(CN) – Anti-abortion activist David Daleiden may see some unredacted public records on a group of employees and researchers affiliated with the University of Washington’s Birth Defects Research Center but the identities of five employees are protected from disclosure, the Ninth Circuit ruled Wednesday.
Daleiden filed an initial request for records under Washington state’s Public Records Act, seeking documents related to the "purchase, transfer or procurement” of human fetal tissue or fetal organs at the laboratory from 2010 to the present, including communications between the university and abortion clinics in Washington and Idaho. As the university prepared to release the information, eight anonymous plaintiffs employed by the University of Washington, various Washington hospitals and Planned Parenthood filed a putative class action against Daleiden and the university seeking to redact their personal information from the request.
In November 2016, U.S. District Judge James Robart issued an order temporarily blocking the university from releasing documents without first redacting all personally identifying information, including job titles.
Daleiden appealed to the Ninth Circuit, which found Robart had erroneously “relied on a blanket finding” that the First Amendment shielded a proposed class of up to 600 people engaged in protected activity, all of whom would face harassment and violence if the records were disclosed absent the redactions.
"Although we agree with the district court that there may be a basis for redaction where disclosure would likely result in threats, harassment, and violence, the court’s order did not address how the Doe plaintiffs have made the necessary clear showing with specificity as to the different individuals or groups of individuals who could be identified in the public records,” U.S. Circuit Judge A. Wallace Tashima, a Bill Clinton appointee, wrote for the panel in 2017. “The district court also made no finding that specific individuals or groups of individuals were engaged in activity protected by the First Amendment and what that activity was.”
The three-judge panel remanded the case to Robart for more specific information on how disclosure would violate the plaintiffs’ constitutional rights. Robart reissued his inunction in November 2017, reiterating his First Amendment holding. He also added a finding that the employees’ personally identifying information is protected by the Washington state Constitution.
The same three judges took up Daleiden’s second appeal of Robart’s injunction in December 2018.
On Wednesday, the panel issued their unanimous decision also written Tashima. In a partial reversal of their earlier opinion, the judges found three of the Doe plaintiffs who advocated for reproductive rights were engaged in protected First Amendment activity, along with two other plaintiffs who performed fetal tissue research.
But the panel held fast to its earlier finding that three other employees are not entitled to the same protections as their colleagues.
“In making its findings, the court relied solely on the exceedingly thin and generalized declarations of these Doe plaintiffs, which fail to allege a particularized, personal link between the declarant and a claimed protected activity,” Tashima wrote.
Daleiden's attorney Peter Breen, with the Thomas More Society, offered some praise for the ruling.
“We were glad to see the order was vacated in part. In particular, the Ninth Circuit clearly wanted to see a particularized factual basis for the injunction,” Breen said by phone Wednesday. “We did not believe that any of the plaintiffs established grounds to put a cloak over public government documents. But at the very least, we are heartened that the Ninth Circuit ruled that they expressly have to show a particularized, personal link between the individual trying to cloak the documents and a claimed First Amendment Activity.”
The three Does whom the court found were unable to show this link are employed by the Seattle Children’s Hospital, The Evergreen Hospital Medical Center, and the Birth Defects Research Lab. The five remaining plaintiffs still covered by the injunction are two researchers at the University of Washington and three abortion clinic employees.
The university employees’ lawyer Vanessa Power was unavailable for comment, but her co-counsel Kim Clark with reproductive rights advocacy firm Legal Voice said she views the ruling as a victory in most respects.
Clark said the panel didn’t question whether the Doe plaintiffs might be subjected to threats or violence as a result of their information being disclosed.
“The court also agreed that those who either took part in or were associated with advocacy for reproductive rights were protected,” Clark said. “The court also concluded that the district court didn’t err in finding that research activities fall under First Amendment protected activity.
Clark said it is just a matter of revisiting the declarations of the three plaintiffs not covered by the injunction and adding more detail as to how their activities are protected. “We don’t view this as an end to the case and we plan to zealously pursue and advocate for our clients,” she said.
Responding to a request for comment about the Ninth Circuit ruling, Daleiden said in an email that researchers and health care providers, "if they are truly proud of their trade, should gladly comply with public records requests with the transparency of any other agency — and if they are not willing to do so, they should cease the practice altogether."
Daleiden, a self-styled undercover journalist, is the founder of the anti-abortion group Center for Medical Progress. In July 2015, the CMP released a series of undercover videos shot by Daleiden and associate Sandra Merritt inside abortion conferences, purporting to show abortion providers attempting to sell fetal tissue for profit.
Each were charged in California with one count of invasion of privacy and 14 felony counts of recording people without their consent. In a lengthy hearing last year to determine if the pair should go to trial, San Francisco Superior Court Judge Christopher Hite dismissed four charges, but ruled they would be tried for the rest.
Daleiden and Merritt each pleaded not guilty in February.
In November 2019, Planned Parenthood won a $2 million civil jury verdict against Daleiden and his cohort over the hidden-camera investigation and subsequent release of the recordings on YouTube.
Daleiden is currently fighting a similar civil lawsuit by the National Abortion Federation.
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