Jane and John Does 1-10 v. David Daleiden
This case concerns the limits that the constitutional rights of informational privacy and free association impose on the disclosure of state records under the Washington Public Records Act ("PRA"). The anonymous plaintiffs filed suit to block release of their names and other identifying information on records responsive to the defendant's PRA request. Defendant Daleiden had sought disclosure of records from the University of Washington related to fetal tissue research, including communications between the University and medical clinics (including Planned Parenthood of Greater Washington and North Idaho). The court granted a preliminary injunction in November 2016 prohibiting the University from releasing the unredacted records that included plaintiffs' personally identifiable information. Defendant Daleidein filed an appeal to the Ninth Circuit.
On August 14, 2017, the U.S. Court of Appeals for the Ninth Circuit reversed the district court's decision but sent the case back to the lower court "to enter the necessary findings of fact and conclusions of law supporting injunctive relief." The appeals court underscored that “there may be a basis for redaction” of personal information in government records “where disclosure would likely result in threats, harassment, and violence.” The court also kept the lower court's injunction in place for 120 days.
Factual and Procedural Background
Defendant David Daleiden issued a request to the University of Washington under the state's PRA on February 9, 2016, seeking to "inspect or obtain copies of all documents that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at the [UW] Birth Defects Research Laboratory from 2010 to present." The requests sought various categories of documents, including communications between the University or its Birth Defects Research Laboratory, on the one hand, and Cedar River Clinics, Planned Parenthood of Greater Washington and North Idaho, or certain individuals or employees of Cedar River and Planned Parenthood, on the other hand. The request specifically named eight such individuals.
The University notified plaintiffs on July 21, 2016, that absent a court order issued by August 4, 2016, the University would release responsive records to Mr. Daleiden without redaction the following day. On August 3, 2016, the plaintiffs filed a complaint on behalf of a putative class action seeking to enjoin the University from releasing the unredacted documents in response to the PRA request. The plaintiffs argued that the unredacted documents should not be released because they include personally identifying information such as direct work phone numbers, work emails, personal cell phone numbers, and other information. The plaintiffs sought a temporary restraining order ("TRO") and a preliminary injunction against disclosure of the requested documents.
The court issued a TRO on August 17, 2016, prohibiting the University "from releasing, altering, or disposing of the requested documents or disclosing the personal identifying information of Plaintiffs pending further order." The court subsequently granted the plaintiffs' motion for a preliminary injunction on November 15, 2016. Defendant Daleiden filed a notice of appeal on December 15, 2016.
Following the filing of the complaint and injunction motions by the plaintiffs, Defendant Daleiden argued that the case should be dismissed and the injunctions denied on jurisdictional grounds. Specifically, the defendant argued that the Eleventh Amendment barred suit against the University of Washington and that the plaintiffs claims did not arise under federal law as required to invoke federal question jurisdiction under 28 U.S.C. § 1331. The State of Washington, through counsel, waived Eleventh Amendment immunity and the court accordingly dismissed Defendant Daleiden's objection on that ground. However, the court granted the motion to dismiss, in part, for lack of a federal question. The court granted the plaintiffs leave to file an amended complaint raising a federal question for a violation of their civil rights under 42 U.S.C. § 1983, which they did on October 18, 2016, naming as an additional defendant the state official responsible for PRA compliance at the University of Washington.
The court went on to consider the likelihood that plaintiffs would be successful on the merits of their constitutional and statutory claims. The PRA contains a "catch-all" exemption that incorporates constitutional protections against disclosure. The plaintiffs in this case asserted constitutional privacy and free association claims that they argued should prohibit disclosure of their personally identifiable information in the University records. Plaintiffs argued that disclosure would have a chilling effect on their First Amendment protected right to free association. The court agreed, citing a similar case recently decided by the U.S. Court of Appeals for the Tenth Circuit, Planned Parenthood Association of Utah v. Herbert, 828 F.3d 1245 (10th Cir. 2016). The court also held that "research activity" is a form of expression protected within the ambit of the First Amendment. The court also found plaintiffs had established that disclosure of their personally identifying information would render them "uniquely vulnerable to harassment, shaming, stalking, or worse" as needed to meet the Supreme Court's test in John Doe No. 1 v. Reed, 561 U.S. 186, 200 (2010). The court held that disclosure would violate plaintiffs constitutional rights of privacy and association.
EPIC has a particular interest in protecting individuals' rights to informational privacy and to free association. EPIC has filed several amicus briefs in the past in cases concerning the right to informational privacy and the importance of limiting disclosure of personally identifiable information. In addition, EPIC is dedicated to government transparency and the proper application of state and federal open government laws. As an open government advocate, EPIC recognizes that rules limiting the disclosure of personally identifiable information in government records promote transparency while simultaneously protecting individual rights to privacy and free association. In those cases where courts are asked to consider how to reconcile competing privacy and open government claims, EPIC urges the adoption of policies and techniques that safeguard both interests
EPIC Amicus Briefs on the Right to Informational Privacy
- NASA v. Nelson, 562 U.S. 134 (2011) (arguing that the right to informational privacy is well recognized and that the Privacy Act would not sufficiently protect information that NASA sought to collect about JPL employees)
- Doe v. Luzerne County, PA, 660 F.3d 169 (3d Cir. 2011) (arguing that disclosure of digital video and images of the plaintiff's body implicated the right to informational privacy and constitute personally identifiable information giving rise to constitutional privacy interests)
- Greidinger v. Davis, 998 F.2d 1344 (4th Cir. 1993) (CPSR filed as amicus in case concerning state requirement that voters submit their SSN upon registration)
EPIC Amicus Briefs in Cases Concerning Information Privacy and State Open Government Laws
- FCC v. AT&T, 562 U.S. 397 (2011) (arguing that personal privacy protections under the federal open government laws were not intended to protect corporations)
- ATF v. Chicago, vacating judgment and remanding for further consideration, 123 S. Ct. 1352 (2003) (arguing that records can be disclosed in electronic format without revealing personally identifiable information)
- Chicago Tribune Co. v. Univ. of Illinois Bd. of Trustees, 680 F.3d 1001 (7th Cir. 2012) (arguing that the federal student privacy law barred disclosure of certain educational records under the state open government law)
- Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) (arguing that the state should limit disclosure of SSNs under the open records law, but that publishing of those records by privacy advocate seeking to draw attention to the state's practices is protected by the First Amendment)
United States Court of Appeals for the Ninth Circuit, No. 16-36038
- Brief of Defendant-Appellant Daleiden (Jan. 26, 2017)
- Amici in support of Defendant-Appellant Daleiden:
- Brief of Defendants-Appellees University of Washington and Perry Tapper (Mar. 9, 2017)
- Response Brief of Plaintiffs-Appellees (Mar. 9, 2017)
- Oral Argument (July 13, 2017)
- Order (Aug. 14, 2017)
United States District Court for the Western District of Washington, No. 2:16-cv-01212-JLR
- Order Granting Motion for a Preliminary Injunction (Nov. 15, 2016)
- Complaint - Class Action (Aug. 3, 2016)
- Mike Carter, Lawsuit Seeks to Prevent UW Fetal-tissue Clinic from Releasing Workers' Names, The Seattle Times (Aug. 4, 2016)
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by Ryan Calo, A. Michael Froomkin,