The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 yesterday a federal district court in Washington held that the First Amendment limits public records requests for certain information, when revealing that information unduly exposes people engaged in First Amendment protection to risk of harassment. The court had expressed similar views in its decision granting a preliminary injunction against release of the records, which I blogged about last fall; but I thought I'd pass along the most recent decision, granting a permanent injunction (some paragraph breaks added):
Plaintiffs are erotic dancers and managers at Dreamgirls at Fox's, a Parkland, Washington erotic dance studio. Erotic dancers and managers are required to be licensed under local law.
Defendant David Van Vleet, a private citizen, filed a Public Records Act (PRA) disclosure request with Defendant Pierce County Auditor Julie Anderson seeking the Dreamgirls' employees' personal information, including true names, birthdates, and photographs. [Text moved: [Van Vleet] claimed that he had a First Amendment right to access the information so that he could pray for the Plaintiffs, by name.] Anderson informed the Plaintiffs of Van Vleet's request and of her intention to disclose their information to him unless Plaintiffs obtained an injunction.
Plaintiffs sued seeking to temporarily and permanently enjoin the disclosure—not just to Van Vleet, but to any member of the general public. They argue that the PRA's privacy exception is not broad enough to prevent that disclosure—as Anderson apparently determined—but that disclosure would violate their constitutional rights to privacy and free expression. . . . They claim that disclosure would lead to stalking, harassment, blackmail, and injury to relationships and future employment prospects.
The PRA is a tool to enable citizens to monitor their government. It is not a mechanism for them to examine, exploit, or endanger each other: "[t]he primary purpose of the public records act is to provide broad access to public records to ensure government accountability." The PRA was never intended to facilitate spying or stalking, or to enable a host of other nefarious goals. Thus, the PRA generally requires the disclosure of governmental documents and records to citizens requesting them. It also recognizes that some information should not subject to public disclosure, and provides for redaction in some cases:
Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (6) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by this chapter, an agency shall delete identifying details in a manner consistent with this chapter[.]
The parties agree that PRA has no express exemption protecting erotic dancers' information from disclosure. The privacy right it recognizes precludes disclosure if information about the person: (1) would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. RCW [Revised Code of Washington] §§ 42.56.050.
Plaintiffs argue that the PRA's "other statute" reference does not include the Constitution, because the Constitution is not a statute, and because the PRA elsewhere explains that all exemptions must be narrowly construed in order to ensure maximal disclosure and governmental transparency: "This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected." RCW §§ 42.56.030. The Plaintiffs claim that because the disclosure of their information that would violate their First Amendment rights, and the PRA does not prohibit that disclosure, it is unconstitutional as applied to them.
The State argues that the PRA's deference to "other statute[s]" is a "catch all" saving clause, which does not require a disclosure that would violate the Constitution:
If the requested records are constitutionally protected from public disclosure, that protection exists without any need of statutory permission, and may constitute an exemption under the PRA even if not implemented through an explicit statutory exemption. In other words, it is not necessary to read the PRA in conflict with the Constitution when the Act itself recognizes and respects other laws (including constitutional provisions) that mandate privacy or confidentiality.
This interpretation is also consistent with the canon of constitutional avoidance: when a statute is susceptible to more than one construction, the interpretation that does not violate the constitution is favored.
The State is correct. The PRA, by design, cannot violate the Constitution, and constitutional protections (such as freedom of expression) are necessarily incorporated as exemptions, just like any other express exemption enumerated in the PRA. Plaintiffs' claim that the PRA is unconstitutional as applied because it cannot accommodate a constitutional limitation on disclosure is wrong, and is rejected. . . .
The issue, then, is whether the Constitution protects Plaintiffs' information, exempting it from disclosure under the PRA. Plaintiffs argue that, as workers in an erotic dance studio, they are engaging in a form of protected First Amendment expression, and that disclosure of their information would have an unconstitutional chilling effect on that expression.
It is well-established that erotic dancing is a protected form of expression under the First Amendment: "Courts have considered topless dancing to be expression, subject to constitutional protection within the free speech and press guarantees of the First and Fourteenth Amendments." The Ninth Circuit has emphasized that a county's public disclosure of erotic dance employees' personal information has an unconstitutional chilling effect on that protected form of expression:
The First Amendment does not permit the County to put employees of adult entertainment establishments to the choice of applying for a permit to engage in protected expression in circumstances where they expose themselves to unwelcome harassment from aggressive suitors and overzealous opponents of such activity, or choosing not to engage in such activity out of concern for their personal safety. The chilling effect on those wishing to engage in First Amendment activity is obvious.
The disclosure of Plaintiffs' information here would have a similarly unconstitutional chilling effect. As erotic dance studio employees, Plaintiffs are uniquely vulnerable to harassment, shaming, stalking, or worse.
Plaintiffs have express concern regarding the enhanced risk that disclosure of their real names and other licensing information might bring. They plausibly claim that they would not have engaged in their profession had they known that their erotic license information could be so easily disclosed to any member of the public. . . . Thus, the Plaintiffs' information is protected under the First Amendment, and it is exempted from disclosure under the PRA. . . .
Anderson's determination that the PRA required disclosure of Plaintiff's licensing information was in error. Defendants Pierce County and Andersen are PERMANENTLY ENJOINED from disclosing the information requested to Van Vleet due to the protected nature of Plaintiffs' license information under the First Amendment, and the PRA's recognition of that protection. . . .
As I noted before, this case might also 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—such as the 7th 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.