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Free Speech

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

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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.

NEXT: What Is Church Autonomy?

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  1. A direct action patient movement is needed. They would bring it to all the enemies of clinical care, animal rights people, insurance companies, organized medicine, the medmal plaintiff bar, quack government regulators, the FDA, makers of electronic records, drug companies. Make life as miserable for them as they make it for patients.

    1. Animal rights people should volunteer to have new surgeons learn the organ transplant business on them instead of on shelter dogs who will be killed anyway.

      1. Release of information would not be in dispute if the lawyer did his job. If you release the most intimate data, and someone uses that to harass, threaten, blackmail, intimidate, why not prosecute or sue the person misusing the information. If you get rid of the lawyer protector of criminals, you should be able to drop a $20 bill on the sidewalk, return 3 weeks later, and it should be there untouched. There should be zero crime, and 100% trust between people.

        We have to get rid of the totally failed lawyer dipshit. Replace this dumbass with an app. Within 24 hours, it finds the harasser and takes $1000 from its assets. If no assets can be found, a robot applies the lash once for every instance of harassment. 100% enforcement, immediately, and no errors. If an error is made, another app, the appeals app, docks the owner of the apps, the legislature for its mistakes.

  2. "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."

    Did I miss the part where the convictions and imprisonment of the kidnappers and threateners was reported? Were their names and addresses published as public records from the trials?

  3. I like to imagine a world of karma, where doxxing the members of the oversight committee means no volunteers for the committee, and no amount of realistic pay can induce anyone to take it as a paid job, which means no committee, which means animal research continues without oversight instead of being forbidden.

    1. Short term it would mean no research because you can't spend grant money or get published without IACUC review.

      1. No shit sherlock. That's why I said "I like to imagine ...".

  4. I did animal research in California. What always amazed me in the review process was that there was no meaningful scale.

    An experiment that is ethical to perform on 1 animal, is ethical to perform on 4,000 animals.

    It wasn't a justification to say, "I only need 4 mice for this experiment." On the other hand, I quickly learned that I might as well apply for 4,000 mice so I didn't have to go back through the process any time soon.

    1. One dead mouse is a tragedy. A million dead mice is a New Drug Application.

      1. Or a vibrant new shade of indigo for my body art.

  5. If meeting are held on zoom and board members are University of Washington, I'd think it would not be all that difficult identifying them. Start posting their pics and ask for people to identify. Probably less effort than litigating.

  6. Animal rights nutjobs don't do themselves (or transparency advocates more generally) any favors with their behavior, but this is deeply problematic. Forget about their comments being protected by the First Amendment, these people have and are exercising GOVERNMENT AUTHORITY. The people don't get to know who they are? Good grief.

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