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Does v. University of Washington

United States District Court, W.D. Washington, Seattle

November 30, 2017

JANE DOES 1-10, et al., Plaintiffs,
v.
UNIVERSITY OF WASHINGTON, et al., Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER REISSUING PRELIMINARY INJUNCTION

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the court is the August 22, 2017, order of the United States Circuit Court of Appeals for the Ninth Circuit reversing and remanding this court's order granting Plaintiffs Jane Does 1-10 and John Does 1-10's (collectively, “Doe Plaintiffs”) motion for a preliminary injunction. (See USCA Order (Dkt. # 113); see also PI Order (Dkt. # 88).) The Ninth Circuit further ordered that the court's “preliminary injunction shall remain in place for a reasonable time not to exceed 120 days to allow the district court to enter necessary findings of fact and conclusions of law supporting injunctive relief.”[1](USCA Order at 4.) Following entry of the Ninth Circuit's order, the court ordered the parties to file supplemental memoranda responding to the Ninth Circuit's guidance. The court has considered the parties' supplemental briefing and related submissions (Pl. Supp. Br. (Dkt. # 119); UW Supp. Br. (Dkt. # 120); Def. Supp. Br. (Dkt. # 122); Pl. Supp. Reply (Dkt. # 123); Pl. Not. Supp. Auth. (Dkt. # 124); Pl. 2d Supp. Br. (Dkt. # 127); UW 2d Supp. Br. (Dkt. # 126); Def. 2d Supp. Br. (Dkt. # 128)), the relevant portions of the record, and the applicable law. In addition, the court heard the argument of counsel on November 29, 2017. (See 11/29/17 Min. Entry (Dkt. # 129).) Being fully advised, the court reissues the preliminary injunction as more fully described below.[2]

         II. BACKGROUND

         On February 9, 2016, Defendant David Daleiden issued a request to Defendant University of Washington (“UW”) under Washington State's Public Records Act (“PRA”), RCW ch. 42.56, 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.” (Power Decl. (Dkt. # 5) ¶ 4, Ex. C (bolding in original).) On February 10, 2016, Defendant Zachary Freeman issued a similar PRA request to UW.[3](Id. ¶ 6, Ex. E.) Among other documents, these PRA requests sought communications between UW or its Birth Defects Research Laboratory (“the Lab”), on the one hand, and Cedar River Clinics (“Cedar River”), Planned Parenthood of Greater Washington and North Idaho, or certain individuals or employees of Cedar River and Planned Parenthood of Greater Washington and North Idaho, on the other hand. (Id. at 1; see also id. ¶ 4, Ex. C at 1-2.) Mr. Daleiden's PRA request specifically lists the names of eight such individuals. (Id. ¶ 4, Ex. C at 1-2.)

         On July 21, 2016, UW notified Doe Plaintiffs that absent a court order issued by August 4, 2016, it would provide documents responsive to Mr. Daleiden's PRA request without redaction at 12:00 p.m. on August 5, 2016. (Does 1, 3-4, 7-8 Decls. (Dkt. ## 6, 8-9, 12-13) ¶ 3, Ex. A; Doe 5 Decl. (Dkt. # 10) ¶ 3; Doe 6 Decl. (Dkt. # 11) ¶ 5, Ex. A.) On July 26, 2016, UW issued a similar notice to Doe Plaintiffs regarding Mr. Freeman's request and indicated that, absent a court order, UW would provide responsive documents without redaction on August 10, 2016.[4] (Does 1, 3-4 Decls. ¶ 4, Ex. B.)[5]

         On August 3, 2016, Doe Plaintiffs filed a complaint on behalf of a putative class seeking to enjoin UW from issuing unredacted documents in response to the PRA requests. (Compl. (Dkt. # 1).)[6] Doe Plaintiffs object to disclosure of the requested documents in unredacted form because the documents include personally identifying information such as direct work phone numbers, work emails, personal cell phone numbers, and other information. (See TAC (Dkt. # 77) at 2 (“Doe Plaintiffs . . . seek to have their personal identifying information withheld to protect their safety and privacy.”); see also, e.g., Doe 5 Decl. ¶¶ 4-5 (“Any email contacts I had with [the Lab] would have highly personal information such as my name, email address, and phone number. . . . My name, email address, and phone number are information that I try to keep private when related to where I work.”).)

         On the same day that they filed suit, Doe Plaintiffs filed a motion seeking both a temporary restraining order (“TRO”) and a preliminary injunction against disclosure of the requested documents.[7] (See TRO/PI Mot. (Dkt. # 2).) In addition, Doe Plaintiffs filed a motion for class certification. (See MFCC (Dkt. # 16).) Doe Plaintiffs ask the court to certify a class consisting of “[a]ll individuals whose names and/or personal identifying information (work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by UW that are related to fetal tissue research or donations.” (Id. at 2.)

         On August 3, 2016, the court granted Doe Plaintiffs' motion for a TRO but set the TRO to expire on August 17, 2016, at 11:59 p.m. (TRO (Dkt. # 27) at 7.) The court restrained UW “from releasing, altering, or disposing of the requested documents or disclosing the personal identifying information of Plaintiffs pending further order from this court.” (Id. at 7.) On August 17, 2016, the court extended the TRO “until such time as the court resolves [Doe] Plaintiffs' pending motion for a preliminary injunction.” (8/17/16 Order (Dkt. # 54) at 2.)

         On November 11, 2016, the court granted Doe Plaintiffs' motion for a preliminary injunction.[8] (PI Ord. (Dkt. # 88).) The court concluded that Doe Plaintiffs were likely to succeed on the merits of their claim that disclosure of their personally identifying information would render them and those similarly situated uniquely vulnerable to harassment, shaming, stalking, or worse, and in this context, would violate their First Amendment rights to freedom of expression and association. (Id. at 18-19.) Thus, the court also concluded that Doe Plaintiffs were “likely to succeed on the merits of their claim that their personally identifying information is exempt from disclosure under the PRA.” (Id. at 19.) After finding that the remaining factors-irreparable injury, the public interest, and the balance of equities-also favored preliminary injunctive relief, the court granted Doe Plaintiffs' motion but narrowed the scope of the injunctive relief it granted as compared to the relief granted in the TRO. (See Id. at 19-22, 25.)

         In the preliminary injunction, the court did not prohibit the release of the documents at issue but rather enjoined UW from releasing the requested documents without first redacting all personally identifying information or information for Doe Plaintiffs from which a person's identity could be derived with reasonable certainty. (Id. at 19-21, 25.) Specifically, the court held that the UW was required to redact all personally identifying information, including but not limited to (a) information that identifies or provides the location of an individual, (b) information that would allow an individual to be identified or located, (c) information that would allow an individual to be contacted, (d) names of individuals, (e) phone numbers, (f) facsimile numbers, (g) email and mailing addresses, (h) social security or tax identification numbers, and (i) job titles. (Id. at 25-26.)

         On December 15, 2016, Mr. Daleiden filed a notice appealing “the district court's grant of a preliminary injunction prohibiting disclosure of ‘all personally identifying information or information from which a person's identity could be derived with reasonable certainty.'” (See USCA Order at 2 (quoting PI Order at 25); see also Not. of App. (Dkt. # 98).) On January 4, 2017, this court stayed proceedings at the district court level, except for purposes of enforcing and administering the preliminary injunction, pending the resolution of Mr. Daleiden's appeal. (1/4/17 Min. Entry (Dkt. # 109).) On August 14, 2017, the Ninth Circuit reversed and remanded the court's preliminary injunction order but nevertheless left the preliminary injunction in place for 120 days “to allow the district court to enter the necessary findings of fact and conclusions of law supporting injunctive relief.” (USCA Order at 4.)

         In its August 14, 2017, order, the Ninth Circuit stated that “[t]o prevail on the First Amendment claim, . . . Doe Plaintiffs must show that particular individuals or groups of individuals were engaged in activity protected by the First Amendment and ‘show “a reasonable probability that the compelled disclosure of personal information will subject”' those individuals or groups of individuals ‘to threats, harassment, or reprisals' that would have a chilling effect on that activity.” (USCA Order at 3 (citing John Doe No. 1 v. Reed, U.S. 186, 200 (2010) and quoting Buckley v. Valeo, 424 U.S. at 1, 74 (1976) (brackets omitted)) (footnote omitted).) The Ninth Circuit agreed “that there may be a basis for redaction where disclosure would likely result in threats, harassment, and violence, ” but determined that “the [district] 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 individual who could be identified in the public records.” (Id.) The Ninth Circuit also determined that this court “made no finding that specific individuals or groups of individuals were engaged in activity protected by the First Amendment and what that activity was.” (Id. at 3-4.) Accordingly, the court remanded the proceeding “to address how disclosure of specific information would violate the constitutional or statutory rights of particular individuals or groups.” (Id. at 4.)

         Pursuant to the court's preliminary injunction, UW produced redacted records to Mr. Daleiden in two stages and completed its production on September 8, 2017. (See Supp. Tapper Decl. (Dkt. # 121) ¶¶ 3-14.) Stage 1 of the production of documents consisted of 1, 678 pages, and stage 2 consisted of 3, 489 pages. (Id. ¶¶ 5, 14.)

         Meanwhile, on August 22, 2017, the court lifted its prior stay and ordered Doe Plaintiffs, UW, and Mr. Daleiden to file supplemental memoranda responding to the Ninth Circuit's guidance. (See 8/22/17 Order (Dkt. # 114) at 1 n.1, 4-5.) The court received the parties' supplemental submissions and now considers whether to reissue, modify, or terminate the preliminary injunction based on the Ninth Circuit's guidance and the applicable law and facts.

         III. ANALYSIS

         A. Standard for Granting a Preliminary Injunction

         “A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.'” Feldman v. Ariz. Sec'y of State's Office, 843 F.3d 366, 375 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008)). To obtain such relief, “[a] plaintiff . . . must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. “A plaintiff must make a showing as to each of these elements, although in [the Ninth Circuit] ‘if a plaintiff can only show that there are ‘serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor, ' and the other two Winter factors are satisfied.” Feldman, 843 F.3d at 375 (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 1291 (9th Cir. 2013)). “That is, ‘serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cotrell, 632 F.3d 1127, 1135 (9th Cir. 2001).

         The Ninth Circuit's order does not call into question the court's conclusions with respect to the last three Winter factors-irreparable harm, the balance of the equities, and the public interest-which the court found weighed in favor of issuing the preliminary injunction. (See generally USCA Order.) Rather, the infirmities identified by the Ninth Circuit relate to Doe Plaintiffs' likelihood of success on the merits. As instructed by the Ninth Circuit, the court will begin its analysis by “address[ing] how disclosure of specific information would violate the constitutional or statutory rights of particular individuals or groups” of Doe Plaintiffs. (See USCA Order at 4.)

         B. The Likelihood of Success on the Merits

         In their first supplemental brief following remand, Doe Plaintiffs urge the court to find that the personally identifying information of Doe Plaintiffs found in the subject documents is protected both on First Amendment and privacy grounds. (Pl. Supp. Br. at 1-3.) Mr. Daleiden argues that because the Ninth Circuit's remand order addressed only First Amendment issues, Doe Plaintiffs' “privacy claim is dead.” (See Def. Supp. Br. at 2 n.2; see also USCA Order.) The court disagrees. Although Doe Plaintiffs raised their privacy rights as an alternate ground for a preliminary injunction in their motion (TRO/PI Mot. at 8-11), and Mr. Daleiden responded (Def. PI Resp. (Dkt. # 50) at 7-10)), the court's preliminary injunction relied solely on Doe Plaintiffs' First Amendment expression and associational rights (see generally PI Order).[9] Thus, the Ninth Circuit has not yet ruled on the privacy issue nor terminated Doe Plaintiffs' privacy claim as Mr. Daleiden asserts. (See id.) In addition, a recent Washington Court of Appeals decision- issued after the Ninth Circuit's remand order-is relevant to Doe Plaintiffs' assertion of constitutional privacy rights in the personally identifying information at issue here. (See Pl. Not. of Supp. Auth. at 1 (citing Wash. Pub. Emps. Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 404 P.3d 111 (Wash.Ct.App. 2017)).) The court directed the parties to submit supplemental briefs on this decision and has considered the parties' submissions. (See 11/20/17 Order (Dkt. # 125); Pl. 2d Supp. Br.; UW 2d Supp. Br.; Def. 2d Supp. Br.) Accordingly, on remand, the court will address not only the issues raised by the Ninth Circuit concerning Doe Plaintiffs' First Amendment expressive and associational rights, but also Doe Plaintiffs' assertion of a right of privacy under Washington State's Constitution.

         1. The First Amendment

         The PRA enumerates a variety of express exemptions. See RCW ch. 42.56. The PRA also incorporates an “other statute” exemption where such a statute imposes confidentiality obligations or prohibits the disclosure of specific information or records. RCW 42.56.070(1);[10] Progressive Animal Welfare Soc'y v. Univ. of Wash., 888 P.2d 592, 602 (Wash. 1994). The Washington State Supreme Court has construed the “other statute” exemption to include exemptions grounded in either the state or federal constitutions. Freedom Found. v. Gregoire, 310 P.3d 1252, 1258 (Wash. 2013.)

         In its remand order, the Ninth Circuit stated that “[t]o prevail on their First Amendment claim, the Doe Plaintiffs must show that particular individuals or groups of individuals were engaged in activity protected by the First Amendment and ‘show “a reasonable probability that the compelled disclosure of personal information will subject”' those individuals or groups of individuals ‘to threats, harassment, or reprisals' that would have a chilling effect on that activity.” (USCA Order at 3 (quoting Reed, 561 U.S. at 200 (2010) and Buckley, 424 U.S. at 74 (1976) (brackets omitted)) (footnote omitted).) In response to the Ninth Circuit's remand order, Doe Plaintiffs assert that they consist of three groups of individuals engaged in First Amendment protected activity. (See Pl. Supp. Br. at 3.) Thus, the court first addresses whether these groups engaged in First Amendment activity and then turns to whether they would be subject to threats, harassment, or reprisals if their personal information is disclosed.

         The first group of Doe Plaintiffs includes “[a]dvocates, [p]ractitioners, and [s]taff” “who advocate through speech or conduct, for organizations and/or entities that provide abortions and/or make available fetal tissue for medical research, including individuals who in fact participated in the procurement of fetal tissue for medical research purposes and/or arranged for the delivery of fetal tissue to the Lab, and staff associated with the same.” (Id..) This group includes John Doe 1, who is an employee of Seattle Children's Hospital, and Jane Does 3-7, who are employees (or former employees) of Planned Parenthood of Greater Washington and North Idaho, Planned Parenthood Federation of America, Cedar River, Evergreen Hospital Medical Center, and UW (“Group 1”). (Id. at 3 n.3; see also Does 1, 3-7 Decls. ¶ 1.) The second group includes “Lab staff, ” who “facilitate[] the collection and/or dissemination of fetal tissue for medical research purposes, and staff associated with the same.” (Pl. Supp. Br. at 3.) This group includes Jane Doe 2, who is an employee of UW (“Group 2”). (Id. at 3 n.4; Doe 2 Decl. ¶ 1.) The third group includes “[r]esearchers and [s]taff, ” “whose efforts contribute to medical research that uses fetal tissue obtained from the Lab, and staff associated with the same.” (Pl. Supp. Br. at 3.) This group includes Jane Does 7 and 8, who are both employees of UW (“Group 3”). (Id. at 3 n.5; Does 7-8 Decls. ¶ 1.)

         Doe Plaintiffs argue that the release of documents pursuant to Mr. Daleiden's PRA request without first redacting the personally identifying information of Doe Plaintiffs in all three groups would violate their First Amendment rights of association and expressive activity, including both advocacy and research.[11] (See Pl. Supp. Br. at 1.) There is no dispute that advocacy and research tied to women's reproductive rights and fetal tissue have become highly politicized topics. As Mr. Daleiden has acknowledged, “the debate over fetal tissue has raged across the country, extending all the way to both parties' presidential primaries, has generated Congressional and other legislative investigations, and still garners much media attention.” (Def. Resp. (Dkt. # 50) at 9 (citing Daleiden Decl. (Dkt. # (50-1).) Thus, Doe Plaintiffs posit that supporting an entity that advocates for or enables the availability of women's reproductive health services or fetal tissue research is without doubt First Amendment activity, as is performing the actual underlying academic or scientific research related to such tissue. (Pl. Supp. Br. at 5-8.) They argue that individuals who associate with these organizations and provide the support and labor these protected activities are entitled to the same First Amendment protections as the organizations for which they work. (See id.) They assert that their work-even as support staff-is inseparable from the First Amendment protected activity of the organizations with whom they work or otherwise associate. (Id. 8-9.) Based on the court's review of Supreme Court and Ninth Circuit precedent, the court agrees with Doe Plaintiffs' position as detailed below.

         a. Group 1 - Advocacy

         The Doe Plaintiffs in Group 1 are or have been employees of entities that either (1) advocate for access to reproductive health care services such as abortion, [12] and/or (2) partner with, collaborate with, or donate to the Lab to further scientific and medical research involving fetal tissue.[13] These entities, and the individuals who work with and support them, aid in the advocacy for continued access to abortion and reproductive rights (which makes fetal tissue available to researchers) and/or the continued ability to conduct the fetal tissue research itself.

         An individual engages in protected First Amendment activity by supporting an expressive or advocacy organization. See Nat'l Ass'n for Advancement of Colored People, 357 U.S. at 462 (protecting the identities of NAACP members and “recogniz[ing] the vital relationship between freedom to associate and privacy in one's associations.”). Indeed, the First Amendment protects Doe Plaintiffs who advocate for lawful programs that provide abortions and allow such patients to donate fetal tissue for scientific research, as well as Doe Plaintiffs who associate with those organizations that further abortion rights as well as fetal tissue research and advocacy. See Planned Parenthood Ass'n of Utah v. Herbert, 828 F.3d 1245 (10th Cir. 2016) (associating with organizations for social, political, and educational reasons that provide abortion services and that participate in lawful programs to allow abortion patients to donate fetal tissue for scientific research is protected First Amendment activity).[14] Thus, the court finds and concludes that the Doe Plaintiffs involved in this type of activity have asserted valid First Amendment constitutional interests.

         b. Groups 1-3 - Fetal Tissue Research

         Doe Plaintiffs in all three groups are engaged in activities that are critical to the conduct of fetal tissue research. The enterprise of university research constitutes First Amendment protected expressive conduct. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (“Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.”); Dow Chem. Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982) (“We think it clear that whatever constitutional protection is afforded by the First Amendment extends as readily to the scholar in the laboratory as to the teacher in the classroom.”) Similar to Doe Plaintiffs here, the plaintiff Herbert asserted that its ÔÇťassociation with other Planned Parenthood providers who participate in lawful programs that allow abortion patients to donate fetal tissue for scientific research . . . is protected by the First ...


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