Abortion Foe Takes Fight for Records to 9th Circuit

SEATTLE (CN) – Anti-abortion activist David Daleiden asked the Ninth Circuit to void a lower court’s order blocking his access to public information about the University of Washington’s Birth Defects Research Laboratory, arguing the order is too broad and will gut the Public Records Act.

Daleiden, founder of the anti-abortion Center for Medical Progress, made headlines in 2015 by releasing undercover videos filmed while posing as a potential buyer of fetal tissue at a Planned Parenthood in Houston.

Last year, Daleiden filed a public-records request with the University of Washington for documents about the purchase of human fetal tissue, organs and cells at the laboratory, and for communications between the research lab and clinics that provide abortion services in Washington state and Idaho – naming certain employees at the clinics.

Before the information was released, eight Doe plaintiffs filed a putative class action against Daleiden and the University of Washington seeking to redact their personal information from Daleiden’s request to protect their safety and privacy.

The plaintiffs include three employees of the University of Washington, employees of three Washington hospitals, a Planned Parenthood employee and a former Planned Parenthood employee.

U.S. District Judge James Robart granted a temporary injunction in November 2016, prohibiting the university from releasing documents without first redacting all personally identifying information including phone numbers, email addresses and job titles and all “information from which a person’s identity could be derived with reasonable certainty,” according to the order.

Daleiden’s attorneys attacked the order as too broad in a hearing before a three-judge Ninth Circuit panel on Thursday.

“All information can be personally identifying,” Daleiden’s attorney Peter Breen, with the Thomas More Society, said. “In theory, you can go on the internet and connect the dots.”

Breen said all of the documents requested are public and involve “taxpayer-funded work.”

Names and personal contact information were not part of the request, Breen said, but job titles and names and contact information for research companies are not personal information.

“This sort of information is not the kind that is ever restricted,” Breen said.

If the order stands, it would “gut the Public Records Act, not just in Washington, but in every state,” Michele Earl-Hubbard with Washington Coalition for Open Government, who filed an amicus brief in support of Daleiden, argued.

“If you start telling the government they shouldn’t release documents that might identify people, then they will never release anything.”

The panel grilled attorney Janet Chung, representing the Doe plaintiffs, about why her clients are entitled to exemption from the Public Records Act.

“It’s beyond me, very hard to understand, why providing fetal tissue should be protected by the First Amendment,” Circuit Judge A. Wallace Tashima said.

Tashima wanted to know why a proposed class of approximately 500 people seeking redaction of their personal information is protected.

“Are you saying all the Does are engaged in protected research?” he asked.

“That’s right,” Chung replied.

Tashima seemed doubtful and wanted to know how the Robart determined the people needed First Amendment protection.

“He should have addressed it before issuing an injunction,” Tashima said.

Circuit Judge M. Margaret McKeown continued the questioning and asked if “anybody who touches fetal tissue – secretaries, mail clerks” could be considered involved in protected research.

Chung said they could because they’re all related to lab research and could be subjected to threats and harassment if their personal information is released.

“Research has clearly been shown to be a protected activity and it would be chilled,” Chung said.

Chung said the “deceptively edited videos” Daleiden and the Center for Medical Progress released caused “three times more acts of violence” toward people associated with abortion services. She said the personal safety of her clients is at risk.

“The Constitution will prevail over the Public Records Act,” she said.

Circuit Judge Jacqueline Nguyen also sat on the panel.

The case is currently stayed in the Western District of Washington pending the outcome of the appeal.


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