(This article has been updated to incorporate OHSU's statement on the judge's ruling.)
A Multnomah judge has ruled that Oregon Health & Science University improperly delayed the release of public records and unlawfully retained documents concerning the constitutionally protected activities of People for the Ethical Treatment of Animals.
The July 6 ruling, by Multnomah Circuit Judge Andrew Lavin, orders the university to pay PETA’s legal costs as well as two $200 fines for its delays. It also ordered the university to destroy the records it had illegally retained.
At issue was a lawsuit brought by the animal welfare group in 2020 under Oregon Public Records Law claiming the university had unlawfully withheld videos of experiments conducted on voles despite a records request for them made in 2018. The experiments looked at the social bonding of intoxicated voles in pursuit of a potential treatment for alcohol use disorder.
The university initially argued that the videos were in the possession of the federal Veterans Administration, according to the suit, only to have the VA claim the videos were destroyed. The VA shares some facilities and researchers with OHSU in Portland.
The videos were eventually produced, which OHSU lawyers attributed to an honest mistake and faulty memories on the part of the researchers involved. The judge, however, found the university had engaged unreasonably in an “undue delay” under the law’s call for timely provision of records.
During the case, the group discovered the OHSU police had been receiving emails containing frequent updates on PETA activities from third-party distribution lists kept by two groups, Information Network Associates, Inc. and Americans for Medical Progress. PETA accused the University of violating Oregon’s law that prohibits police from gathering information about political activities that have no direct connection to crime. PETA's lawyer asked the judge to issue an injunction prohibiting OHSU from continuing to do that.
The judge agreed the information had been retained illegally, and required that OHSU destroy the information about PETA's constitutionally protected activities. But he declined to issue an injunction.
In an announcement, the group hailed the ruling and blasted the university for what it termed illegal surveillance of PETA.
“This is a significant victory not just for PETA but for the public’s right to keep the institutions they fund accountable,” said PETA Foundation Director of Litigation Asher Smith.
OHSU did not immediately respond to a request for comment Thursday morning but issued a lengthy statement hours after publication of an initial version of this article. It defended its animal welfare record and the merit of its research on voles. It noted that the judge had explicitly denied two claims made by PETA that in applying the records law OHSU had discriminated against the group due to its political beliefs.
OHSU Recasts Judge's Ruling
The main issue raised by PETA was whether OHSU fulfilled Oregon's longstanding requirement of timely provision of public records.
In 2017, Oregon lawmakers overwhelmingly passed Senate Bill 481, tweaking the law's longstanding provision that prohibits agencies from engaging in undue or unreasonable delay in the production of public records to members of the public. The law's requirement was that government agencies “shall” complete their response to a written public records request “as soon as practicable and without unreasonable delay.”
In 2019, state lawmakers strengthened that provision by overwhelmingly passing House Bill 2353, adding a potential $200 penalty to be levied against agencies found by either a judge, the state Attorney General or an elected district attorney to have violated the law's prohibition on undue delay of records. The sum is paid to the requester.
The OHSU statement on Lavin's ruling expressed regret for its records delays. But it also claimed, despite the clear text of Oregon law and of the judge's ruling, that the judge did not “declare” OHSU in violation of the state's records law. This claim appears to employ a highly legalistic definition of the word “declare,” because the judge's ruling clearly and explicitly found OHSU violated Oregon Public Records Law.
“In its July 6, 2022 rulings,” the OHSU statement claimed, “the court did not declare that OHSU violated Oregon Public Records Law; rather, it ruled that OHSU unreasonably delayed disclosing the videos and photographs responsive to PETA’s 2018 requests and, as a result, that PETA is entitled to $400 in statutory penalties ($200 on each public records claim) plus reasonable attorney’s fees and costs on those two claims alone.”
In actuality, the fines stemmed from the fact that the judge ruled OHSU violated the section of public records law requiring timeliness and prohibiting undue delay in disclosing records to which the public has a right to review.
Lavin stopped short of issuing what's called “declaratory relief” — perhaps explaining the OHSU statement's use of "declare." But he also explicitly rejected a claim made by OHSU in court that the 2017 and 2019 laws concerning public records delays should not apply to the public institution. And he said he agreed with the section of the PETA arguments accusing OHSU of violating those two laws. Specifically, he wrote, OHSU's “belated disclosure of the vole videos at issue constitutes 'undue delay' ... Therefore, the court assesses against defendant a penalty pursuant to that statute in the amount of $200, payable to plaintiff.”
PETA was represented in court by the Portland firm Angeli Law Group LLC, while OHSU used two firms: Harrang Long Gary Rudnick PC of Salem and Perkins Coie LLP of Portland.
You can reach Nick Budnick at [email protected] or at @NickBudnick on Twitter.