No HIPAA for Hippos (or, Seals and Animal Welfare)

Starting at Olympic Game Farm, Inc. v. Animal Legal Defense FundFriday, June 5, 2009 by Robert Lasnik (W.D. Wash.), which deals with the question of when documents may be kept secret from public view:

The court’s records are open to public view. A party’s unilateral designation of a document as confidential under a protective order does not, in and of itself, justify a seal ….. Where a document has been offered in support of or opposition to a dispositive motion, the party requesting that the record be sealed must articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process….”

OGF is not satisfied with its burden. OGF did nothing to inform the Court other than that it feared the Court might produce the transcript of deposition, the veterinary records or photos. Plaintiff could benefit from this lawsuit. OGF’s real conditions are what is crucial to this lawsuit. Public understanding of dispositive Court rulings will depend on how they know those conditions.

The Court is not bound by a non-disclosure agreement signed decades ago …. Concerning veterinary records: The fact that vets consider their records confidential doesn’t protect them against discovery or disclosure.

No veterinarian privilege exists, there is no equivalent for the Health Insurance Portability and Accountability Act and no case law suggesting animals and humans have the right to equal privacy. The objections of defendants to public disclosure of photos taken during a site-visit by plaintiff are for the most part too vague and speculative. This makes it impossible to exempt the public. In fact, OGF asserts that it “is not concerned that the public will see the images….” OGF suggests instead that third parties unidentified and associated with plaintiff may use photos to sell funds for this litigation. OGF, however, does not explain what such use might be.

The plaintiff believes OGF is harming endangered species under its care, and appears to be acting in good faith. If photographs are used to support the narrative, and not “to gratify private spite or promote public scandals, circulate libelous remarks, release trade secrets, or distribute libelous messages, the balance favors public accessibility.”

OGF also relies on Honorable Ronald B. Leighton’s July 31, 2020 order denying plaintiff’s motion for the lifting of the confidentiality designation on the medical records and photographs. There were no dispositive motions at the time. In fact, none were pending. Judge Leighton’s ruling was therefore not based upon a similar analysis. It did not provide compelling reasons nor the facts that support its decision, as required by this case.

All relevant documents, other than the OGF profit and loss statements were to be unsealed by court order.