Corr Cronin Attorneys Win Injunction Recognizing Exception to the Washington Public Records Act Protecting Constitutional Rights of Association and Privacy

Mallory Bouchee Satre | December 6, 2017

Corr Cronin’s Steven Fogg, David Edwards, and Mallory Satre, serving as pro bono counsel in cooperation with Legal Voice and Stoel Rives, have obtained the re-issuance of a preliminary injunction protecting individuals from the release of their personally identifying information in response to a Washington Public Records Act request.  The John and Jane Doe Plaintiffs include researchers, health care workers, and employees of entities affiliated with the University of Washington’s Birth Defects Research Center.  The Does filed a federal class-action lawsuit seeking an injunction to prevent the release of their names and personally identifying information to anti-abortion activists seeking documents related to fetal tissue research.  The Plaintiffs did not oppose release of the documents themselves, but objected to release of unredacted documents containing their personally identifying information (i.e. names and addresses).  U.S. District Judge James Robart’s order reissued a preliminary injunction that was first imposed in November 2016, allowing release of the records with redactions of the Plaintiffs’ personally identifying information.  Judge Robart’s ruling recognized exemptions to the Washington Public Records Act based on the Federal and Washington Constitutions, namely the rights of association and privacy.

Right of Association – Judge Robart found Plaintiffs provided sufficient evidence showing that disclosure of personally identifying information would violate the Plaintiffs’ rights of association and expressive activity under the Washington and Federal Constitutions.  The Plaintiffs are associated with entities that advocate for or engage in women’s reproductive health services and fetal tissue research.  The Court found that associational rights extend not only to the actual underlying advocacy or research taking place, but to those individuals providing administrative or staff support.  As support is inseparable from the First Amendment protected activity of the organizations being supported, Plaintiffs are entitled to the same First Amendment protections as the organizations for which they work.  The Court found that this associational right was in need of protection in this case because Plaintiffs provided ample evidence of the past and present threats and harassment they face due to their associational ties with the organizations at issue.

Right to Privacy – Judge Robart also found that the redaction of Plaintiffs’ personally identifying information was required by the privacy protections in article 1, section 7 of the Washington State Constitution.  Pursuant to this provision, the Plaintiffs are entitled to an expectation of privacy in their personally identifying information if it could be reasonably expected that release of this information in this context would subject the Plaintiffs to threats, harassment, and greater harms.  Although the law sometimes allows an intrusion on privacy if there is a countervailing need, the Court found an intrusion was not justified here.  The purpose of the Washington Public Records Act is to provide broad access to public records to ensure government accountability, and disclosure of the Plaintiffs’ personally identifying information would not assist the public in monitoring the government.  The Court therefore held that the Plaintiffs have a constitutionally protected expectation of privacy in their personally identifying information in this circumstance.

Corr Cronin could not be more pleased with this win and looks forward to continuing the fight for our clients’ constitutional rights.  For more information please see the attached order.