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"8809509"

ALAMEDA COUNTY

FILED
MAY 1 , 2012

By

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA

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LIFE LEGAL DEFENSE FOUNDATION, Plaintiff, vs. UNIVERSITY OF CALIFORNIA BOARD OF REGENTS, et al Defendants.

RG12-625716 ORDER DENYING PETITION FOR WRIT OF MANDATE Date: May 10,2012 Time: 10:30 am Dept: 31

The petition of Petitioner Life Legal Defense Foundation ("Life Legal") for a writ of mandate to compel production of documents under the Public Records Act came on regularly for hearing on May 10, 2012, in Department 31 of this Court, Judge Evelio Grillo presiding. Petitioner appeared by counsel Katherine Short. Defendant the Regents of the University of Califomia (the "Regents") appeared by counsel Margaret Wu. The Court having considered the pleadings and arguments submitted in support of and in opposition to the motion, and good cause appearing, it is hereby ORDERED that the petition of Life Legal for a writ of mandate to compel production of documents under the Public Records Act is DENIED.

BACKGROUND FACTS The University of California, San Francisco Bixby Center for Reproductive Health, sponsored the Health Workforce Pilot Project #177 (the "Project") to evaluate the training and use of nurse practitioners, certified nursemidwife, and physician assistants ("Clinicians') to perform first trimester abortions. Clinicians were advised that "Participation in research may involve a loss of privacy, but information about you and the patients you serve will be handled as confidentially and securely as possible." (Wu Dec., Exh D, page 309.) On January 27, 2012, Life Legal requested ten categories of documents. (Petition, Exh A.) As of the hearing on this motion only one general category of information remains at issue, the names of all physicians, clinicians, and stakeholders who participated in the Project. (Requests No. 6-8, identified at Petition, paras 6 and 15.) Life Legal also sought information concerning accounting records and protocols. (Requests No.3 and 9, identified at Petition, paras 6 and 15.) The Regents represents that it has produced that information, and Life Legal does not contest that assertion in its reply brief. Life Legal seeks the names of physicians, clinicians, and stakeholders who participated in the Project to develop testimony relevant to SB 1338, which when the petition was filed was pending in the California State Senate and would permit non-physicians trained under the Project to perform first trimester abortions. Life Legal asserts that the identity of the individual participants is important because the California legislature cannot fully evaluate the proposed legislation without

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having information about the individuals who participated in providing the training and who received the training.!

THE MERITS Life Legal asserts a single cause of action under the California Public Records Act, Gov. Code 6252, to compel the Regents to provide the names of all participating Clinicians in the Research Study. The Regents asserts that the names of the Clinicians are covered by several exceptions to the Public Records Act, specifically Gov. Code sections 6255(a), 6254(c), and 6254(k). Section 6255(a) is the primary statute at issue, and it permits an agency to withhold any record "by demonstrating ... that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." "This catchall exemption contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.... The agency opposing disclosure bears the burden of proving that an exemption applies." (County ofSanta Clara v. Superior Court (2009) 170 Cal.AppAth 1301, 1321.) There is a substantial public interest in matters concerning the circumstances under which women can decide to terminate pregnancies, the

! SB 1338 failed to pass the Senate Business, Professions and Economic Development Committee on April 26, was scheduled for a rehearing on May 7, 2012, and that the bill's sponsor requested cancellation of the second hearing. The bill's progress appears to be stalled, but at the hearing Life Legal noted that the lack of a scheduled hearing does not mean that the bill has been dropped.

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means and methods of terminating pregnancies, and the availability of medical services for terminating pregnancies. The court takes judicial notice that this is a topic that has generated much impassioned debate. "[T]he passionate nature of the [abortion] debate, which heightens public interest in the information at issue in this case, justifies nondisclosure only to the extent it may show that disclosure of that information would pose a potential security threat of some sort to any of the [Clinicians who participated in the Project]." (American Civil Liberties Union
ofNorthern Cal. v. Superior Court (2011) 202 Cal.AppAth 55, 71.)

There is a substantial public interest in a well informed legislature. Life Legal asserts that wants to provide the legislature with the names of the persons involved in the Project so that the legislature can consider the qualifications of those persons before voting on SB 1338. (Ex parte application filed April 17, 2012.) The Regents does not dispute the public interest in a well informed legislature. There is a substantial public interest in protecting individuals from harm. In 2002 the California legislature stated that persons who provide abortion services "are often subject to harassment, threats, and acts of violence." (Gov. Code 62l5(a).) Specifically, the legislature found: (b) In 2000, 30 percent of respondents to a Senate Office of Research survey of 172 California reproductive health care providers reported they or their families had been targets of acts of violence by groups that oppose reproductive rights at locations away from their clinics or offices. (c) Persons and groups that oppose reproductive rights attempt to stop the provision of legal reproductive health care services by threatening reproductive health care service providers, clinics, employees, volunteers, and patients. ... The threat of violence toward reproductive health care

service providers and those who assist them has clearly extended beyond the clinic and into the home.

(d) Nationally, between 1992 and 1996, the number of reproductive health care service providers declined by 14 percent. ... There exists a fear on the part of physicians to enter the reproductive health care field and to provide reproductive health care services. The United States Congress made similar factual findings in 1994 regarding harassment and violence directed at persons who provide abortion services. (US. v. McMillan (S.D. Miss. 1995) 946 F.Supp. 1254, 1261.) The substantial public interest in protecting persons who provide abortion services is manifested in the several statutes that protect persons who provide abortion services from harassment and violence. (Civil Code 3427 et seq; Gov. Code 6215 et seq; Gov. Code 6218 et seq; Gov. Code 6254.18; Penal Code 423 et seq.) These legislative findings and statutes are not historical vestiges of an earlier era. The record includes evidence of a website called "The Nuremberg Files" that as of April 2012 identifies persons who perform abortions and implicitly encourages the harassment of those persons. (Wu Dec., Exh K.) In addition, Sharon Levin, Vice president and General Counsel of the National Abortion Foundation, authenticated compilations of reported incidents of harassment and violence directed at abortion providers through 2011. (Amended Levine Dec., Exh A and B.) The court finds evidence of "potential threats" to Clinicians that amount to more than "a mere assertion of possible endangerment." (Connell v. Superior

Court (1997) 56 Cal.AppAth 601,612.) (Compare American Civil Liberties Union ofNorthern Cal. v. Superior Court (2011) 202 Cal.AppAth 55, 70-73 (finding evidence of potential danger inadequate and ordering identification of companies that provide pharmaceuticals for capital punishment).) The court's factual finding of current potential threats could be based entirely on the "The Nuremberg Files" website. At the hearing on May 10,2012, Life Legal acknowledged that evidence that a threat was made is admissible to show the fact that the threat was made. The court's factual finding is bolstered by the data compilations of the National Abortion Foundation. In evaluating those data compilations, the court has considered both that they might underreport incidents of harassment and violence, as suggested at Levine Dec., para 3, and that they might be overreport those incidents, as suggested by Ms. Levine's statement that the data comes in part from "other pro-choice organizations," Levine Dec., para 3. There in no indication in the record that Life Legal incites, encourages, or advocates the use of threats or violence toward abortion providers. Any disclosure of information to Life Legal under the Public Records Act would, however, be a finding that the information must be produced under the Act and will permit any other person or entity, however irresponsible, to gain access the information. (City ofSan Jose v. Superior Court (1999) 74 Cal.AppAth 1008, 1018 ("once a public record is disclosed to the requesting party, it must be made available for inspection by the public in general"); American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Ca1.3d 440, 451 ("once information is held

subject to disclosure under the Act, the courts can exercise no restraint on the use to which it may be put. ").) There is a substantial public interest in protecting the freedom of women to seek lawful medical services in connection with pregnancy. Any disclosures that are likely to lead to the intimidation of persons who perform abortions will limit the ability of women to obtain those lawful services and interfere with that public interest. (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347,369.) There is a substantial public interest in protecting academic research. In this case, participants in the Program were informed that "information about you and the patients you serve will be handled as confidentially and securely as possible." (Wu Dec., Exh D, page 309.) It is important to protect persons who volunteer to participate in academic research because if that protection is denied then it is likely to deter others from participating in research project that may confer public benefits. (Farnsworth v. Proctor & Gamble Co. (11 th Cir. 1985) 758 F.2d 1545, 1547; Richards ofRockford, Inc. v. Pacific Gas & Elec. Co. (N.D. Cal. 1976) 71 F.R.D. 388, 390-391.) Balancing the above interests, the court finds that the public interest in withholding the names of the Clinicians outweighs the public interest in disclosing those names. First, there is a public interest in protecting persons who provide abortion services from harassment. There is an unfortunate history of harassment, threats, and violence to such persons, which suggests that the court protect the Clinicians' privacy both for their personal protection and also to ensure

that they are not dissuaded from providing lawful medical services. Second, the public has an interest in academic research, and that interest may be compromised if research participants cannot participate with the assurance that their privacy will be protected. Even assuming that the legislature is still evaluating SB1338, and giving appropriate weight to the Life Legal's ability to collect information on a matter of public interest for the purpose of educating itself, the pubic, and legislators, 2 the factors favoring withholding the names of Clinicians outweigh the public interest in disclosure. Gov. Code 6254.18 sets out the statutory minimum protections for the privacy rights of employees of reproductive health services and does not preclude application of the section 6255(a) catchall exception. Section 6255(a) is written in the disjunctive and states that an agency may withhold information "by demonstrating that the record in question is exempt under express provisions of this chapter [such as section 6254.18] or that on the facts ofthe particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." Furthermore, section 6254.18's enacting statute, S.B.1590 (Section 1 of Stats. 2004, c. 922), suggests that the statute was a response to the following legislative finding: "(d) The personal information used to target the victims of these crimes often is obtained by making a request for public records from a government agency." Therefore, even though

The legislature's ability to subpoena the information directly from the Regents under Gov. Code 9401 and review the information in confidence does not diminish Life Legal's interest in obtaining the information. Democracy requires . not just an informed legislature but also an informed public.
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section 6254.18 does not expressly include the names of Clinicians, it would appear to serve the legislative purpose of the section to protect the names of those persons. The court is not persuaded that Gov. Code 6254.18 reflects the legislature's balancing of the public's rights and the rights of employees of reproductive health services facilities and precludes any judicial balancing regarding similar information under section 6255(a)'s catchall exception. Section 6254(c), which was referenced by the Regents, is not applicable. Section 6264(c) exempts "(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." This section is plainly applicable to the names of the patients served under the Project, but does not clearly apply to the names of the Clinicians involved in the Project. Section 6254(k) exempts "Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." This section incorporates by reference the California constitutional right to privacy, which applies an analysis similar to the section 6255(a) balancing of interests. (Hill v. National Collegiate Athletic Assn. (1994) 7 Ca1.4th 1,39-40.) The court would reach the same result under section 6254(k) as it reached under section 6255(a).

EVIDENCE. Petitioner's objections to the statement of Levine regarding the accuracy of the National Abortion Foundation's compilations is OVERRULED. Ms. Levine

has a foundational basis for opining on the accuracy of the information compiled by the organization for which she works. Petitioner's objections to the National Abortion Foundation's compilations of reported incidents of harassment and violence directed at abortion providers through 2011 (Amended Levine Dec., Exh A and B) are OVERRULED. The compilations are admissible under Evid Code 1340 as facts "contained in a tabulation, list, directory, register, or other published compilation ... [because] the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270." The California Attorney General's Criminal Justice Statistics Center relied on a previous version ofthe National Abortion Foundation's compilation, suggesting that the National Abortion Foundation's compilations are "generally used and relied upon as accurate in the course of a business." (Supp Dec of Wu, Exh A, pp 10-11.) Petitioner's objections to the factual content of the studies and reports presented by the Regents in Wu Dec. Exhs F, G, H, and I are SUSTAINED as hearsay. The Regents' objections to the declarations of Millen and Schuler and the Exhibits thereto as well as to the Request for Judicial Notice are OVERRULED. The court considers the evidence for the purpose of evaluating what information has been distributed to the public by what persons, and not for the truth of the matters asserted. The court notes that under Kilroy v. State (2004) 119 Cal.App.4th 140, it cannot, and therefore does not, take judicial notice of the truth of the factual

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findings of the courts recited in Planned Parenthood Golden Gate v. Superior

Court (2000) 83 Cal.App.4th 347,360-362, and in Judicial Watch, Inc. v. Food & Drug Admin (D.C. Cir. 2006) 449 F.3d 141, 153.

MAY 172012
DATED: __

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

Case Number: RG12625716 Case Name: Life Legal Defense Foundation vs. University of California Board of Regents Order Denying Petition for Writ of Mandate.

DECLARATION OF SERVICE BY MAIL

I certify that I am not a party to this cause and that a true and correct copy of the foregoing document was mailed first class, postage prepaid, in a sealed envelope, addressed as shown below, and that the mailing of the foregoing and execution of this certificate occurred at US Post Office Building, Second Floor, 201 13th Street, Oakland. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 18, 2012

Executive Officer/Clerk ofthe Superior Court By Scott Sanchez, Deputy Clerk

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Robinson, Charles F. University of California 1111 Franklin Street, 8th Floor Oakland, CA 946075200

Millen, Michael 119 Calle Marguerita Ste. 100 Los Gatos, CA 95032