thank you roger thank you and good morning and i'll try to reserve about seven minutes for rebuttal you know we've got a keeper on top good morning may please the court my name is peter breen i am here on behalf of the defendant david de leyden defendant appellant after reversing the the prior appeal reversing the preliminary injunction plaintiff's board the burden on remand to make the required clear showing with specificity as to three primary issues first that specific individuals or groups of individuals are involved in particular first amendment activity second that the information to be disclosed in the public records act documents would subject those specific individuals to threats rip harassment or reprisals and third that those threats ar reprisals would have a chilling effect on the identified first amendment activity plaintiffs met none of those burdens on remain and this court during our first oral argument various members indicated concerns about whether research is generically a protected first amendment activity about the sufficiency of plaintiff's evidence of their own first amendment activity and of connecting the showing of that activity by disclosure of the requested information as well that the district court on remand invited additional evidence despite the doubts at the first of argument in this case the plaintiffs produced no additional evidence on every man and instead they've turned into this campaign of character assassination against my client and what we would contend the record shows the only person the only party in this case with identifiable first amendment advocacy work is mr de wyden and he's now being pilloried for his own effectiveness in terms of his advocacy let me ask you with respect to advocacy if you go back and you look at these revised findings and conclusions by the district court there is very specific talk about advocacy and advocacy with respect to abortion and fetal tissues so one of the challenges here on appeal is that we look at these findings for clear air would you point with respect to your advocacy argument where you think the district court went wrong on its findings well and your honor that the the district court had no specific connection between the do eight people who are in this were brought this lawsuit as class representatives and actual advocacy work for those individuals instead the district court really went more this report went to add the research as the generic activity that ties everyone together and yet you wouldn't call of the the seattle children's hospital the birth defects research laboratory and planned parenthood but you wouldn't call them an expressive association or some sort of first amendment group sure that's required but maybe that's not your point well and your honor it aligned or not aligned advocating in some way making some sort of first amendment activity the major cases in this field you've got list in the district court used brown versus socialist workers to make that connection which which of course was it was the follow up on buckley versus the late show which was about it was about minor political parties it was about socialists at the time who were subject to it and really the the way the brown court put it it for ninety five us ninety eight compel disclosure of the names of such recipients of expenditures could therefore cripple a minor political parties ability to operate effectively and thereby reduce the free circulation of ideas both within and without the political arena that was the issue there's no risk of that here we have a great national debate over abortion it's been going on for fifty years and there's no risk of that being shut down by the production of invoices from the university of washington it in this is this is the problem your honour's that your research itself is not a protected first amendment activity and the one case that was even close down chemical of his case out of the seventh circuit that case talked fact of the research occurring those involved the amounts of money spent are not they do not in any way touch that i ask you about the invoices where you i think as a general principle the fact that the state meaning the g federal or state government is spending money on certain research is not a protected activity in terms of the disclosure of that here my understanding is the argument is that there isn't there isn't an objection to disclosing the invoices but where they contain names and i correct about it in your honour's this is going to point of contention ok we disclaimed names and personal contact information in our discovery we're going in the public records act request and really the only thing left in terms of this specific request before the court is job titles because that the district court actually went back and allowed us the corporate information so really jo titles are it we know once you take out the names and then you leave the money are the what thing what money was spent on the only issue in your view is could a job title such as director of  write the disclose it and certainly we did that in order to avoid litigation of course it did apparently didn't work to issue it and in our view if a job title has been associated with a name publicly well then that wasn't our fault and that's not the public records act which looks at the four corners of the document it sort of be unreasonable to ask a public records officer to go out and go well did your job title get associated with your name in some other venue and so so we we would we had hoped that that would eliminate any of the dispute here well let's take the case of a university researcher because most of the job titles and researchers are connected somewhere either on the website or in research databases so if that is true but then you're linking the job title with the expenditure what's the difference between that and just putting the name on there well and your honor that's that is it's outside the four corners of the of the record and so that is that is outside the scope of what a public records officer would be asked to do under washington law and we would say reasonably but as well there's some other public if you've publicly put yourself out there with your job title well that not something that how can you then say that you would be chilled in first amendment activity by putting your job title out in connection with an expenditure and you ended of course we had the issue of the eight publicly affiliated folks with the fetal tissue  proceeding as doe's even though they've put their name in a national publication in connection with the issue and so that's that's why we're so frustrated in terms of my client forfeiture well it's more that how in the world can you say that you're happening here and so if i think that there was sponsor that is that you are getting the record the public record that demonstrates the movement of the fetal research material i about the fact that we're dealing with a different record than we were at the last time we were here in that we have specific factual findings now with regard to the those and i heard you argue that there's really nothing there to support it would you agree that the factual record is slightly different as to each of the doe plaintiffs in other words are we now grappling with going through the record for each and every doe plaintiff in order to determine knew before it really all the district it was going to double down on the prior conclusions and yes there's a little more is a little more in the way of text but nothing changed at all in the analysis nothing changed in the factual record below that wasn't before you previously aware you still have no evidence of facilitating fetal tissue donations is in no way an expressive activity is in no way a first amendment activity we still not got any of that and it's a the first amendment associational of privacy has never been used to cloak government workers on government time that hasn't changed at all and all of these are these are not issues of well is this fact correct or it should the to the court of read it this way that way all may please the court my name is stephanie olson and i'm representing the washington coalition for open government and nonpartisan that promotes the open government laws in washington and we're the only entity here today actually defending citizens washington citizens rights to public records and the citizens have been enjoying the last fifty years and access to public records and also is based on the incorrect interpretation of the deputy a case in washington article one section seven where we were it is currently before the supreme court weighting a decision but the what w p a case does not apply to this case because the only issue in that case was a corresponding birthdates and the case was very clear the district court just it was a simply incorrect  did it did not extend junction to the names and email addresses and it only decided the corresponding birthdates and if you look at the actual language in the case it's very careful to only identify names associated with corresponding birthdates because that court knows very well the broad reach of the p r a and a very narrow exemptions that must apply and it makes sense because a year earlier in the ninety five case a ninety five or six freedom foundation that court held specifically applied to birthdates not as applied and which is not at issue in this case the state contact information which was allowed by that same court that was not at issue in the case has been held to not be covered by article one section seven and therefore the w p a case does personal contact information that's an issue in this request and that's as to the w p a case but in terms of the actual effect on the pier it both as to the local agencies in the public records officers it places an insurmountable burden public records officers and local agencies now must try and decipher between potential one thousand nine hundred three liability on this vastly overbroad interpretation of first and then the protection to any conceivable controversial issue and if they if they choose to disclose but if they choose not to disclose they're facing substantial penalties under the bridge every where here on a preliminary injunction it's we're not here on the be all and end all is to work the case may end up so given the abuse of discretion standard all we have is a determination of likelihood of success but we don't actually have a final determination here so your sky is falling situation i think premature to me at least as far as the of this case was to the theory of this is the theory of the law that is sets up in the centrally allows the first moment extensions so that the record is still insufficiently developed but we're looking at a an extension of the first amendment to justify a likelihood success and this is the likelihood of success this is the potential outcomes on the public records act this is the catch twenty two that agencies are faced with especially in the burden falls most heavily on the local agencies that are already the discretion over the request and also in terms of actually accessing routine government documents citizens for the last forty six years in washington have highly prioritized basic knowing what the basic transaction of what its government does in these these documents it records these invoices these purchase orders absolutely do not touch on the express activity thank you thank you good morning may it please the court i'm from nassau power here on behalf of the plaintiffs and your honors i will start by addressing some of the questions that were raised in the opening argument by mr de leyden and the first one i'd like to address is the scope of what is in fact before the court today is as the court has noted we're here to support and asked the court to affirm the granting of a proper preliminary injunction by the district court and that the scope of that is quite narrow and it is limited to the context of this case there has been an argument that this will change the law in washington we certainly don't think that's the case at all this is simply applying the public records act and applying exemptions within the scope of the public records that we don't see this case as extending it beyond the contours of the law as it stands now or doing anything that is inconsistent i i think if we affirm the district court the position it would be extension and that in this sense i think we would recognize there's some first amendment protection for researchers specific to this context however and it's tied into the context because this arises within the context of abortion and fetal tissue collection and donation and research and so there's a continuum and the provision of health care services within the provision of reproductive rights for women which is such a controversial and such a politicized issue in this country it's the connection to bat that brings utah and in the herbert case the court found that associating with organizations for political social and education reasons involving abortion services was protected activity under the first amendment that's the closest case that we see that that clearly recognizes this right here the ninth circuit of the things all said bothers me though you said well this in conjunction with the harm but you don't get to the harm if if there's not some first amendment protection i don't think i mean that the harm is another product of the preliminary injunction but if all you have and the harm seems obviously in terms of personal risk and what's been happening in this arena which can't just protect arm hanging out there without some kind of substantive right can you that's that's correct your honor it's that's what gives rise to the basis washington but here seems to me a call that the owner of that right would be the university of washington and not the individual researcher i when a person employed by the state speaks in fisher capacity that's not protected individual activity for that person because that those are words of the state in that the same thing when a nurs washington researchers doing research in a lab funded by the state that that's you know the research is the research of the state not of the individual and so that there's no protection for the individual employee under the custody line of finding that the researchers themselves and it's the right to academic freedom as well as the the right to but but found that first amendment protection in the context of research or that challenges and any way that limits its application and that we think would would limit its application here one thing to perhaps make clear for the court is that when we were here before we understand that there are there certainly were questions about the individuals at issue and there are eight zero plaintiffs and those eight plaintiffs fall within three different groups and we have sense as a matter of judicial record it can be confirmed but we have since certified a class that is based on those same three subgroups and those subgroups are based on three things one is it's the group of people who are advocates and who are practitioners and their staff and so that that would include people who work for for example the planned parenthood organization and advocate broadly for women's health services but also abortion providers themselves genetic counselors people who are working directly to advocate for educate and gather fetal tissue the second is that the staff the people who actually work at the lab and then finally it's got to the diagnostic lap i take it that the potentially your honor but the fundamental point of the birth defects research lab is to act as a clearing house for fetal tissue collection and dissemination and so certainly there may be related activities but that is the purpose of the lab and it's that lab which connects the two groups on each of the other sides and so we view it as a continuum here because so that and maybe i misunderstood the record and i went to an opportunity to clarify with you the seattle children's hospital department of laboratories that falls within the universe leave washington birth defects research lab or is that a baker lap and the research lab is some different component it thank you for asking your honor so john doe one is a person who works at seattle children's hospital and spoke to the facts regarding the lab at seattle children's hospital that's different than the lab that said issue in this case which is the university of washington's birth defects research lab and jane doe two speaks very specifically to the work that is done at what we call the lab but don't how one is at seattle children's hospital at is correct and is associated with research is that that individual situation i apologize your honor your i don't understand that  jane doe one is that seattle children's and which category does that person fall in and you're three you have advocates the staff and then you didn't get to three is that research that's research correct all right so that particular person is what associated with research yes so john doe one is falls within both someone who is a practitioner who helps coordinate as a pathologist  the birth defects lab but also participates in research so falls within multiple categories there's only one joe who is solely a researcher and that is jane doe eight finding information and obviously the expenditure of money is is not protected it's a public matter under the public records act public disclosure act so that leaves only the titles is that correct there's there's disagreement your honor as to what's at issue so let me address that very specifically mr de lied and made his public records request to the university of washington in that request did not limit it or say in that request except for personally identifying information or except for anything in particular he made a broad request that gave rise to this litigation after the litigation commenced there was discussion about whether he would agree to certain redactions and he did agree to a handful that generally are now but but he didn't agree to the scope of redactions that are required under the in charge so now he wants the job titles under back to the extent that they reflect on the invoices correct and he also still wants to address that yes your honor so with respect to job titles the concern there is that in there may be instances where there is only one individual who has the job that's at issue and so identifying that individual by job title alone is sufficient to in combination with there may be other there are your honor we are or are not the university of washington so i understand access to full records only the university does but that yes there's there's a concern that that there are individuals whose by virtue of their job titles alone would be identified there are only six hundred individuals that issue in this case in total after a lot of end of it and five thousand documents but in scoping though when we're talking about where this goes and how broadly this goes what i'm showing is that it's there's a limited parameter and so to the extent that the university in its review of documents which it doesn't every case it has to review documents for exemptions determine that a job title may lead to disclosure of the individual thoughts also does it matter if as counsel said some individuals have already identified themselves publicly no your honor because under the banbridge case the bainbridge case the washington supreme court case recognized that there is a right to privacy even if an individual previously had that information disclosed in the court in that case even though our record in the report had been disclosed to the public it was in the media said that confirming that in conjunction with the public records request was not permitted under the law what it was but what if there are self identification because some of these advocates are out there in the public advocating don't you see a difference between that and the bridge we we don't your honor because in this context again it's the identity of the individual in conjunction with this particular context my my time is up i do want to thank you and we do ask that you know from the district court thank you thanks may please the court my name's jeffrey even i'm a deputy solicitor general for the state of washington and with me at counsel table as assistant attorney general nancy garland i'd like to touch on two points briefly in  my very brief time one is a set of questions that came up regarding the state court litigation over the state constitutional privacy rights and the excuse me and the other is perhaps to pick up on a question just posed by judge when dealing with the nature of the work done by the birth defects research laboratory now as i understand it that i'll start there that laboratory only works on fetal tissue issues however it's important to note that that lab is a clearinghouse so that the bulk of the research is not taking place there it's the lab receives donations of tissue in and  then distributes those out to other laboratories throughout north america so there's there's tissue coming in there's tissue going out for research when we're talking about invoices what we're really talking about there is cost recovery it's not necessarily the expenditure of public funds that is if there is a shipping cost to send a tissue sample to another lab the other lab may be reimbursing the university of washington for that and  so that's much of what's going on as far as the class is concerned we have over six hundred individuals all together a small minority of whom are actually university of washington employees and so  so that the class is not necessarily uniform now if i can turn to the status of well what's happening in state courts as my friend ms olson re a case is still pending on appeal in the washington supreme court the court his court heard argument to about six months ago a decision has not yet come out now what i would suggest is that although as she also correctly said the facts of that case are very different than the facts of this case what's important for this case is the analysis that the state court will eventually bring to the state constitutional question it may be that w p a does not in and of itself answer the state constitutional question at times and we can't control what the scope and the background that the way sions from court is going to use to decide that case but let me just ask you here we have two grounds of by the district court of likelihood of success we wouldn't need to reach the washington ground would we if the court resolves the case on federal issues no then the court i think not only would need to address the state question but probably should refrain from doing so right and depending on where the court what the court's analysis is as to the federal issue and what eventually happens from the state court it may be appropriate to certify a question to the state court it may be a matter of seeking supplemental  resolve that and let me go back and ask you a question about some things that are weigel you said only a small minority of this i guess class of six hundred state employees right that's correct all of the other names get into sta know well i think we want to say not buyers and sellers because we're talking about donations and recruitment of costs here not buying and selling but but yeah that would be the kind of issue that there's a donation coming from ultimately from a patient somewhere coming into b t r l and then research either being done there or the tissue sample is you know the distributed out the b t r all itself is a part of the university of washington  it is part of the university when you see a small minority what your estimate of you know what percent maybe five percent i don't have that as a precise fact so i'm i'm ballpark in that now as far as well when i think that where you don't have one yeah i think it's more that we don't have one but i would point out that there's two related concepts here and with the court's indulgence if i can complete my answer there's a there's some questions earlier i think coming in the context of like an intellectual property concept somebody does a work for hire you're doing research as an employee and in that kind of a scenario maybe we're talking about a research product that winds up being owned by the the ultimate employer however there is also an academic freedom line of cases to think about here in the university would be concerned about the academic freedom of its faculty and  researchers in academic freedom a concept or an issue that's raised in this case not by the university so i guess i can't really go beyond that in terms of speaking substan leave the abortion situation aside let's say if a faculty member who is advocating for communism to be the guiding principle for us democracy if that's possible the university would take  position that that research that the person had done in connection with communism socialism and cetera is part of a first amendment right correct that it's academic freedom now i have to i think i have to  ultimately by saying i don't know because i haven't thought about this point but i the suggestion in your question is a reasonable one the university could also have some concern as being a state agency  that there there is a state ethics act that limits the ability to use public resources to engage in political advocacy but your question was a blow up the whole university system and that out and secure research grants of their own right yes that's my understanding which you know at least some of the costs are not borne by the university that's correct though what is a relationship of the university or the state with respect to that kind of research i mean like you they claim to have been in a lot of litigation or for instance in the past years the california about you know who owns the patent i kind of stuff i public records act that provide exemptions for that kind of research that's done through some kind of a private grant there and there have been instances in which some kind of  the legislature has even allowed some flexibility here for individual faculty members to even personally profit from their own research because of that kind of a scenario but it but isn't it sort of a fact that in virtually every grant whether you get a federal government grant or private grant the university takes a haircut and administrative here caught in terms of being the administrator of that grant because the individual faculty member is an employee of the state and somebody has to account for money coming in and somebody has to account for money going out that's right you know what is the university's position if you have one on this invoice situation and the job title issue because if we exclude as mr delight and names and other personal identifying information it seems we are left with a dispute over invoices that might include job titles this university have a position that the university does not now i would note however that when mr delighted makes what he calls a clarification and says no i don't want this set of personally identifying information that doesn't master of the response right and so as a general matter if we kind of got out of the facts of this case and somebody said i'd like records on subject x and that search turns up a record that talks about subject  x but then maybe it's an email and the next paragraph goes into something completely unrelated standing alone the public records act would not allow a state agency to redact that second thing as being nonresponsive what happens here is that discussion took place in the context of litigation is there a way we can resolve this obviously it didn't but that does change the complex and complection of it and so it's not really a matter of you know those are not at issue they are what they are coming up on records that are within the scope of mr de license request so there is still an issue here as to those records as to that information thank you thank you greenlee took a little extra time with the other side so if you would just add another minute to his time at thank your honor it just i want to reiterate from our position this case has nothing to do with academic freedom or expression and you can you just look at the in the injunction they requested it was not in any way to touch the contents of any sort of research and we've got five thousand pages of documents now and not one of them has been brought forward as some sort of evidence of either expressive activity or in any way academic freedom type activity or anything that is a problem under those circumstances and your honor as i would just caution when we talk about i know there was a mention sky is falling but your honour's rulings and this district court's rulings are very consequential even today under the district court's injunction it doesn't just impact mr lines records requested work it impacted a request by the united states congress for these records they were redacted by the university and sent back to the congress they did not give them on redacted records today you couldn't you couldn't have a faded right they didn't sue they decided not to sue but should they have to that i s a question i'd also say you know that the counsel noted that if this did not arrive in the context of abortion we essentially wouldn't be here and i might urge that controversy is reason for sunlight not reason for cloaking government activity otherwise a that public records officer is going to sit there and go well is this request about genetically modified organisms or wolf research or climate change or nuclear power gender studies or animal lab experimentation is it too controversial maybe washington supreme court its own interpretation of the first amendment i understand that certainly it's a state court this ephemeral court but in terms of respecting those of a court that has very carefully looked at its own public records  the west case both of them dealt with this issue of first amendment associational rights and using that as a a shield against the disclosure of public records and in both of those cases you know washington supreme court  said no there is no first minnesota national right in these appropriately public records so this court's decision could be reviewed well the district court's decision essentially interferes with or conflicts with those decisions of the washington supreme court incorporating its own account when we make government decisions the public records act though he's careful not to do that as was pointed out by the amica us and so for that reason your honour's it is why i would note the district court we are can we have continued we're now state after doing a bit of discovery but this court we're going to be back in front of you in another year on the exact same legal point if we don't get a ruling clarifying what the first amendment doesn't doesn't deal with what is and is not part of the first amendment and really the facts are going to change the law is not going to change we would just respectfully ask for a bit of a clear ruling from this court now so that we can proceed if there is anything else i just might know if this court reverses the injunction what happens we get another set of documents with job titles on redacted the request is fulfilled and we move on and have a you know into something else so thank your honour's thank you thank all counsel for your arguments in this very interesting