Progressive Animal Welfare Soc. v. University of Washington

Decision Date22 November 1994
Docket NumberNo. 59714-6,59714-6
Citation125 Wn.2d 243,884 P.2d 592
CourtWashington Supreme Court
Parties, 95 Ed. Law Rep. 711 PROGRESSIVE ANIMAL WELFARE SOCIETY, a Washington nonprofit corporation, Respondent, v. UNIVERSITY OF WASHINGTON, an agency of the State of Washington, Appellant.

Christine O. Gregoire, Atty. Gen., Lisa Vincler, Asst., Seattle, for appellant.

John T. Costo, Bellevue, for respondent.

Sheldon E. Steinbach, Joseph A. Keyes, Jr., Seattle, Association of American Medical Colleges; Martin Michaelson, Daniel B. Kohrman, David V. Snyder, and Alice D. Leiner, Washington, DC on Behalf of American Council on Education and Association of American Medical Colleges, amici curiae for appellant.

Clifford D. Stromberg, Barbara F. Mishkin, Jonathan S. Franklin, David B. Robbins, Seattle, amicus curiae for appellant on Behalf of the American Psychological Ass'n.

Kathleen N. McKereghan, Seattle, amicus curiae for appellant on Behalf of Washington State Biotechnology Ass'n.

Patricia L. Friend, Baltimore, MD, Alice D. Leiner, J. Matthew Geyman, Seattle, amici curiae for appellant on Behalf of the Johns Hopkins University and Washington Ass'n for Biomedical Research.

David F. Stobaugh, Seattle, amicus curiae for respondent on Behalf of the American Civil Liberties Union.

DURHAM, Justice.

At issue is whether information in a university researcher's unfunded grant proposal involving use of animals in scientific research must be disclosed under the laws governing disclosure of public records. The trial court held that with excision of certain exempt information contained in the proposal, the proposal is subject to disclosure. We affirm in part and reverse in part. We affirm the trial court's decision that the proposal is not exempt from disclosure in its entirety and hold that the exempt material was properly excised. However, because a genuine issue of fact exists as to whether all relevant public records were properly divulged, we remand for further consideration.

In January 1991, Progressive Animal Welfare Society (PAWS) requested a copy of an unfunded grant proposal from the University of Washington (University) pursuant to the public records portion of the public disclosure act, RCW 42.17. The grant proposal, titled "Effects of Socialization on Forebrain Development", concerns research proposed by Dr. Gene Sackett in collaboration with Dr. Linda Cork from The Johns Hopkins University. The proposed project involves the study of brain development in asocially raised rhesus monkeys in an effort to understand and ultimately treat humans engaging in self-injurious behavior.

Pursuant to University procedure, the grant proposal was reviewed at several levels, including submission to the University's grant and contract services for approval. Because the project involves the use of vertebrate animals, it was also reviewed by the University's animal care committee to ensure compliance with federal requirements. As part of the latter review, a "project review form" was prepared identifying the project title, the number and type of animals to be used, whether alternatives to animal use are available, the relevance of the project to human or animal health or biology, the reasoning for using animals, the appropriateness of use of the species and number of animals used, and the care and treatment they will receive. As the University noted at oral argument, the animal care committee meets pursuant to the Open Public Meetings Act of 1971, RCW 42.30, and the project review forms are designed to be generally disclosable, ensuring a degree of public oversight of animal care and treatment. Cf. Progressive Animal Welfare Soc'y v. UW, 114 Wash.2d 677, 680, 684, 790 P.2d 604 (1990) (describing status of project review forms).

Once the grant proposal was approved at the various University levels, it was submitted to the National Institutes of Health (NIH) for funding. There, unfunded grant proposals go through a confidential peer review process. A group of scientists with expertise in the area of the proposed research reviews the grant proposal. The scientists' comments are incorporated into a formal written evaluation known as a "pink sheet". Clerk's Papers (CP), at 62. This pink sheet recommends approval or disapproval and contains a funding rank, which is important because only about 20 percent of approved proposals are actually funded. The pink sheet is given to the applicant. Projects which are not funded are often revised and resubmitted, sometimes to a different funding agency.

If funding is granted, the award is made to the University on behalf of the investigator. The University obtains considerable external funding, consistently ranking as one of the leading universities in terms of dollars obtained.

Once a proposal is funded by the NIH, the grant application is made available to the public; thus, the project title, grantee institution, identity of principal investigator and amount of the award are disclosed. Also, a summary of the proposal and a budget breakdown is sent to the National Technical Information Service, United States Department of Commerce, and is available to the public. However, "[c]onfidential financial material and material that would affect patent or other valuable rights are deleted" from funded grant proposals which are requested under the Federal Freedom of Information Act. CP, at 213.

The NIH does not disclose any information about unfunded grant proposals and the "pink sheets". CP, at 203-05. The United States Department of Health and Human Services, Public Health Service grant application form instructions state that new grant applications for which awards have not been made are generally not available for release to the public, nor are the "pink sheets". CP, at 213. The peer review process is highly confidential, and breach of the standards applicable to that review and its participants may result in scientific misconduct charges being filed. CP, at 60. Moreover, the scientific community as a whole, and other universities, private and public, do not disclose information contained in unfunded grant proposals. 1 The University public records officer denied PAWS' request for disclosure. PAWS appealed to University President Gerberding, who denied the appeal by letter dated March 7, 1991. On April 3, 1991, PAWS filed suit under the public records portion of the public disclosure act seeking access to the unfunded grant proposal. See RCW 42.17.340(1). The University moved for summary judgment, maintaining that as a matter of law the unfunded grant proposal was exempt from disclosure in its entirety.

PAWS conceded that it was not entitled to material which might reveal valuable formulae, designs, drawings and research data, trade secrets, or other confidential data. The trial court examined the unfunded grant proposal in camera, excised such material, and ruled the rest of the document was not protected from disclosure. The trial court granted summary judgment in favor of PAWS, requiring production of the unfunded grant proposal except for the excised material. Upon a motion for clarification by PAWS, the trial court explained it had excised material from the document which, in the court's view, an educated reader could use to reveal research hypotheses or data, valuable formulae and the like.

The trial court awarded attorney fees to PAWS as the prevailing party, but declined to award a penalty under RCW 42.17.340(3). The trial court also denied PAWS' request for production of certain internal University memoranda and correspondence on the ground that they were not relevant to the subject matter of the suit.

The University appealed to the Court of Appeals. PAWS cross-appealed to this court, and the University's appeal was transferred to this court.

THE PUBLIC RECORDS ACT

The public records portion of the public disclosure act, RCW 42.17.250-.348 (hereafter, the Public Records Act or the Act), requires all state and local agencies to disclose any public record upon request, unless the record falls within certain very specific exemptions. The public disclosure act was passed by popular initiative, Laws of 1973, ch. 1, p. 1 (Initiative 276, approved Nov. 7, 1972), and stands for the proposition that,

full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.

(Italics ours.) RCW 42.17.010(11). 2

The stated purpose of the Public Records Act is nothing less than the preservation of the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions. RCW 42.17.251. Without tools such as the Public Records Act, government of the people, by the people, for the people, risks becoming government of the people, by the bureaucrats, for the special interests. In the famous words of James Madison, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both." Letter to W.T. Barry, Aug. 4, 1822, 9 The Writings of James Madison 103 (Gaillard Hunt, ed. 1910).

The Public Records Act "is a strongly worded mandate for broad disclosure of public records". Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978). The Act's disclosure provisions must be liberally construed, and its exemptions narrowly construed. RCW 42.17.010(11); .251; . 920. Courts are to take into account the Act's policy "that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others". RCW 42.17.340(3). The agency bears the burden of proving that refusing to disclose "is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific...

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