so we have kind of need a scorecard here to figure out who's arguing let me just run by what i think is the order of the day mr breen you are start is that correct  argue for twelve minutes and you have saved three minutes for rebuttal yes sure ok and what often happens in these cases we've seen it almost every time is that you get going and then the other council gets a little anxious as they see their time fading away so they'll have to watch she will put twelve minutes on the clock and then miserable hubbard will have five minutes correct that we were hoping i'm sorry but we were hoping  activities of a department of the washington state government the documents were redacted or public communications about the day to day operations of a taxpayer funded government laboratory these communications are from or to government employees and their with those doing business with the government and about that taxpayer funded work and in so doing and by founding its decision on the federal constitution this district court and its decision risks tearing apart the open government laws of every state in the union has been improperly framed by the district court by the by the the plaintiffs at the before the court is a request of a couple pages or three pages or so and then a clarifying letter which modified that request personal contact information are not part of this request at all and so when the district court spent an extensive period of pages discussing names and contact personal contact information it really is an advisory opinion there's no jurisdiction to go there even and so that that was something to any ordinary street that reduction of names and personal contact information this appropriate then what's what's this things in between also redacting personal identifying information that could litigation we you know it and apparently you didn't that there is no right to have any redactions of these of this information in these government communications so what's the bottom line here because and i were swirling what would happen if this court were to reverse they kate the preliminary injunction what you're getting back as a practical matter in these documents is entity names because of course entities don't have personal privacy rights job titles so that you could track you know what a particular job point that we were making is that in theory you can be your honour's you can go on the internet and connect the dots on things but the washington state courts have rejected that and in most point you know these these are public records act cases we don't look outside the four corners of the document in most of these cases it could could any piece of information be used to identify anyone certainly but that is not something that then rises to a federal constitutional requirement that all be redacted it and your honors i think it bears repeating the washington public records act is has a broad mandate of disclosure when someone sends an e mail into the washington to a to a unit of the washington state government it's as if you've walked in the front of the facility and posted the communication up on the public notices bulletin board when they send those e mails right back out in response to a request that's how business is done in the state of washington and has been for decades is backed up by decades of washington case law  that's that's your expectation when you send an e mail to the state of washington agency it is on the public bulletin board centrally and so as well is just that was when you look at the harms well actually yes ma'am i don't think i have an answer to my question challenging the entire order so as to the names and contact information there is no legal basis to redact those but they're not actually part of our request so that ok number one that's not part of your you've waived that or you're not pursuing it whichever way you want to and with all due deference it's not part of the issue we did not argue it below i mean we we've been arguing generally about legal principles but we've not had to fight that we ran out enjoined from forever seeking that information in the future should there be some need for down the road as a part of the dish the issue the district court's decision is logic is so sweeping and without time that we we just i don't want to concede that those materials are ok to be enjoined it's just they're not even an issue here today so basically the bottom line is let me make sure i understand your response to judge mccain's question is you want a reversal vacation of the  says that the court grants the motion for plimer injunction but narrows it compared to the hero so you w is enjoined from releasing documents without redacting personally identifying information from which a person's identity could be derived and then the court goes on number one information that identifies or provides the location of an individual are you disputing that or is that information that identifies or provides a location of an individual are they a powerless contesting or not contesting that yes because some of the the information outside of names and personal contact information could be construed and has been construed as being able to identify an individual that has been a very broad the order the district court's order was was very broad over classes of information so you would dispute this to the extent it goes beyond a name or contact information and names and personal contacts impression information then the next thing says information that would allow an individual to be identified or  located and again here we see it is the same thing as the same thing so if it goes beyond the actual name or the personal contact information you would dispute that insofar as it's interpreted beyond names and personal contact information we've disputed names of individuals that seems to fall within what we've talked about correct should be reversed for lack of jurisdiction phone numbers and again unless it's the entities general you know phone number or the direct line for someone certainly we don't want to it's not part of our request though what you want is the number that i can look up on the internet that says this and that entity correct wrong ok and social security or tax id numbers didn't ask there are already exemptions in the law so those are not that is are not on the table job titles and job titles we believe is something that is it is not personal well first off we don't think there's a right to redact any of this information but certainly we we need job titles we specify that that is information that's  very helpful for researching and looking at the and the reason for the job titles i mean how does that compare to this concern that this to court made the finding that there could be facing threats harassment violence etc so what's the difference between a name and a job title well as a practical matter let's say that if you have an entity that is publicly identified certain people and so you have an entity that's involved with this of fetal tissue and they've identified people with particular job titles then really they've they've identified these folks publicly in that way than than why if you start to ask the question then what is your privacy interest in the first place you know what you're not anonymous really as things go but again i mean runners we we have a lot of association should there be a different analysis with regard to third party organizations that get closer to the harper case versus the employees who communicate among themselves how how do you think and this is the problem there's not an identifiable group here and in all of the other expressive it is associated in cases where the right of association is being used to prevent the government from releasing information there's an identifiable group as well the information a government communications that the state of washington releases without reaction on that as a normal course and as well you do have to ask what right is being chilled when someone sends knowingly sends an e mail into or out of the government  state of washington when that public records act is often used just to send out e mails just as it went in the universe to washington received the request and responded to it six months later they said we're releasing it without reaction because that's their normal course so where is your expectation of and so the record really isn't very well developed so it makes it maybe that that you're right that there may be differing interests and i right between these groups of people a government employee is communicating among themselves versus third party organizations that are indisputable to engage in advocacy that would be protected but why can't we just from the premise of just doing is question are you contesting the seems to be the approach of the district court that all research activities are protected by the first amendment or do you do you challenge that principle absolutely current transfer of the fetal tissue which is the raw i mean we use the term raw material but that's the best term we had for the research the research was done by someone else down the road so we're not intruding in any way into their research tactics or their results or their paper but it could be a small piece of the puzzle right so you could have employees who are engaged in protected research and advocacy and i think one of the examples that i think it was your proof there were so many briefs but i think it was you know laid out an example of someone who essentially has written an advocacy piece and so it could be that this individual is involved in research and advocacy but also happens that be a chain e mail that you're now saying is not protect that so that's why i'm saying this the record need to be developed here because it may be that some individuals are happy in no way are connected with the research and then you can raise questions argument as to whether there's any first amendment interests that would be chilled but it could very well be the same individual i don't have a good sense of who these people are or what they do or how it's connected to research or not and you're on your honor to establish the constitutional prohibition on the state of washington releasing records based on a lie and allegations you've got an associate of right you've got to find the group you've got to show that would be chilled as i mean none of that has happened and that is the burden of the pla and so i mean to to come out and say that there is this there is no group and again this sort of information is not the sort of information that is ever restricted for an association or privilege is just not and again i mean these are communications back and forth these are invoices for richardson and you really this is not the sort of information that that was at all at issue in the dow chemical case you know from thirty five years ago which was a discovery case and that's the only case i know of where you are even  and i take it that you disagree that academic and scientific research is protected by the first amendment as a general principle well i know of a single case from thirty five years ago in the servants seven circuit that related it to this to even having some relation that the dalai lama called down chemical case and even that was a case where it was it was gratuitously added later in the case but  that it's not it's not part of the information the communications back and forth that we've requested here are the internal papers of the researchers are not part of it as well in the state of washington the washington public records act has a strong mandate of disclosure if you're right if you take on their may please the court my name is janet chung i represent the templated at least along with my co counsel finesse a power our clients are dozens of individuals whose personal safety has been placed at risk due to their work which is connected to life saving fetal tissue research and the district court's order while you know we have no idea what the connection of these various those or to the research process and if there's an advocacy both of you know what they're you know what the jobs are to the extent right now what we're looking at again is the preliminary injunction that is the district court issued and that is based of course on the record that was before the court and let's be clear about what records are at issue in this case i think that  may be helpful to understand the context at this point the university of washington has made available we understand to the appellant over five thousand pages of documents relating to the birth defects research lab these do include invoices consents authorization forms grant related documents e mails this is very far from the concealment that they allege and then in keeping with that standard protocol prior to disclosure that you did reach out to the documents to comply with things like patient privacy laws student records laws as well as a district court order and attorneys for plaintiffs also have the opportunity to pursuant to a protocol agreed to and approved by the district court to review those documents and the public interest in these records is adequately served by the production of these over five thousand pages of documents and again the record before the district court established also that there is a very real risk of harassment or violence if i  argued by your side as well as picked up on by the district court is the right of association right and so are you talking about the right of association of employees among themselves as well it's an easier argument to make with regard to third party organizations who are known to engage in these in africa see but what about e mail communications between government employees a associational rice do they have they can be you're on about is not limited to just the employees discussing amongst themselves so the description of what the first amendment covers in terms of expression is quite broad and it does include research activities expressive association and you're right your honor that many of the cases do involve explicit organizations but that is not the limit of the protection for example in the planned parenthood of utah case versus herbert  from last year out of the tenth circuit that was a case where the court did find that the folks there who are associated with other providers who participate in lawful right you know issued television programs you're saying that the those are all engaged in research or advocacy that would be protected that's right well one of the questions i have though is that this report made a comment about that he didn't want to impose these intractable sort of in the instead of in the abstract figuring out for eight people is not particularly burdensome so why don't we have that information so the district court could make a determination based on facts again your honor that is something that we would anticipate could be done later but at the point that you know initially with the filing it was first the t r o and then the policeman or injunction solely based on those declarations that were submitted with that initial pleading there has not been an opportunity for further factual development of discovery it was so little that rests in your hands you know made in a discovery of your own client's right don't you represent the dough people correct ok so that's your client and you could put in the record sufficient details as to why they might be harassed or what their connection is that's right around nothing that precluded that right well just as a practical matter this was a very fast moving situation and we the folks who have signed on as clients is a larger group than what's represented in the declarations and also we  have moved for certification of a class and all of those things are you know with mr green then that there's no need for further factual development ask the case moves forward to permanent injunction there will be further factual development or at least information presented  this trick court of certain individuals falling in categories maybe that's one way to do it like these individuals in this category and here's how they're related to the research and advocacy which are seeking the first amendment protection that's right there may well you know where you have the idea actually your honor i'm going to defer that to the state who has i believe the exact number of people who received the notice so what they did again pursuant to public records act process is identified people whose rights may be affected and all of those people including our clients but not limited to our clients did i see that notice even though i know we're on an abuse of discretion standard  think we figure out if there's an abuse of discretion if we don't know even what the categories of people are as to when they're whether they'll be subjected to this arrest right well i think we do have that in the record john are we have information we have to acclamations from people who are in the bucket if you will of people who work at the university they may be there specifically at the lab they have to liaise with many other departments in the medical school they also have arrangements with seattle children's hospital for example we have a declaration from someone who works there we have declarations from people at several of the clinics who do provide fetal tissue to the laboratory so all of that information is established in the record as far as those different relate types of relationship it that there is advocacy related to fetal tissue donation and that the first amendment does protect not just people involved with the program with abortion care and then also with associating with other organizations or individuals for political social and educational reasons including participating in fetal tissue research so you're right that there are a couple of different types of first amendment activity that we're talking about here but the thread that i think we all agree on is mail clerk everybody's included potentially your honor and that again just at the initial stage of bias because you really when you are talking about the herbert case you're talking about the right  yes it could and the what's again linking the activity is that it is related to the work of the lab it is mission driven and there the work is related to that and they are viewed with and they are working in association with  people who are perhaps more directly involved in the of obtaining and transferring of tissue but they are all associated and i guess again if i if i may i'd like to explain why it's i know it sounds  disconcertingly broad but there is a limiting principle and that is not only do you have to have a first amendment protected right or a right of privacy but then you also have to show that there is and this is quoting from joe versus reed a reasonable probability that the compelled disclosure will subject a person to threats harassment or reprisals so there may be lots of situations where you have research activity or you know something else maybe not relating to fetal tissue research that could be first amendment protected expression again i think this is an academic institutions not not everybody is working there but the work that is being done is research that's been clearly found by courts to be protected expressive activity and so again they don't they aren't then entitled to protection from disclosure unless they can also show that other part the threats of harassment and reprisals etc and that is a difficult thing to show but we have that again in the record before the district court and that is the basis for the injunction is that you have that the that type of activity would be chilled if that information were released so those declarations establish the very serious threat  so i won't go into the detail there except to say that simply being associated with fetal tissue research has in this intense time period since the release of the center for medical progress deceptively edited videos that has actually caused directly harassment and violence in fact the national abortion federations report shows an increase from july and august of two thousand and fourteen compared to july and august to twenty fifteen after the videos are released i believe it was three times more acts of violence just comparing those time period so there is a direct link here again whether or not the people who were seeking to protect in fact are directly involved and that's something the factual record can develop but by dint of being associated with that particular kind of activity it places and at risk and like to also discuss the privacy protections and why that's an alternative basis here for the the just the protection in the injunction and again here it's we're not saying that anybody can establish this it's difficult to establish a right to privacy but courts have routinely found that these are protected constitutional interests when there is a fundamental liberty interest that is implicated specifically personal security and bodily integrity and the cost in court in the sixth circuit  applied that concept there again contrary to what opponents would submit that was information held by the government so it's not like you get a free pass just by submitting you know if you have submitted your information the government that you no longer have any rights but there again it was specifically because of that connection to the fundamental liberty interest that the court found that redaction was appropriate and so here i think a lot of what the one of the things if you if we all quit talking in the abstract and talk in the practicality of what's going to get turned over one of the points mr breen brought up was how is the title which often are in these organizational charts that are published all over the place oh is the title something that is entitle to privacy or first amendment protection so your honor in some situations there may well be one person who holds that job and so there there is this notion that not just the names and the contact information but as the court properly found there are other types of information that could lead to identifying individuals and that is why  maybe that kind of job as opposed to all job title sure and i think that that is what the protocol established by the district court allowed for was review and again the plaintiff athletes were able to review records after there had already been written actions to the extent that there is a claim that perhaps it's overbroad those questions are really properly before the just record not this court today well i think we're going back to basics they're saying you know we shouldn't even be in that position in other words under the public records act it's as an actor by the washington legislature and as implemented it's open season basically that's the rule the exception is when you reject and putting him in this sort of collateral proceeding document  document i think that's their argument and again that is the way that the public records act operates i mean i think it's clear from washington courts that constitution the constitution will prevail over the public obviously the disclosure cannot violate the constitution so if it turns into that protocol that is what the district court has blast and what we would submit is appropriate and appropriate use of discretion so again we're here today on the record that was before the district court the court did properly exercises discretion both in finding that there were rights that would be at risk that would put plaintiffs at personal risk to their bodily integrity and that they would need to be protected by violence and that the best way to do that with with the order that it issued and that is with a scope that is beyond the names a lot of contact information thank please the court by james jeffrey even deputy solicitor general and along with my co counsel nancy garland i'm here today on behalf of the university of washington and perry tapper let me turn to judge to seamus question first about the the number of people we're talking about here my understanding is that the notices that the university sent out when they identified when they identified the records at issue and identified people who were mentioned in  them they sent that notice out to between five hundred and six hundred people approximately so that's the size of the group we're talking about embedding cut that includes people who are in a variety of classifications some are university employees some are employees of research partners and may do various have various functions with them understanding now of course as judge when points out we're here on a plane area injunction and so those facts may get further developed before we get to a final resolution of the case but yes that's my understanding so the university had done a fied the records  responsive first by virtue of their subject matter and then gave notice to people who are identified in the record so that includes the names of people who sent in the incoming email for instance yes yes that could include that as well of outgoing email right from the university yes view from that from the university obviously the outgoing ones are from from so some state agency but also includes incoming people you have no idea what the status of those people are right i mean the incoming name that's right and the university would not be in a position on its own to evaluate these records and come to a conclusion as to whether somebody has a privacy interest nor would they have standing in order to even assert that interest on behalf of somebody else well which is why the notices sent out if this is a class action i sue me somebody is going to make a motion to certify the class and that person then would have the obligation right to define the that i'd like to add two points here if i may regarding the interrelationship between the state public records act and the constitution the because i think this helps to clarify what law is at issue on this appeal now as has been said you know the university is obligated to comply with the public records act the the general rule from which any consideration of the public records act would begin would be the agency discloses the records now in this case with the exception of one argument that i'll kind of set aside here for the moment the arguments for redacting information are constitutionally based they're not based on the public records act the public records act itself does in compass constitutional rights as a basis for withholding records or redacted information principle case on that the most recent is freedom foundation versus greg war from the washington supreme court in which the court upheld the withholding of records based on executive privilege of the governor so does the washing and washington constitution have a provision broader scope then a federal counterpart there's a specific set of arguments specific analysis that spelled out for that and that hasn't occurred that hasn't been argued on this appeal if there is some kind of a public safety  submit that person to personal danger not stated as such your honor that i think if you were to make that argument under the washington constitution you'd approach it much the same as the plaintiffs have here under the federal constitution but  to gain some protection there would have to be tied to some other rights such as the first remember something like their right there would have to be some other some other articulated right that that's connected to and so to implicate so i see that my time has expired so unless there are further questions thank you thank you very much thank you know you're using up your own time me michelle will have it on behalf of the washington coalition for open government we're an amicus curiae in this case we are perhaps an expert in washington law i've been doing p r cases for twenty years i am deeply disturbed by the tenor of the discussion i'm hearing because the district court order and the framework that's being proposed would and i do not say this lightly gut the public records act in the state of washington and it would frankly cut every open government law in every state across this country and the reason is this the public records law deals with public records which every party in this case admits these are these are records own used retained prepared by a government t subject to the to the provisions of the constitution rights which as you know the first amendment yes your honor so here let me go down to the specifically so the point is under the p r a you have to prove a record is exempt and yes constitutional provision could in fact be an exemption the problem is in this case where they have the burden of bringing a poem or injunction to prove there was a basis for denial of the records they have to prove will likely go to prevailing on the merits to get a preliminary injunction and the baby your interest and the exemptions claimed by the plaintiff in the this case to be there were no state exemptions claimed i don't think there are any that would apply because for thirty years our you don't need to get so excited we understand your position we understand your concern ok but we're trying to get the bottom of this and sort out not just the public record the three presidents if i constitutional ok if you was not sufficient they have to show the constitutional provision and if i could get back to the question as i understand it there are arguments where this right of association right of privacy this amorphous right of privacy argument and then this idea of somehow sort of academic freedom to do your research rights under the umbrella of the first amendment the problem with their argument is this right of association is meant to protect the association of nongovernmental individuals with other non governmental individuals free from government intrusion it's not meant to protect businesses but associate with the government we don't have a right of association th lets you have secret association with the government and that's one of their arguments and that would fail the right of privacy has to fail as well because they're talking about number one under our state the test and i believe this frankly would apply at the federal level by things that are highly offensive to reasonable people meaning they're actually secret in private that no one knows them and two that they're not of legitimate public concern if you look at the restatement tests that are cited in the priest that's what anybody's understand that's what privacy means it's not what i don't want people to know it's what people don't know and what people shouldn't know and you can't jump straight to the risk of harm as a basis for denial and that's really all they've done here they've said we might be harmed so keep everything back about the expressed research and advocacy areas as sensitive as this one they have not in any way met their burden to prove that we're talking about invoices we're talking about check stubs we're talking about e mails the fact that you might in some way have some connection to a transaction fetal tissue was purchased by the state was paid for by the state does not get to the research being done with that material the same could be said for the people that sell them the sale in the beakers and formaldehyde you can't say that every purchase of every government medical products somehow gets your research because again you have swallowed the whole this will not just apply to this particular set of facts this will apply beyond the medical contacts a supplier provide to any situation where someone says i will be harmed if public information about me is released and we stand here as the only representative of the citizens of this country saying please don't do that that you will got our access our ability to keep our government accountable and they have the burden of proving a likelihood of the prevailing they did not do that the final point i'd like to make is i want to make clear that i think mr brando  well because they had already agreed that certain things were not part of their request this district court did not have the authority and it was not appropriate for him to say in his very broad order here's all the things that you should redact and his could identify would identify that's the big gaping hole our state has dealt with that through the connect the dots theory through their four corners of the document if you start telling the government that they should not release records that might identify someone then they will never release anything it's a slippery slope it's not justified by the statute definitely not by the constitution and we don't think the judge's order should have been entered in the first place because that was not an issue even before him so  information of folks who were found to be in danger and there were a couple differences between that case and this first off they were personnel files of undercover narcotics officers so personnel files there's an exemption of the washington p r i for that so that is not at not something that some of the washing state legislatures taken account of and done their job and placed an exemption there but also in that case there was an identifiable murderous street gang of these undercover officers put about eight of them behind bars another four i believe forty one total put in jail there the short north posse out of columbus ohio and so that that is a much different circumstance than here but even in that case the sixth circuit refused to order and refused to uphold an injunction against the release of the documents all they said to the to the these three undercover narcotics officers was we will order that you be notified whenever anyone requests it and as you've seen in this case washington already does that they've been notifying folks in their mentioned so what that case shows you is how this court should act is to step back let the washington state legislature do its work as i understand there the way you count there are three hundred exemptions in the washington public records act but those are carefully chosen by have to really engage in something that is legislating and with all due deference you would have to find it was unconstitutional as applied against this particular fact setting and then you would read it into the p r a as an exam then but you know that that  is a pretty big it is it is a significant step and one that is not warranted on the key slot in front of you and your honour's side of dovi read justice stevens concurrence in that case that this was not a hard case that the information  government's hands it was voluntarily provided to them to release it and here again we're not even talk about a list it's not even the type that the reason again your honour's why there's no need for further factual development this record this is not the type of information that eat the right to association applies to  this is not lists of members of things like that and there's no expressive authority built in there i believe as well you know if you you look at those cases the planned parenthood case out of utah that was an unconstitutional conditions case done precisely because of their first amendment advocacy you know a steps taken against not the case here this is the mere release a ministerial release of public documents and so for those reasons your honour's this doesn't fit within any of the existing privacy laws which we've cited in our briefs the association all standing laws those are important protections but they don't apply here thank you very interesting case and we understand the passions involved so we have received the argument and the briefing from our counsel the multiple many counsel and i think you're splitting the time actually is maybe one of the best i've seen that actually works so the case just argued doe's versus