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FILEDALAMEDA COUNTY

MAY 1 , 2012

By /L Y, ~ VI) S"'" <!- <e.. z.­

SUPERIOR COURT OF THE STATE OF CALIFORNIA <'0

FOR THE COUNTY OF ALAMEDA

LIFE LEGAL DEFENSE FOUNDATION,

Plaintiff,

vs.

UNIVERSITY OF CALIFORNIA BOARDOF REGENTS, et al

Defendants.

RG12-625716

ORDER DENYING PETITION FORWRIT OF MANDATE

Date: May 10,2012Time: 10:30 amDept: 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.

1

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 nurse­

midwife, 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 EconomicDevelopment 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. Thebill's progress appears to be stalled, but at the hearing Life Legal noted that thelack 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 Researchsurvey of 172 California reproductive health care providers reported theyor their families had been targets of acts of violence by groups that opposereproductive rights at locations away from their clinics or offices.

(c) Persons and groups that oppose reproductive rights attempt to stop theprovision of legal reproductive health care services by threateningreproductive health care service providers, clinics, employees, volunteers,and patients. ... The threat of violence toward reproductive health care

4

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

(d) Nationally, between 1992 and 1996, the number of reproductive healthcare service providers declined by 14 percent. ... There exists a fear onthe part of physicians to enter the reproductive health care field and toprovide 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

5

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

6

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

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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

2 The legislature's ability to subpoena the information directly from the Regentsunder Gov. Code 9401 and review the information in confidence does notdiminish Life Legal's interest in obtaining the information. Democracy requiresnot just an informed legislature but also an informed public. .

8

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

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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

10

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 172012DATED: __

11

SUPERIOR COURT OF CALIFORNIACOUNTY OF ALAMEDA

Case Number: RG12625716Case 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 theforegoing document was mailed first class, postage prepaid, in a sealed envelope, addressedas shown below, and that the mailing of the foregoing and execution of this certificateoccurred 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 onMay 18, 2012

A/7Executive Officer/Clerk ofthe Superior CourtBy Scott Sanchez, Deputy Clerk

Robinson, Charles F.

University of California1111 Franklin Street, 8th FloorOakland, CA 946075200

Millen, Michael

119 Calle Marguerita Ste. 100Los Gatos, CA 95032