or may choose not to renew their licenses for fear of having their personal information disclosed….

27. On or September 22, 2014, the Pierce County Auditors Office sent written notice to all licensed managers and dancers at Dreamgirls at Fox's informing them of Defendant Van Vleet's public disclosure request and informing them that the documents sought by Van Vleet would disclosed to him unless a court order was obtained on or before October 17, 2014.

II. CONCLUSIONS OF LAW …

2. At all times material hereto, the Plaintiffs have been engaged and continue to be engaged in activities protected by the First Amendment to the United States Constitution.

3. Plaintiffs have raised serious questions regarding whether their First Amendment freedoms and their right to informational privacy would be violated by the disclosure of the requested records in their amended complaint.

4. Plaintiffs are likely to suffer irreparable injury unless a preliminary injunction is granted by the Court. Plaintiffs will suffer loss of their First Amendment rights and the fruits of the litigation will be irretrievably lost. Plaintiffs may suffer harassment and threats to their physical safety once their private information is disclosed.

5. The balance of the equities tip sharply in the Plaintiffs favor. Plaintiffs are faced with the loss of their First Amendment rights, deprivation of their right of privacy, and threats to their physical safety if their private information is disclosed. Defendants Anderson and Pierce County already have access to the information needed for maintaining the licensing scheme and will not be harmed if public disclosure is restrained pending trial on the merits. Defendant Van Vleet has no legitimate interest in the information sought by the public disclosure request and will not be harmed if public disclosure is restrained pending trial on the merits.

6. The Public has an interest in the protection of Plaintiffs' First Amendment and privacy rights and the public interest is served by issuance of a preliminary injunction.

7. There is a likelihood of repetition unless a preliminary injunction is granted with respect to future similar requests.

ORDER …

Defendants Anderson and Pierce County are hereby enjoined from disclosing manager and dancer licenses, manager and dancer license applications, or any other personal identifying information of managers and dancers obtained pursuant to Chapter 5.14 of the Pierce County Code to Defendant David Allen Van Vleet or any member of the public pending final resolution of this matter in the District Court. The bond previously posted by the Plaintiffs shall remain the same.

Thanks to Aaron Caplan for the pointer.

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