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Ninth Circuit takes up PETA challenge of University of Washington public records block

Can an oversight committee avoid public records requests by being affiliated with a university? A Ninth Circuit panel will decide.

(CN) — Attorneys for People for the Ethical Treatment of Animals and a research committee from the University of Washington faced off at the Ninth Circuit on Monday over an injunction barring the university from releasing the identities of committee members through a public records request.

In February 2022, Jane Sullivan and 75 members of the Institutional Animal Care and Use Committee of the University of Washington sued the school after an animal rights advocate filed a records request seeking appointment letters for current and former committee members.

According to Sullivan’s class action, the committee monitors the use of animals within the university’s medical research and operates anonymously to avoid threats of harassment from those who oppose animal testing. Sullivan says releasing unredacted names of committee members infringes their federal and state constitutional rights to free association and expression without harassment and threats.

U.S. District Judge Richard Jones agreed, noting one university researcher had already seen protesting outside their home and granted Sullivan’s motion for a preliminary injunction in April 2022. Between the complaint and injunction, however, animal rights organization PETA filed a motion to intervene.

According to PETA, committee members have no First Amendment right of association through the university 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 cited Garcetti v. Ceballos, arguing committee members are public employees making statements in an official capacity.

Sullivan disagreed, arguing the Ninth Circuit ruled in Demers v. Austin that Garcetti does not apply to speech related to scholarship or teaching. Yet, Jones found that Sullivan neither fit under Garcetti nor Demers, as committee members are not proper employees — they are volunteers. Volunteers who likely engage in protected First Amendment activity, Jones added.

Where Jones disagreed most with PETA, though, involved PETA’s desire to confirm members' credentials and whether the committee is legally constituted. According to Jones, there appeared to be sufficient oversight to ensure committee credentials and legal constitution, and the fact that committee meetings are also public diminishes the public interest in transparency.

The same arguments came up at the Ninth Circuit on Monday, where PETA attorney Peter Hawkins opened by asking, “Do government officials have a First Amendment, a right to perform their official duties anonymously so that they may be shielded from public criticism?”

Before the hearing, The Reporters Committee for Freedom of the Press and 16 media organizations submitted a brief in support of PETA, claiming “a strong interest in safeguarding the right of access to records and ensuring that any exemptions to the disclosure requirements of Washington’s Public Records Act are interpreted narrowly.”

To Hawkins’ question, U.S. Circuit Judges Daniel Collins, a Donald Trump appointee, and Sandra Ikuta, a George W. Bush appointee, questioned Hawkins on whether the information sought qualified for an exemption under the Public Records Act, particularly regarding the committee’s academic affairs.

“Well, that argument simply doesn't fly, really,” Hawkins said. “The basis for that argument is nothing more than the fact that this IACUC happens to be at a university.”

According to Hawkins, federal law prohibits such a committee from intruding on experimental design and evaluation. Instead, the committee enforces National Institutes of Health director guidelines and Animal Welfare Act regulations.

“Similarly, AWA regs may not relate to the design outlines, guidelines, performance or otherwise interrupt actual research or experimentation,” Hawkins said. “So, the interaction with the academic function of the institution is really incidental. Their sole function is to ensure that the research facility is complying with generally applicable animal welfare laws.”

During rebuttals, Judge Collins reiterated Hawkins’ opening question to Sullivan's attorney Darwin Roberts.

“This is an entity that's established by federal law,” Collins said. “It's required to be established under federal law. And it’s a government entity, whether they're employees or volunteers, it performs governmental functions under federal law. How can there be a right to serve in a government role anonymously?”

“They're not completely anonymous because the government knows who they are,” replied Roberts, who went on to argue that the committee’s activities have an associational interest because the constitutional interest in academic freedom and the impairment of that interest occurs when harassment impairs the committee’s service.

Furthermore, Roberts argued that Hawkins’ position on the committee’s academic involvement is inconsistent with the declaration of a former committee member, who said the committee reviews concerns regarding the care and use of animals, makes program improvement recommendations, revises proposals and suspends animal activities when noncompliant.

“The dialogue that's going on there between the IACUC members and the individuals doing conducting the scientific research is exactly the point here,” Roberts said. “That is the academic freedom interest.”

Ikuta then asked, “So, an IACUC at a different institution that wasn't a university that was still subject to a PRA request would not be able to claim such a right?”

“I think it would depend what the animal activity itself was,” Roberts replied. “But I don't think it's necessary for the court to engage in that hypothetical in order to decide that the academic interests that have been demonstrated here and are consistent with Demers can be protected.”

Roberts emphasized PETA only seeks disclosure of the names of committee members, and once PETA has their identities, “everything else flows from that.”

“PETA's free expression is not being inhibited here,” Roberts said. “The only First Amendment interest that's implicated here is the First Amendment interest in the academic freedom of plaintiffs.”

With that, Collins, Ikuta and Senior U.S. District Judge Sidney Fitzwater, a Ronald Reagan appointee sitting by designation from the Northern District of Texas, adjourned with no indication of how they may lean.

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