Metropolitan News-Enterprise


Tuesday, Augutst 15, 2017


Page 1


Ninth Circuit Says:

Judge Must Justify Secrecy of ‘Does’ in Fetal Research Case

Public Records Act Request Seeks Job Titles, Work Locations


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ordered the district court to justify secrecy, provided by a preliminary injunction, as to the job titles and work locations of University of Washington employees and abortion clinic personnel, sought by a pro-life activist.

The activist, Californian David Daleiden, made a request for the information under the State of Washington’s public records act. He agreed to the redaction of all names, except for eight persons identified by him in his request.

A group of Jane Does and John Does, who are seeking certification as a class, on Nov. 15, 2016, were granted a preliminary injunction by District Judge James L. Robart of the Western District of Washington. Daleiden is contesting the order not only insofar as its job titles and work locations are redacted, but also numerous redactions in documents that were produced relating to procurement of fetuses and research on them.

Specific Findings Needed

Yesterday’s order was signed by Ninth Circuit Judges A. Wallace Tashima, Carl E. McGowan, and Jacqueline Nguyen. They said:

“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. 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.

“We remand for the district court to address how disclosure of specific information would violate the constitutional or statutory rights of particular individuals or groups of individuals. Because the district court is in the best position to deal with the nuances of these issues, we temporarily leave the preliminary injunction in place to allow the court to clarify the basis for any injunction.”

Oral Argument

At oral argument on July 13, McGowen expressed his displeasure over the preliminary injunction insofar as it applies to persons whose connection with the research is not known. Los Angeles attorney Janet Chung, representing the Does, said that matter would have to be addressed to the trial court.

Chung noted that Robart found, from the record, that there was a “very real risk of harassment or violence” to her clients, if they could be identified.

She told the court:

“Our clients are dozens of individuals whose personal safety has been placed at risk because their work is connected to life-saving fetal tissue research.”

The lawyer said that more than 5,000 documents have been provided to Daleiden, commenting:

“This is very far from the concealment that they allege.”

Redactions, she said, have been in accordance with patient privacy laws and orders of the district court.



In this July 26, 2016 file photo, David Daleiden is  being congratulated by supporters outside court after Harris County (Texas) District Judge Brock Thomas dismissed the tampering with government records charges against him at the request of the prosecutor’s office. He and a co-defendant, against whom charges were also dismissed, had made undercover videos of themselves trying to buy fetal tissue from Planned Parenthood.


Peter Breen, an attorney for the Thomas More Society, argued that Robart has “cast a cloak of secrecy over the activities of the Washington State government.” He said:

“The documents ordered redacted are public communications about the day-to-day operations of a taxpayer funded laboratory. These communications are from or to government employees.”

He charged that Robart, in issuing the preliminary injunction pursuant to the U.S. Constitution, “is tearing apart the open government laws  of every state in the union.”

Breen related that Daleiden agreed at the outset to a redaction of the job titles and job sites of employees not because it is legally required, but in hopes of avoiding litigation.

The case is Does v Daleiden, 16-36038.

News Coverage

Daleiden has frequently been the subject of news accounts in recent years.

On July 20, U.S. District Judge William Orrick III of the Northern District of California imposed sanctions amounting to $136,000 following the posting by Daleiden’s lawyers—former Los Angeles County District Attorney Steve Cooley and Brentford Ferreira—of videos seemingly implicating Planned Parenthood and the National Abortion Federation in the illegal sale of fetal body parts.

The lawyers claimed the right to post the videos, notwithstanding a gag order, because they were in public domain, having appeared on YouTube, until Orrick ordered their removal.

The sanctions were against Daleiden, the Center for Medical Progress, Cooley and Ferreira.

On Aug. 3, Daleiden and his center petitioned the United States Supreme Court to determine the constitutionality of the gag order. Daleiden declared:

“Judge Orrick’s gag order, issued at the behest of Planned Parenthood and the National Abortion Federation, is an unprecedented attack on the First Amendment by a clearly biased federal judge.

Orrick’s disqualification is being sought.

The videos were recorded, clandestinely, by Daleiden and pro-life activist Sandra Merritt during the 2014 and 2015 National Abortion Federation. That group sued and obtained the gag order.

Daleiden and Merritt were indicted in Houston by a grand jury last year in connection with their surreptitious recording of conversations, by the Office of Harris County District Attorney which opted not to prosecute them.

On March 28, California Attorney General Xavier Becerra brought charges against Daleiden and Merritt for violating the statute proscribing surreptitious recordings. Superior Court Judge Christopher Hite on June 21 sustained demurrers to 14 of the counts, but with leave to amend based on omission of the names of alleged victims and the locations and dates of the video recording.

The charges have been refiled and are pending.


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