Free Speech

No HIPAA for Hippos (or, Seals and Animal Welfare)

"There is no veterinarian privilege, no animal equivalent of the Health Insurance Portability and Accountability Act, and no case law suggesting that humans and animals are entitled to the same level of privacy."

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From Animal Legal Defense Fund v. Olympic Game Farm, Inc., decided Friday by Judge Robert Lasnik (W.D. Wash.), and dealing with when documents can be sealed from public access:

"There is a strong presumption of public access to the court's files. A party's unilateral designation of a document as confidential under a protective order does not, in and of itself, justify a seal ….. Where a document has been offered in support of or opposition to a dispositive motion, the party requesting that the record be sealed must articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process…."

OGF has not satisfied its burden, having failed to provide the Court with anything other than its fear that production of the deposition transcript, veterinary records, or photographs will embarrass them or benefit plaintiff in its pursuit of this litigation. The actual conditions at OGF are the critical issue in this lawsuit, and the public's understanding of the Court's dispositive rulings will turn on their awareness of those conditions.

The Court is not bound by a non-disclosure agreement signed decades ago …. With regards to the veterinary records, the fact that veterinarians treat their records as confidential does not shield them from discovery or public disclosure.

There is no veterinarian privilege, no animal equivalent of the Health Insurance Portability and Accountability Act, and no case law suggesting that humans and animals are entitled to the same level of privacy. Defendants' objection to the public disclosure of photographs taken by plaintiff during a site visit are, for the most part, too vague and speculative to justify the public's exclusion. In fact, OGF asserts that it "is not concerned that the public will see the images…." Instead, OGF suggests that unidentified third parties who are somehow affiliated with plaintiff will use the photos for commercial purposes, namely to solicit funds with which to pursue this litigation. OGF does not, however, explain how such a use would be improper.

Plaintiff, seemingly in good faith, believes that OGF is harming the endangered species in its care. If the photographs support that narrative and are not used "to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets," the balance of interests favors public access.

Finally, OGF relies heavily on the Honorable Ronald B. Leighton's July 31, 2020, order denying plaintiff's motion to lift the confidentiality designation on the veterinary records and the photographs. At the time, there were no dispositive motions pending: in fact, there were no motions pending at all. Judge Leighton's order was therefore based on a different analysis and did not set forth compelling reasons or the factual basis for its ruling as is required here.

The court ordered the unsealing of all the relevant documents except "OGF's profit and loss statements."