Progressive Animal Welfare Society v. University of Washington

Brachtenbach, J.

(dissenting) — The majority overrules our 1993 unanimous holding in Dawson v. Daly, 120 Wn.2d 782 , 845 P.2d 995 (1993). To avoid a direct clash and inconsistency with the holding of Dawson , the majority simply characterizes the Dawson holding as dicta. Majority, at 261 n.7.

*274 The majority makes no analysis of what Dawson actually said and held. It asserts that the Dawson "dicta” found an independent source of an exemption in RCW 42.17.330. Dawson made no such holding.

The majority’s cavalier dismissal of Dawson reveals the fundamental confusion and error in the majority’s analysis. RCW 42.17.330 does not create an exemption in addition to those set forth in other sections of the statute.

First, looking at the majority’s characterization of the Dawson holding as "dicta”, the language of the Dawson opinion disproves the majority’s conclusion which is made without any pretense at analysis of the issues and holding in Dawson . That opinion states: "We hold that RCW 42.17.330 does create an independent basis upon which a court may find that disclosure is not required”. (Some italics mine.) Dawson , at 794. In fact, Dawson went on to provide that if the trial court on remand found the requirements of RCW 42.17.330 to be met, it should enter an appropriate injunction. That hardly smacks of dicta.

Second, the majority’s analysis collapses when RCW 42.17.330 is viewed, as it must be, not as an exemption, but as an independent basis for a court to enjoin the disclosure of specific documents or parts thereof. That is precisely what Dawson held and what the statute itself provides.

By searching RCW 42.17.330 for a separate exemption the majority misses the point entirely. Looking at the various statutory exemptions, one finds they relate to categories, e.g., RCW 42.17.315-.31902. On the other hand, by its language, section .330 relates only to "any specific public record”. We unanimously recognized this difference which the majority now ignores. We said: "However, the protection provided by RCW 42.17.330 differs from that provided by the exemptions in RCW 42.17.310(1) [the exemption there urged].” Dawson , at 794.

When the distinction is drawn, as the statute mandates, between statutory exemptions and the court’s authority under section .330, the majority’s citation of legislative amendments of exemptions becomes irrelevant.

*275 If section .330 means only what the majority concludes, the statute would be unnecessary because exemptions would exist in other sections of the statute. If section .330 is to have any meaning, it must grant, not an exemption, but an independent basis, as clearly held in Dawson , to enjoin disclosure as to specific records when its demanding conditions are met. An exemption is absolute; section .330 is a grant of individualized discretionary authority.

This critical distinction can be easily shown. RCW 42.17.310(l)(s) exempts from disclosure membership lists of camping resorts, condominiums, etc., when in the possession of the Department of Licensing. That is a true exemption which can be asserted by the agency. There is no balancing of interests and no requirement for nondisclosure except that the document be that described in the exemption.

In stark contrast, section .330 relates not to a category of documents, but to a specific document. The court cannot withhold disclosure unless it finds "such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions”. RCW 42.17.330.

It makes no sense at all to give the court the authority provided in section .330 if a document is provided an exemption by another section of the statute.

There are no disputed facts and our review is de novo. I would hold the obvious: biomedical research, including the use of animals under the rigid conditions present, is a vital governmental research function of the University. The Legislature has recognized that fact. RCW 9.08.080. The record shows that animal research is heavily regulated at the federal level to ensure humane treatment of animals and their use only in limited circumstances.

The record also satisfies the requirement that this vital governmental function would be substantially and irreparably damaged through disclosure of unfunded grant proposals. The record is replete with uncontradicted proof that disclosure will have a profound chilling effect on bio *276 medical research at the University. Particularly damaging is the effect of disclosure upon collaborative efforts with researchers outside the University. The record is uncon-tradicted that there will be a similar loss of collaboration with industry.

Finally, disclosure is not in the public interest. The disclosure mandated by the majority will severely disadvantage the University in its funding efforts, and therefore its research efforts — a result clearly contrary to the public interest and human beings who have benefited greatly from such research.

The propriety of use of animals in research is not before the court. I recognize the deeply felt opposition of some persons to such research, but the Legislature and Congress have recognized that animal research is of great value to the people and must1 be protected. Plaintiff seeks information not for the sake of knowledge, but to impede and if possible destroy a method of vital research. I do not quarrel with the right of Plaintiff to use every resource to accomplish its purpose, but this court need not blindly assist by misreading the statute and overruling Dawson . If Dawson does not represent a proper interpretation of RCW 42.17.330, why did the Legislature not amend section .330 in its 1993 or 1994 sessions? Dawson clearly held contrary to what the majority now holds, but for two sessions the Legislature acquiesced. The lack of legislative repudiation is highly significant.

I would apply RCW 42.17.330, as unanimously interpreted in Dawson in February 1993, and reverse.

Utter and Dolliver, JJ., concur with Brachtenbach, J.

Reconsideration denied February 1, 1995.