The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Public Records Law vs. First Amendment Rights of University Animal Experiment Review Committee


From a preliminary injunction decision by Judge Richard Jones (W.D. Wash.) in Sullivan v. Univ. of Washington (with PETA as intervenors; earlier coverage here):

The Institutional Animal Care and Use Committee ("IACUC") at the University of Washington monitors animal research conducted at the university. The committee "approves and monitors all proposed projects that include vertebrates or cephalopods" to "ensur[e] that animals receive the care, treatment and respect they deserve as critical components of biomedical research to find cures for diseases and conditions that afflict both humans and animals."

The IACUC hosts monthly public meetings, where members of the public may speak. Some members of the public hope to end the University of Washington's animal research outright. Their comments vary, from referring to researchers as "sadistic" to comparing the university and IACUC to Auschwitz and Nazis. On other occasions, "individuals associated with animal research" at the university have even received "harassing emails, letters and voice messages, some including threatening language." See also Dkt. # 4 ¶¶ 6-7 (picketing outside of researcher's private home, kidnapping of pets), Dkt. # 5 ¶¶ 7-8 (calling animal researchers "vile [expletive] humans" and saying "I'm going to do what is necessary to stop animal research").

Given the hostility, IACUC members are anonymous, currently "identified only by initials online and in [the committee's] publicly posted meeting minutes." Yet opponents of animal research seek to obtain certain documents from the university that would end that anonymity.

People for the Ethical Treatment of Animals ("PETA") is an organization that seeks to "expos[e] the cruelty of animal tests" to "ensure their imminent end." On June 24, 2021, a PETA representative made a request for public records under Washington's Public Records Act. Specifically, the representative requested the "appointment letters" of IACUC members for the period from January 1, 2014 to the present. Those letters contain personal identifying information of the committee members: names, email addresses, titles, department affiliations, and more….

Under the Washington State Public Records Act, RCW 42.56 ("PRA"), an agency must make all public records available for public inspection, unless the record falls within specific exemptions or "other statute which exempts or prohibits disclosure of specific information." A "public record" is defined as "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." It is undisputed that the University of Washington, as a state agency, is obligated to permit public inspection and copying of public records pursuant to the PRA, and that the requested records are "public records" as defined by the PRA.

It is also undisputed that constitutional protections may serve as exemptions to disclosure under the PRA. See Seattle Times Co. v. Serko (Wash. 2010) (holding that "[t]here is no specific exemption under the PRA that mentions the protection of an individual's constitutional fair trial rights, but courts have an independent obligation to secure such rights"). Plaintiffs assert that public disclosure of the requested records, likely to result in harassment, would violate their constitutional rights to freedom of expression and association. PETA contends that Plaintiffs have no First Amendment right of association with the University's IACUC because it is "not a private association advancing its members' efforts as private citizens to engage in speech, to petition the government for redress of grievances, or to exercise their religion." Instead, PETA argues, IACUC members are "public employees" making statements pursuant "to their official duties," and are not, as such, protected by the First Amendment.

Plaintiffs respond that under the Ninth Circuit's holding in Demers v. Austin (9th Cir. 2014), Garcetti does not apply to "speech related to scholarship or teaching" and thus is inapplicable here. In Demers, the Ninth Circuit noted that, under Garcetti, statements made by public employees "pursuant to their official duties" were not protected under the First Amendment. However, the Court continued, "teaching and academic writing are at the core of the official duties of teachers and professors. Such teaching and writing are 'a special concern of the First Amendment.'" Id. (quoting Keyishian v. Bd. of Regents of the Univ. of the State of N.Y. (1967)). The Court agrees that Garcetti does not apply here.

The Court finds that Plaintiffs do not fall squarely within the framework set forth in Demers or Garcetti. As Plaintiffs note, members of the IACUC are not serving on the committee as "employees." Membership on the IACUC is voluntary and members do not receive compensation for their involvement. Some members are not even employees of the University of Washington.

Based on this record, Plaintiffs have sufficiently shown "that there are serious questions going to the merits" of their First Amendment claim for the violation of their constitutional freedom to associate. Through their voluntary association with the IACUC, members of the committee are likely engaged in protected First Amendment activity. Disclosure of their personal information would subject them to "threats, harassment, or reprisals" that would have a chilling effect on that activity….

Based on the record, 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." During the public comment period of the IACUC meetings, some individuals have made angry and threatening comments towards members of the IACUC. Some IACUC members have even had their pets kidnapped by individuals who oppose animal research.

Such activity stifles free speech and association rights. The Court finds that irreparable harm would likely result if the information at issue were made public because loss of First Amendment freedoms "unquestionably" constitutes irreparable injury….

PETA asserts that it needs the names of the IACUC members to confirm their credentials and whether the IACUC is legally constituted. However, it appears that there is sufficient oversight to ensure the credentials and legal constitution of the committee. Indeed, multiple independent government agencies perform credential reviews, including the Office of Laboratory Animal Welfare ("OLAW") of the National Institutes of Health, the United States Department of Agriculture, and AAALAC International (formerly known as the Association for Assessment and Accreditation of Laboratory Animal Care International), a voluntary accreditation program focused on the responsible treatment of animals and science. Plaintiffs contend that over the last five years, each of the three agencies inspected the IACUC member credentials after receiving complaints from PETA and found no basis for citation.

Moreover, the fact that IACUC meetings are open to the public also diminishes the public interest in transparency. As the Court previously noted, IACUC meetings are public—indeed, they are on Zoom, allowing the public across the country to join. At those meetings, members from the public may make statements. Meeting minutes are also made public. What incremental knowledge would be gained from the "appointment letters" seems marginal. It appears that the letters would just provide personal identifying information of IACUC members, contributing little, if anything, to the public's understanding of the type of research the university conducts.

Meanwhile, the legitimate fear of reprisal tips sharply in favor of Plaintiffs. Service on IACUC is voluntary. And IACUC is integral to monitoring research projects to ensure that they comply with state and federal laws. Many IACUC members fear for their safety. This fear compromises their ability to do their job, maybe even resulting in their resignation or the deterrence of potential future members. Once released, the personal identifying information of members cannot be un-released. The Court thus finds that the balance of the equities tips sharply in Plaintiffs' favor.