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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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Matthew Strugar (State Bar No. 232951) Law Office of Matthew Strugar 3435 Wilshire Blvd., Suite 2910 (323) 696-2299 [email protected] Attorney for Petitioner
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF YOLO
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,
Petitioner and Plaintiff,
vs.
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Respondent and Defendant.
Case No. Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief [California Constitution Article I § 3; Gov’t Code § 6250, et seq.; Code Civ. Proc. §§ 1060, 1085; Civ. Code § 3422]
Petitioner and Plaintiff People for the Ethical Treatment of Animals, Inc. (PETA) petitions this
Court for a writ of mandate requiring Respondent and Defendant Regents of the University of California
to immediately make available to PETA public records lawfully requested by PETA pursuant to the
California Public Records Act, Government Code section 6250, et seq. (CPRA). PETA also respectfully
requests this Court grant relief in the form of costs of suit, attorney’s fees, and other appropriate and just
relief resulting from the Regents’ unlawful conduct. PETA alleges as follows:
Introduction
1. The University of California at Davis (UC Davis) has one of the largest animal
experimentation programs in the country, with a laboratory that is 10 times larger in terms of animal use
than the typical federally-registered research facility.
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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2. UC Davis uses thousands of animals in experiments each year, and has an abysmal
record of compliance with federal animal welfare law. In 2017 alone, UC Davis used 7,463 animals in
experimentation, including voles, opossums, dogs, cats, rabbits, and monkeys. This figure does not
include unregulated animals such as mice, rats, or birds.
3. UC Davis is also home to one of seven “National Primate Research Centers.” In 2017,
UC Davis used 2,387 monkeys in experimentation, and an additional 2,293 monkeys were held at UC
Davis for future use in experiments or for breeding purposes.
4. This suit involves two CPRA requests seeking to shed light on primate experiments
occurring at UC Davis. These records are critical to understanding the nature of UC Davis’s primate
experimentation program. The public interest in primate experimentation generally and UC Davis’s
experiments particularly is significant. UC Davis is unlawfully withholding these records.
Jurisdiction and Venue
5. This Court has jurisdiction under Gov’t Code §§ 6258, 6259, Code Civ. Proc. § 1085, and
Article VI, Section 10 of the California Constitution.
6. Venue is proper in this Court. The records in question, or some portion of them, are
situated in the County of Yolo, Gov’t Code § 6259; the acts or omissions complained of occurred in the
County of Yolo, Code Civ. Proc. § 393; and, Respondent is located in the County of Yolo by way of its
Davis, California campus, Code Civ. Proc. § 395.
Parties
7. Petitioner People for the Ethical Treatment of Animals, Inc. (PETA) is a Virginia non-
stock corporation and animal protection charity pursuant to Section 501(c)(3) of the Internal Revenue
Code, with its headquarters located in Norfolk, Virginia. PETA is dedicated to protecting animals from
abuse, neglect, and cruelty. A central tenet of PETA’s mission is to expose neglect and abuse to animals
used in experimentation. PETA is the requester of the information at issue in this case.
8. Respondent Regents of the University of California is a corporation empowered under the
California Constitution, Article IX, Section 9, to administer the University of California and is a public
agency within the meaning of § 6252(d). UC Davis is part of the University of California system.
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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Factual Allegations
I. UC Davis is Frequently Cited for Violations of the Federal Animal Welfare Act in its
Animal Experiments.
9. The California National Primate Research Center at UC Davis is one of seven large
primate laboratories funded by the National Institutes of Health to perform biomedical experiments on
monkeys.
10. UC Davis confines approximately 4,500 monkeys for research and/or breeding purposes.
11. UC Davis’s laboratories are regulated under the federal Animal Welfare Act (AWA) due
to the university’s use of species covered by the AWA. The AWA imposes minimal standards of care on
research facilities and requires at least one annual inspection by the U.S. Department of Agriculture’s
Animal and Plant Health Inspection Service (APHIS).
12. Since 2013, UC Davis has failed to comply with the AWA’s minimal standards of care at
least 24 times, resulting in citations by APHIS. For example:
• On February 13, 2013, APHIS cited UC Davis after two baby monkeys were isolated in
solitary confinement for four months after birth.
• On October 29, 2013, APHIS cited UC Davis after a young macaque monkey was found
dead in his cage “as a result of trauma to the head and neck.” The monkey was trapped in
the “squeeze mechanism” of his cage.
• On May 27, 2014, APHIS cited UC Davis for four violations, including: (1) failure to
properly describe experimental procedures in approved protocols; (2) failure to allow
veterinarians to adequately treat sick animals; (3) failure to ensure the safety of animals
in transport after an incident in which a large sheep fell & crushed a lamb; and (4)
performing unnecessary surgeries on sheep.
• On April 15, 2015, APHIS cited UC Davis after a monkey who was “left on a restraint
board” injured himself while struggling to break free. The monkey broke his own leg
after chewing through the “tape restraining his upper body.” APHIS noted that he was
left restrained and unmonitored for nearly two hours, in violation of standard procedures;
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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• On May 24, 2016, APHIS cited UC Davis after a monkey was injured following an
escape. The monkey was diagnosed with fractures to both of his legs.
• On July 19, 2016, APHIS cited UC Davis for three violations, including failure to: (1)
provide adequate veterinary care: (2) follow an approved animal use protocol; and (3)
ensure the safety of animals in transport after a monkey escaped his transport cage and
had to be captured with the use of a tranquilizer dart gun, resulting in damage to the
monkey’s kidney and internal bleeding. UC Davis was fined $5,000 by APHIS as a result
of the violations documented during this inspection.
• On September 13, 2016, APHIS cited UC Davis with a “critical, repeat” violation, after
two monkeys were injured as a result of laboratory staff’s failure to secure and lock a
divider that separated them. One of the monkeys “had a significant injury” and was
euthanized.
• On February 7, 2018, APHIS cited UC Davis with a “critical, repeat” violation, after a
rabbit was killed due to staff negligence in injecting the animal with a “contrast
medium.” In the same inspection report, APHIS also cited UC Davis after two
incompatible dogs fought with one another, requiring intervening veterinary care and
suturing.
• On April 17, 2018, APHIS cited UC Davis after a guinea pig was dropped from a height
of five feet onto the floor. The guinea pig died shortly after the fall.
II. PETA Requested Records; After a Long Delay, UC Davis Produced a Few and Withheld
Many Others.
13. PETA submitted its initial CPRA request to [email protected] on November 6,
2017. The request sought “[a]ll videographic records related to experiments carried out by the following
UCD faculty members: Dr. Karen Bales (Neuroscience and Behavior Unit), Dr. John C. Capitanio
(Neuroscience and Behavior Unit), Dr. Sally Mendoza (Professor Emeritus, Department of Psychology),
and Dr. Karen Parker (Affiliate Scientist, UCD’s California National Primate Research Center); and
funded by any of the following National Institutes of Health grants: R01HD053555 (‘Neurobiological
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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mechanisms of social bonding in a monogamous primate,’ held by PI Bales), R01HD087048 (‘A
monkey model of naturally occurring social impairments,’ held by PI Parker), R21HD079095 (‘A
monkey model of naturally occurring low sociability,’ held by PI Parker), and R24OD010962
(‘Biobehavioral Characterization of Infant Rhesus Monkeys,’ held by PI Capitanio)” from January 1,
2012 to the present. It also sought, for the same time period, “any and all inventories, indexes, or
catalogues of photographic and videographic records produced at and maintained by the California
National Primate Research Center, including videos produced by its faculty and staff.”
14. A true and correct copy of PETA’s November 6, 2017 CPRA request is attached as
Exhibit A.
15. More than six months passed without a substantive response from UC Davis.
16. UC Davis eventually responded to PETA’s request in a substantive way on May 14,
2018. It provided four videographic records, each between 12 and 25 seconds long, related to grant
R01HD053555 (“Neurobiological mechanisms of social bonding in a monogamous primate,” held by PI
Bales). Altogether, the videos are one minute and two seconds long.
17. UC Davis also produced two videographic records related to grant R24OD010962
(“Biobehavioral Characterization of Infant Rhesus Monkeys,” held by PI Capitanio). One video is six
minutes and six seconds long; the other is ten minutes and six seconds long.
18. All told, UC Davis produced a little more than seventeen minutes of videographic records
in response to PETA’s request.
19. UC Davis refused to produce any videographic records relating to grant R01HD087048
(“A monkey model of naturally occurring social impairments,” held by PI Parker) and grant
R21HD079095 (“A monkey model of naturally occurring low sociability,” held by PI Parker). It based
its denial on Government Code Section 6255, contending the public interest in nondisclosure clearly
outweighs the public interest served by disclosure.
20. UC Davis asserted a “researcher’s privilege” that it alleges protects the UC Davis
experimenters’ right “to conduct research without interference.” It further justified its withholding
videographic records for “studies that are ongoing and not yet published” and videographic records
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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“related to research projects that have not been published” that might “negatively impact researchers’
ability to publish or patent the results of their work.” UC Davis maintained that release of the records at
this time would run the risk of “confusing the public with premature exposure to thoughts that had not
been fully settled and data that had not been subjected to the scrutiny imposed before data and
associated analysis appear in peer-reviewed publications or published books” and “may be contrary to
the public interest in the dissemination of good science.”
21. A true and correct copy of UC Davis’s May 14, 2018 response to PETA’s CPRA request
is attached as Exhibit B.
III. PETA Tries to Resolve the Issue Short of Litigation and Is Ignored
22. In an effort to resolve this dispute without resorting to litigation, PETA wrote to UC
Davis’s Information Practices Analyst Heather Urzua on October 11, 2018.
23. PETA’s letter challenged the University’s withholding of all videographic records funded
by grants R01HD087048 and R21HD079095 on the ground that they were related to research projects
that have not yet been published by pointing out that “a number of experiments which were funded in
whole or in part by NIH grants R01HD087048 and R21HD079095―and which reference, used, and
relied upon the videographic records at issue―have already been published in publicly accessible
scientific journals.”
24. PETA pointed out that “[g]iven that the requested videographic records pertaining to NIH
grants R01HD087048 and R21HD079095 are part of two published and finalized studies, not, as the
University claims, parts of studies which are ‘ongoing and are not yet published’ or parts of research
projects which ‘have not yet been published,’ the University’s purported rationale for withholding these
records under Section 6255’s catch-all exemption is without merit.”
25. PETA also noted that UC Davis’s search or justification for withholding records related
to grants R01HD053555 and R24OD010962 seemed inadequate. PETA noted that UC Davis
experimenters had published numerous articles funded under these grants and that “it seems highly
unlikely that the University has provided PETA with all the responsive videos relating to these two
grants.”
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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26. By way of just one example, the article “Imaging, Behavior and Endocrine Analysis of
‘Jealousy’ in a Monogamous Primate,” whose co-authors include Drs. Bales and Mendoza, states that
“A camera was placed at the side of the subject’s cage and the male was filmed during the uptake period
for 30 minutes, while all of the humans left the room.” The article even specifically states that it was
“supported by the National Institutes of Health (grants HD053555 and P51OD011107).”
27. Yet none of these 30-minute videos were produced.
28. A true and correct copy of PETA’s October 11, 2018 letter is attached as Exhibit C.
29. By email of October 19, 2018, UC Davis Information Practices Analyst Heather Urzua
acknowledged receipt of PETA’s letter and stated that “[t]he request will be reviewed by campus
counsel, and we will contact you with our findings.”
30. A true and correct copy of UC Davis’s October 19, 2018 email is attached as Exhibit D.
31. On October 29, 2018, PETA asked Urzua if the University had any update as to its
response to PETA’s October 11, 2018 letter. On November 5, 2018, Urzua responsed that PETA’s
“request for reconsideration is still under review” and stated they “will contact [PETA] with [their]
findings once [their] review is complete.”
32. A true and correct copy of PETA’s October 29, 2018 email is attached as Exhibit E and a
true and correct copy of UC Davis’s November 5, 2018 email is attached as Exhibit F.
33. To date, PETA has not received a substantive response to its October 11, 2018 letter.
IV. PETA Makes a Second Request for Similar Records Related to Another Grant and UC
Davis Withholds Records Using the Same Justification
34. PETA made another public records request to UC Davis on December 13, 2018. That
request sought, from January 1, 2012 to the present, “[a]ll videographic records related to primate
research carried out by UC-Davis faculty member Dr. Karen Bales (Neuroscience and Behavior Unit)
and funded by National Institutes of Health grant: R01HD071998 (“Effects of Chronic Intranasal
Oxytocin,” held by PI Bales).”
35. A true and correct copy of PETA’s December 13, 2018 CRPA request is attached as
Exhibit G.
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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36. UC Davis denied the request on December 21, 2018. As with the earlier denial, UC Davis
based its denial on Government Code Section 6255, contending the public interest in nondisclosure
clearly outweighs the public interest served by disclosure, and again asserting a “researcher’s privilege”
and maintaining that the research had not been published and that premature release of the records
would confuse the public.
37. A true and correct copy of UC Davis’ denial of PETA December 13, 2018 request is
attached hereto as Exhibit H.
38. As with the earlier request, UC Davis experimenters have published finalized peer-
reviewed papers based on data from experiments funded by grant R01HD071998.
V. Records Responsive to PETA’s Request Exist and Were Withheld Unlawfully
39. In response to PETA’s two requests, UC Davis refused to provide any of the requested
records related to experiments funded by NIH grants R01HD087048, R21HD079095, and
R01HD071998, and produced only seventeen minutes of videographer records related to experiments
funded by NIH grants R01HD05355 and R24OD010962.
40. By refusing to provide records related to experiments funded by NIH grants
R01HD05355, R24OD010962, and R01HD071998, UC Davis misapplied the catchall exemption and
violated its legal duties under the CPRA.
41. UC Davis also failed its legal duties in producing records related to experiments funded
by NIH grants R01HD053555 and R24OD010962, most notably the duty to locate and disclose
requested public records. UC Davis’s own experimenters’ publications indicate there are additional
responsive videographic records that UC Davis is withholding.
42. PETA respectfully petitions for a writ of mandate ordering UC Davis to comply with the
CPRA.
The California Public Records Act
43. Under the CPRA, all records that are prepared, owned, used, or retained by any public
agency, and that are not subject to the CPRA’s statutory exemptions to disclosure, must be made
publicly available for inspection and copying upon request. Government Code § 6253.
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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44. Whenever it is made to appear by verified petition to the superior court of the county
where the records or some part thereof are situated that certain public records are being improperly
withheld from a member of the public, the court shall order the officer or person charged with
withholding the records to disclose the public record or show cause why he or she should not do so. The
court shall decide the case after examining the record in camera (if permitted by the Evidence Code),
papers filed by the parties, and any oral argument and additional evidence as the court may allow. Id.
§ 6259(a).
45. If the Court finds that the failure to disclose is not justified, it shall order the public
official to make the record public. Id. § 6259(b).
46. To ensure that access to the public’s information is not delayed or obstructed, the CPRA
requires that “[t]he times for responsive pleadings and for hearings in these proceedings shall be set by
the judge of the court with the object of securing a decision as to these matters at the earliest possible
time.” Id. § 6258.
A Writ of Mandate and Declaratory Relief is Appropriate
47. Respondent has a clear, present, ministerial duty to comply with the California
Constitution and Government Code section 6250, et seq.
48. PETA has performed all conditions precedent to filing this petition.
49. PETA has no plain, speedy, adequate remedy in the ordinary course of law other than the
relief sought in this petition.
First Cause of Action
Violation of the California Constitution Article 1, § 3(b)
50. PETA realleges and incorporates by reference the preceding paragraphs in this Petition.
51. The California Constitution provides an independent right of access to government
records: “The people have the right of access to information concerning the conduct of the people’s
business, and, therefore, the meetings of public bodies and the writings of public officials and agencies
shall be open to public scrutiny.” Cal. Constitution, Art. 1 § 3(b)(1). This provision was adopted by the
voters in 2004 because, as the ballot argument supporting the measure states, when Californians asked
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
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questions of their government, they increasingly found “that answers are hard to get.” The constitutional
provision is intended to reverse that trend.
52. Respondent’s failure to provide records in response to PETA’s CRPA requests violated
Article 1, Section 3(b) of the California Constitution.
Second Cause of Action
Petition for Writ of Mandate and Declaratory Relief Pursuant to the California Public Records
Act, Government Code section 6250, et seq.
53. PETA realleges and incorporates by reference the preceding paragraphs in this Petition.
54. Pursuant to Government Code section 6258, any person, such as PETA, may “institute
proceeding for injunctive or declaratory relief or writ of mandate in any court of competent jurisdiction
to enforce his or her right to inspect or receive a copy of any public record or class of public records
under this chapter.”
55. The records sought by PETA seek are public records, i.e., writings related to the conduct
of the public’s business.
56. Upon information and belief, Respondent prepared, retained, used, or has control or
constructive possession of public records that are responsive to PETA’s CPRA requests that are
otherwise subject to disclosure.
57. Respondent’s refusal to release records that are otherwise subject to disclosure violates
the CPRA.
58. PETA requests that this Court issue a writ of mandate compelling Respondent to release
the requested records and a declaration that Respondent’s withholding violated the CPRA.
Request for Relief
PETA respectfully requests judgment as follows:
1. That this Court issue a declaration that Respondent violated the California Public Records Act by
its acts and omissions described in this petition.
V e r i fi c a t i o n
I, Jeremy Beckham, am the Research Associate in the Laboratory Investigations Department at
People for the Ethical Treatment of Animals, Inc., the Petitioner in this action. I am authorized to makethis verification on its behalf. I have read the foregoing Verified Petition for Writ of Mandate and
Complaint for Declaratoiy and Injunctive Relief and know the contents thereof. The same is true of my
own knowledge, except as to those matters alleged on information and belief, and, as to those matters, I
also believe them to be true.
1 declare under penalty of pcijury under the laws of California and Utah that the foregoing is true
and correct.
Executed this 'J day of January, 2019, in Salt Lake City, Utah.
Jeremy Beckham
12Ver ified Pet i t ion for Wr i t o f Mandate and Compla in t for Dec laratory
A N D I n j u n c t i v e R e l i e f
Exhibit A
From: Jeremy Beckham <[email protected]> Sent: Monday, November 6, 2017 9:45 AM To: Public Records <[email protected]> Subject: [publicrecords] Records Request from PETA re Videos at UC-Davis Primate Center Importance: High November 6, 2017 Office of the Campus Counsel University of California, Davis One Shields Avenue Davis, CA 95616 Via e-mail: [email protected] Dear Public Records Officer: I am submitting this request for public information on behalf of People for the Ethical Treatment of Animals (PETA) pursuant to California’s Public Records Act, §§ 6250-6277. For the period from January 1, 2012, to the present, PETA hereby requests the following public records from the University of California, Davis (UCD):
x All videographic records related to experiments carried out by the following UCD faculty members: Dr. Karen Bales (Neuroscience and Behavior Unit), Dr. John C. Capitanio (Neuroscience and Behavior Unit), Dr. Sally Mendoza (Professor Emeritus, Department of Psychology), and Dr. Karen Parker (Affiliate Scientist, UCD’s California National Primate Research Center); and funded by any of the following National Institutes of Health grants: R01HD053555 (“Neurobiological mechanisms of social bonding in a monogamous primate,” held by PI Bales), R01HD087048 (“A monkey model of naturally occurring social impairments,” held by PI Parker), R21HD079095 (“A monkey model of naturally occurring low sociability,” held by PI Parker), and R24OD010962 (“Biobehavioral Characterization of Infant Rhesus Monkeys,” held by PI Capitanio).
x For the same time period, I also request any and all inventories, indexes, or catalogues of photographic and videographic records produced at and maintained by the California National Primate Research Center, including videos produced by its faculty and staff. As provided in the open records law, Sec. 6253(c), I will expect your response within ten (10) business days. If you choose to deny this request, please provide a written explanation for the denial including a reference to the specific statutory exemption(s) upon which you rely. Also, please provide all segregable portions of otherwise exempt material. PETA is a non-profit public interest animal protection organization whose federal tax-exempt number is 52-1218336. As such, we request that a non-profit fee waiver be applied to our request. PETA has no commercial interest in the records requested but seeks them strictly in an effort to ensure the public is fully informed about operations and regulations involving the use of animals in laboratories (an issue of well-established public importance). If the foregoing request for a non-profit fee waiver is denied, and fees are expected to exceed $50.00, please notify me by telephone to this effect before this disclosure request is processed.
If you have any questions about our request, please contact me via telephone at 801-994-6730 or via e-mail [email protected]. Thank you very much for your kind assistance with this matter. Sincerely, Jeremy Beckham Research Associate Laboratory Investigations Department 469-286-8558 (m.) | 801-994-6730 (landline)
Exhibit B
From: Public Records [email protected]: RE: UCD Response to Dec. 18 correspondence
Date: May 14, 2018 at 4:52 PMTo: Storm Estep [email protected]: Public Records [email protected]
Dear Mr. Estep, This email is in response to the Public Records Act request from People for the Ethical Treatmentof Animal (PETA) received on December 1, 2017. Please see, below, the information pertaining toeach grant.
R01HD053555 (“Neurobiological mechanisms of social bonding in a monogamous primate,” held by PI Bales)The link, below, provides four videos showing titi monkeys in a natural family grouping. Please note, the worn identifier only pertains to the study group for identification purposesand is not a unique identifier to the primate. Further public information is available athttp://www.cnprc.ucdavis.edu/scientists-map-monogamy-jealousy-in-the-monkey-mind/
Responsive Records: https://ccds.ucdavis.edu/link/responsivevideos.zip
R24OD010962 (“Biobehavioral Characterization of Infant Rhesus Monkeys,” held byPI Capitanio)
The link, below, provides two videos that consist of 1) response to Video Playback and 2)of a Preferential Look test. Further public information is available athttp://www.cnprc.ucdavis.edu/our-services/spotlight-on-animal-care-advancing-the-social-well-being-of-captive-nonhuman-primates/
Responsive Records: https://ccds.ucdavis.edu/link/videoplayback.mp4Responsive Records: https://ccds.ucdavis.edu/link/preferentiallooktest.mp4
R01HD087048 (“A monkey model of naturally occurring social impairments,” held byPI Parker)R21HD079095 (“A monkey model of naturally occurring low sociability,” held by PIParker)
The University's grants R01HD087048 and R21HD079095 are exempt from disclosureunder the California Public Records Act (PRA) pursuant to Government Code Section6255, as the public interest served by withholding records for studies that are ongoing andare not yet published, clearly outweighs the public interest served by disclosure of therecords. The courts have recognized a "researcher's privilege, based upon a strongConstitutional interest in the right of scholars to conduct research without interference, anaspect to the academic freedom recognized as "special concern of the First Amendment." The Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978). Thecourts have applied these Constitutional principles in recognizing a Constitutionally-basedprivilege that protects scholars from having to disclose information that may lead tointerference with their research activities. See, e.g. Dow Chemical v. Allen, 672 F.2d 1262(7th Cir. 1982); Richards of Rockford v. Pacific Gas & Elec., 71 F.R.D. 388 (N.D. Cal.1976). The courts have recognized that premature disclosure of proposed or on-goingresearch may result in a chilling effect on academic research, noting the possibility formisappropriation of research results, the fear of additional disclosure in the future, and ofpotentially severe harm to the integrity of the research and to the investigator's careers. Dow Chemical, supra, at 1276. The University has also withheld records related to research projects that have not yet
The University has also withheld records related to research projects that have not yetbeen published, also pursuant to Government Code Section 6255. Premature disclosure ofdata may negatively impact researchers’ ability to publish or patent the results of theirwork, including letting someone else “scoop” the results by publishing first, which can inturn negatively affect their careers. Disclosure of researchers’ pre-publication data andrelated records of their work risks confusing the public with premature exposure tothoughts that had not been fully settled and data that had not been subjected to the scrutinyimposed before data and associated analysis appear in peer-reviewed publications orpublished books. It could also lead to publication of preliminary and unverified data,which may be contrary to the public interest in the dissemination of good science. Non-disclosure protects the fruits of the researchers’ labor until they are ready to see the light ofday, on terms set by the researchers themselves, thereby safeguarding the integrity of theirwork and their reputations, and providing the needed incentive to continue to pursue theirchosen career for the benefit of the State.
With the delivery of this email and the records herein we are considering your request closed. Should you have any questions or wish to request additional records please [email protected] or call (530) 754-6295.Thank you,Heather
Heather UrzuaInformation Practices AnalystOffice of the Campus CounselOffices of the Chancellor & ProvostUniversity of CaliforniaOne Shields AvenueDavis, CA 95616-8558
From:StormEstep[mailto:[email protected]]Sent:Tuesday,May1,20181:31PMTo:PublicRecords<[email protected]>Subject:RE:UCDResponsetoDec.18correspondenceDear Ms. Urzua, Thank you for providing this follow-up correspondence. My client was anticipating the receipt of all responsive records on the previously provided date ofApril 26, 2018. Your e-mail states that the University needs additional time in order to “continue to appropriatelyexamine a voluminous amount of separate and distinct records that are demanded in the request,”and has unilaterally extended the deadline to May 18, 2018. This request has now been pendingfor almost six months, and this is the second time the University has delayed its response toPETA’s request. PETA requests that the University provide the records that they have been able to gather andexamine as of the time of receipt of this e-mail, with the remainder of the records being providedon or before May 18, 2018, as stated in your e-mail. My client would then be able to review thepartial response and evaluate whether it is possible to limit the scope of the production for the
partial response and evaluate whether it is possible to limit the scope of the production for theremaining records, thereby possibly saving the University additional resources. I look forward to your response. Thank you for your time. Sincerely,STORM ESTEPCounselPETA Foundation1536 16th St. NWWashington, DC 20036202-540-2198 | Office832-226-7248 | Mobile202-540-2208 | Facsimile Sponsor a doghouse and help a lonely "outside dog" survive the winter chill.THIS MESSAGE MAY BE PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGEAND/OR THE ATTORNEY WORK PRODUCT DOCTRINE. IF YOU BELIEVE THATYOU HAVE RECEIVED THIS MESSAGE IN ERROR THEN PLEASE DO NOT READIT. PLEASE REPLY TO THE SENDER THAT THE MESSAGE HAS BEEN SENT INERROR AND THEN DELETE THE MESSAGE. THANK YOU.From:PublicRecords<[email protected]>Sent:Thursday,April26,20184:03PMTo:StormEstep<[email protected]>Cc:PublicRecords<[email protected]>Subject:RE:UCDResponsetoDec.18correspondenceDear Mr. Estep, The purpose of this email is to convey that we continue to work on PETA’s public records request.We require additional time to respond to your request, due the following circumstances:
· The need to continue to appropriately examine a voluminous amount of separate anddistinct records that are demanded in the request.
We will communicate any additional anticipated delays, otherwise, we will be in touch by May18th, 2018. Should you have any questions, please contact our office at (530)754-6295 or via email [email protected]. Thank you,Heather
Heather UrzuaInformation Practices AnalystOffice of the Campus CounselOffices of the Chancellor & ProvostUniversity of CaliforniaOne Shields Avenue
One Shields AvenueDavis, CA 95616-8558
From:PublicRecordsSent:Thursday,March1,20183:58PMTo:[email protected]:PublicRecords<[email protected]>Subject:RE:UCDResponsetoDec.18correspondenceDear Mr. Estep, The purpose of this email is to convey that we continue to work on PETA’s public recordsrequest dated November 6th, 2017. We require additional time to respond to your request,due the following circumstances: · The need to continue searching for and collecting the requested records from field
facilities or other establishments that are separate from the office processing therequest.
· The need to continue searching for, collecting, and appropriately examining avoluminous amount of separate and distinct records that are demanded in the request.
We will communicate any additional anticipated delays, otherwise, we will be in touch byApril 26th, 2018. Should you have any questions, please contact our office at (530)754-6295 or via email [email protected]. Thank you,Heather
Heather UrzuaInformation Practices AnalystOffice of the Campus CounselOffices of the Chancellor & ProvostUniversity of CaliforniaOne Shields AvenueDavis, CA 95616-8558
From:JanaLGabbySent:Thursday,December21,20173:07PMTo:StormEstep<[email protected]>Cc:PublicRecords<[email protected]>Subject:UCDResponsetoDec.18correspondenceDearMr.Estep,ThisemailisinresponsetoyourleTerdeliveredonMonday,December18th(aTached)toaddressdeficienciesinouriniXalacknowledgementleTer.
· Determina3onofDisclosableRecordsunderCal.Gov.CodeSec3on6253:Iamworking
ontrainingnewstafftoaccommodateUCDavispublicrecordsrequestworkloadanditwasmyerrorinnotproperlyrelayingthemessagethatwhenprovidingtheacknowledgementnoXcewemuststatewhetherrecordsexistanddisXnguishwhatexempXonsareexpectedtobeasserted.PleaseaccepttheinformaXonbelowastheamendedacknowledgement.
o WithregardtoyourrequestforvideographicrecordsthatexistrelatedtoresearchcarriedoutbyDr.Bales,Dr.Capitanio,Dr.MendozaandDr.Parker:A`erreachingouttorelevantuniversitydepartmentsasearchwasconductedandindeed,itwasconcludedthattherearemanyresponsiverecords.However,weanXcipatethatalargeporXonoftheserecordswillbeexemptpursuanttoGovernmentCodeSecXon6255,asthepublicinterestservedbywithholdingrecordsforstudiesthatareongoingandarenotyetpublished,clearlyoutweighsthepublicinterestservedbydisclosureoftherecords.Thecourtshaverecognizeda"researcher'sprivilege,baseduponastrongConsXtuXonalinterestintherightofscholarstoconductresearchwithoutinterference,anaspecttotheacademicfreedomrecognizedas"specialconcernoftheFirstAmendment."TheRegentsoftheUniversityofCaliforniav.Bakke,438U.S.265,312(1978).ThecourtshaveappliedtheseConsXtuXonalprinciplesinrecognizingaConsXtuXonally-basedprivilegethatprotectsscholarsfromhavingtodiscloseinformaXonthatmayleadtointerferencewiththeirresearchacXviXes.See,e.g.DowChemicalv.Allen,672F.2d1262(7thCir.1982);RichardsofRockfordv.PacificGas&Elec.,71F.R.D.388(N.D.Cal.1976).Thecourtshaverecognizedthatprematuredisclosureofproposedoron-goingresearchmayresultinachillingeffectonacademicresearch,noXngthepossibilityformisappropriaXonofresearchresults,thefearofaddiXonaldisclosureinthefuture,andofpotenXallysevereharmtotheintegrityoftheresearchandtotheinvesXgator'scareers.DowChemical,supra,at1276.
o Withregardtoyourrequestforinventories,indexes,orcataloguesofphotographicandvideographicrecords,ithasbeendeterminedthatnorecordsexist.AsyouknowtheCaliforniaPublicRecordsActdoesnotrequireanagencytocreatearecordwhenonedoesnotalreadyexist.
· TimelinessofDisclosure:ThankyouforbringingtoouraTenXontheinadvertentuseoftheMarch1,2017date.PleasenotethattheaccuratedatefordeliveryisMarch1,2018.IndeterminingthisdateofproducXonweconsideredtheresearcher’sXme(outsideoftheirresearchXme)toaccess,reviewandgathertheserecords,andtheXmeitwilltakeforourofficetoproperlyreviewtherecordspursuanttorelevantlawanduniversitypolicy.WiththoseconsideraXonswefeelthattheMarch1,2018dateiswellwithintheexpectaXonsoftheCPRA,Gov.CodeSecXon6253(b)whereintherecordsaretobemadepromptlyavailable.
Sincerely,Jana
Jana GabbyInformation Practices AnalystOffice of the Campus CounselOffices of the Chancellor & Provost
Offices of the Chancellor & ProvostUniversity of CaliforniaOne Shields AvenueDavis, CA 95616-8558
From:[email protected][mailto:[email protected]]OnBehalfOfStormEstepSent:Monday,December18,20172:03PMTo:PublicRecords<[email protected]>Subject:[publicrecords]ResponsetoUCDavisDecember1CorrespondenceregardingPublicRecordRequestDearMs.Urzua,PleasefindaTachedaresponse,onbehalfofPeoplefortheEthicalTreatmentofAnimal(PETA),toUCDavis’December1,2017correspondenceregardingPETA’spublicrecordrequestmadeonNovember6,2017.PleaseletmeknowifthereareanyquesXons.STORM ESTEPCounselPETA Foundation1536 16th St. NWWashington, DC 20036202-540-2198 | Office832-226-7248 | Mobile202-540-2208 | Facsimile Sponsor a doghouse and help a lonely "outside dog" survive the winter chill.THIS MESSAGE MAY BE PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGEAND/OR THE ATTORNEY WORK PRODUCT DOCTRINE. IF YOU BELIEVE THATYOU HAVE RECEIVED THIS MESSAGE IN ERROR THEN PLEASE DO NOT READIT. PLEASE REPLY TO THE SENDER THAT THE MESSAGE HAS BEEN SENT INERROR AND THEN DELETE THE MESSAGE. THANK YOU.
Exhibit C
{00319971}1
October 11, 2018 Ms. Heather Urzua Information Practices Analyst Office of the Campus Counsel Offices of the Chancellor & Provost University of California, Davis Via e-mail to: [email protected] Dear Ms. Urzua, On behalf of People for the Ethical Treatment of Animals (PETA), I am writing concerning the University’s response to PETA’s public records request submitted on November 6, 2017. As detailed below and in violation of California law, the University failed provide sufficient justification for withholding responsive video records produced in connection with National Institutes of Health (NIH) grants R01HD087048 and R21HD079095. Further, the University’s search for responsive records appears to have been inadequate. PETA requests that the University immediately produce the withheld videos related to NIH grants R01HD087048 and R21HD079095 or provide PETA with a legally adequate response for withholding the videos. In addition, PETA requests that the University conduct another search for responsive records related to the experiments listed in Section B, each of which fit squarely within PETA’s public records request but were seemingly not located by the University’s initial search. If responsive records relating to these experiments exist and were withheld, the University has failed to provide adequate justification for withholding.
PETA’s Public Records Request PETA’s public records request sought, for the period from January 1, 2012 through November 2017, “[a]ll videographic records related to experiments” carried out by Dr. Karen Bales, Dr. John C. Capitanio, Dr. Sally Mendoza, and Dr. Karen Parker, funded under NIH grants R01HD053555, R01HD087048, R21HD079095, and R24OD010962.1 1 PETA’s public records request also sought, for the same period, “any and all inventories, indexes, or catalogues of photographic and videographic records produced at and maintained by the California National Primate Research Center, including videos produced by its faculty and staff.” The University responded to this portion of the request via e-mail on December 21, 2017 and noted that it was not providing records responsive to this request because “it has been determined that no [such] records exist.”
2
The University’s Response The University responded to PETA’s public records request on May 14, 2018, producing four videographic records relating to grant R01HD053555, two videographic records relating to grant R24OD010962, and withholding in full all videographic records relating to grants R01HD087048 and R21HD079095 pursuant to California’s Public Records Act, Cal. Gov’t Code § 6255, claiming that the records are exempt “as the public interest served by withholding records for studies that are ongoing and are not yet published, clearly outweighs the public interest served by disclosure of the records.”
A. The University’s Response Concerning Records Related to Experiments Funded by Grants R01HD087048 and R21HD079095 is at Odds With California Law
The University claims that it can wholly withhold the videos related to experiments funded by grants R01HD087048 and R21HD079095 on the grounds of protecting academic freedom― arguing that releasing videos related to experiments that are ongoing and not yet published “may result in a chilling effect on academic research” and contending that releasing records “related to research projects that have not yet been published” may “negatively impact researchers’ ability to publish or patent the results of their work” and could “risk confusing the public with premature exposure to thoughts that had not been fully settled and data that had not been subjected to the scrutiny imposed before data and associated analysis appear in peer-reviewed publications.” Contrary to the University’s claims, a number of experiments which were funded in whole or in part by NIH grants R01HD087048 and R21HD079095―and which reference, used, and relied upon the videographic records at issue―have already been published in publicly accessible scientific journals. For instance, the following two published studies were funded in whole or in part under these grants and explicitly mention the creation or use of the videographic records that are the subject of PETA’s public records request:
x Madrid JE, Oztan O, Sclafani V, …Capitanio JP…Parker KJ. Preference for novel faces in male infant monkeys predicts cerebrospinal fluid oxytocin concentrations later in life. Sci Rep. 2017;7(1):12935.
x Sclafani V, Del rosso LA, Seil SK…Capitanio JP, Parker KJ. Early Predictors of Impaired Social Functioning in Male Rhesus Macaques (Macaca mulatta). PLoS ONE 2016;11(10):e0165401.
Given that the requested videographic records pertaining to NIH grants R01HD087048 and R21HD079095 are part of two published and finalized studies, not, as the University claims, parts of studies which are “ongoing and are not yet published” or parts of research projects which “have not yet been published,” the University’s purported rationale for withholding these records under Section 6255’s catch-all exemption is without merit. Therefore, pursuant to California law, the University must either produce the requested records without delay, or provide sufficient
3
justification for its continued withholding. See Rogers v. Superior Court, 23 Cal.Rptr.2d 412, 415 (Cal. Ct. App. 1993) (“The [Public Records] Act contains a number of exemptions from disclosure. Because of the strong public policy in favor of disclosure of records, such records must be disclosed unless they come within one or more of the categories of documents exempt from compelled disclosure. These exemptions are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed.” (citations omitted)). Furthermore, the public interest is best served by requiring the disclosure of research data, not allowing for secrecy. The ultimate purpose of academic research is to try to find and share truths that have been discerned through reproducible and systematic research. Concealing research data obfuscates this process and sows mistrust and public doubt in the scientific process. Transparency is not at odds with academic freedom, but rather a necessary precondition. This principle of transparency in research undergirds the University of California’s own Presidential Open Access Policy, enacted October 23, 2015, which states that the University is “committed to disseminating its research and scholarship as widely as possible” and that “wide dissemination” confers social benefits, including “greater recognition, more thorough review, consideration, and critique”.2 Under the federal Freedom of Information Act, upon which California’s Public Records Act was modeled, exemptions are narrowly construed and agencies must submit detailed affidavits explaining why a particular withholding is justified under an enumerated exemption. See Bd. Of Trs. of Cal. State Univ. v. Superior Court, 34 Cal.Rptr.3d 82, 86 (Cal. Ct. App. 2005) (noting that California’s Public Records Act is modeled on the federal Freedom of Information Act); Landfair v. U.S. Dep’t of Army, 645 F.Supp. 325, 327 (D.D.C. 1986) (noting that the target agency “must show that each identifiable document [it withholds] is wholly exempt from FOIA’s inspection requirements” and that “the agency must sustain its burden through the submission of detailed affidavits which identify the documents at issue and explain why they fall under the claimed exemptions.” (quotation marks and citations omitted)). Since the University’s arguments with respect to its withholdings under Section 6255 are undercut by the existence of published studies based on the requested videographic records, the University has not met its burden of proof to demonstrate a “clear overbalance on the side of confidentiality” under Section 6255’s balancing test. Michaelis, Montanari & Johnson v. Superior Court, 44 Cal.Rptr.3d 663, 667 (Cal. 2006).
B. The University’s Search and/or Justification for Withholding Records Related to Grants R01HD053555 and R24OD010962 is Seemingly Inadequate
The University’s search and/or response for videographic records pertaining to NIH grants R01HD053555 and R24OD010962 appears to have been inadequate. With respect to grant 2 Office of Scholarly Communication – University of California, UC Presidential Open Access Policy (Oct. 23, 2015), https://osc.universityofcalifornia.edu/open-access-policy/policy-text/presidential/.
4
R01HD053555, the University produced only four videos depicting titi monkeys in a natural family grouping. With respect to grant R24OD010962, the University produced only two videos―one depicting a rhesus monkey responding to a video playback test, and another depicting the contents of a preferential look test given to primates, but which does not contain any footage of the primates themselves responding to the test. Based on a review of currently-published experiments partially funded under these two grants, it seems highly unlikely that the University has provided PETA with all the responsive videos relating to these two grants. Specifically, the following published experiments were funded in part under grant R01HD053555:
x Maninger N, Mendoza SP, Williams DR…Bales KL. Imaging, Behavior and Endocrine Analysis of "Jealousy" in a Monogamous Primate. Front Ecol Evol. 2017 Oct;5.
x Larke RH, Toubiana A, Lindsay KA, Mendoza SP, Bales KL. Infant titi monkey behavior in the open field test and the effect of early adversity. Am J Primatol. 2017 Sep;79(9).
x Larke RH, Maninger N, Ragen BJ, Mendoza SP, Bales KL. Serotonin 1A agonism
decreases affiliative behavior in pair-bonded titi monkeys. Horm Behav. 2016 Nov;86:71-77.
In light of the multiple published experiments funded by grant R01HD05355, it seems highly likely that more than four videos exist and, if so, they must be produced in accordance with California law. City of San Jose v. Superior Court, 389 P.3d 848, 860 (Cal. 2017) (the University is required to craft searches that are “reasonably calculated to locate responsive documents.”). Additionally, it is unclear whether the University located and produced all responsive videos related to R24OD010962. For example, the two above-referenced published experiments in Section A relating to Parker’s grants, R01HD087048 and R21HD079095 (“Parker Grants”), were also funded in part under grant R24OD010962. In light of this overlap and the dual-funding of experiments, it is unclear whether the University located all experiments funded with R24OD010962. It is also unclear whether there are videos that were funded by both the Parker Grants and R24OD010962 which were withheld. If so, the University’s response is insufficient and at odds with California law because it does not make clear what material was specifically withheld and the reason for withholding. See e.g., Braun v. City of Taft, 201 Cal.Rptr. 654, 661 (Cal. Ct. App. 1984) (“The burden of demonstrating a need for nondisclosure is upon the agency claiming the right to withhold the information.”).
Conclusion
For the above-stated reasons, PETA respectfully requests that the University: (1) provide sufficient justification for its withholding of videographic records relating to grants R01HD087048 and R21HD079095 or immediately produce the withheld videos in accordance
5
with California law; and (2) conduct another search for videographic records pertaining to grants R01HD053555 and R24OD010962 and provide sufficient justification for any and all withholdings of videographic records pertaining to these grants. If you have any questions, please contact me at 303-895-8613 or [email protected]. Very truly yours,
Lindsay Waskey Counsel
Exhibit D
From: Public Records <[email protected]>
Sent: Monday, November 5, 2018 11:39 AM
To: David Schwartz
Cc: Public Records
Subject:RE: Follow-Up on Public Records Request
Follow Up Flag: Copied to Worldox (Client Matter\02\R-00146\CORR\00322525.MSG)
Good morning Mr. Schwartz,
Your request for reconsideration is still under review. We will contact with our findings once our review
is complete.
Thank you,
Heather
Heather Urzua
Information Practices Analyst
Office of the Campus Counsel
Offices of the Chancellor & Provost
University of California
One Shields Avenue
Davis, CA 95616-8558
From: David Schwartz <[email protected]>
Sent: Monday, October 29, 2018 1:09 PM
To: Public Records <[email protected]>
Subject: RE: Follow-Up on Public Records Request
Good afternoon, Heather,
Does the University have any update as to its response to my letter dated October 11?
Best,
David
David Schwartz, Esq.
Legal Fellow | PETA Foundation
1536 16th Street NW
Washington, DC 20036
(202) 540-2190
This message may be protected by the attorney-client privilege and/or the attorney work product
doctrine. If you believe that you received this message in error, please reply to the sender that it
has been sent in error and delete the message. Thank you.
From: David Schwartz
Sent: Monday, October 22, 2018 9:12 AM
To: 'Public Records' <[email protected]>
Subject: RE: Follow-Up on Public Records Request
Hello Heather,
Thank you for the update. Looking forward to hearing back from you soon.
Best,
David
David Schwartz, Esq.
Legal Fellow | PETA Foundation
1536 16th Street NW
Washington, DC 20036
(202) 540-2190
This message may be protected by the attorney-client privilege and/or the attorney work product
doctrine. If you believe that you received this message in error, please reply to the sender that it
has been sent in error and delete the message. Thank you.
From: Public Records <[email protected]>
Sent: Friday, October 19, 2018 6:04 PM
To: David Schwartz <[email protected]>
Cc: Public Records <[email protected]>
Subject: RE: Follow-Up on Public Records Request
Dear Mr. Schwartz,
The University has received your request for a redetermination related to your recent CPRA request. The
request will be reviewed by campus counsel, and we will contact you with our findings.
Thank you,
Heather
Heather Urzua
Information Practices Analyst
Office of the Campus Counsel
Offices of the Chancellor & Provost
University of California
One Shields Avenue
Davis, CA 95616-8558
From: David Schwartz <[email protected]>
Sent: Thursday, October 11, 2018 7:23 AM
To: Public Records <[email protected]>
Subject: Follow-Up on Public Records Request
Dear Ms. Urzua,
On behalf of People for the Ethical Treatment of Animals, Inc. (PETA), please find attached a copy of a
letter from my colleague, Ms. Lindsay Waskey, seeking clarification of the University’s response to a
public records request submitted by PETA on November 6, 2017. Also attached for your reference is a
true and correct copy of the November 6, 2017 request.
Please do not hesitate to contact me or Ms. Waskey if you have any questions concerning this follow-up
letter.
Thank you very much for your time and attention to this important matter.
Very truly yours,
David
David Schwartz, Esq.
Legal Fellow | PETA Foundation
1536 16th Street NW
Washington, DC 20036
(202) 540-2190
This message may be protected by the attorney-client privilege and/or the attorney work product
doctrine. If you believe that you received this message in error, please reply to the sender that it
has been sent in error and delete the message. Thank you.
Exhibit E
From: David Schwartz <[email protected]> Sent: Monday, October 29, 2018 1:09 PM To: Public Records <[email protected]> Subject: RE: Follow-Up on Public Records Request Good afternoon, Heather, Does the University have any update as to its response to my letter dated October 11? Best, David David Schwartz, Esq. Legal Fellow | PETA Foundation 1536 16th Street NW Washington, DC 20036 [email protected] (202) 540-2190 This message may be protected by the attorney-client privilege and/or the attorney work product doctrine. If you believe that you received this message in error, please reply to the sender that it has been sent in error and delete the message. Thank you.
Exhibit F
From: Public Records <[email protected]>
Sent: Monday, November 5, 2018 11:39 AM
To: David Schwartz
Cc: Public Records
Subject:RE: Follow-Up on Public Records Request
Follow Up Flag: Copied to Worldox (Client Matter\02\R-00146\CORR\00322525.MSG)
Good morning Mr. Schwartz,
Your request for reconsideration is still under review. We will contact with our findings once our review
is complete.
Thank you,
Heather
Heather Urzua
Information Practices Analyst
Office of the Campus Counsel
Offices of the Chancellor & Provost
University of California
One Shields Avenue
Davis, CA 95616-8558
From: David Schwartz <[email protected]>
Sent: Monday, October 29, 2018 1:09 PM
To: Public Records <[email protected]>
Subject: RE: Follow-Up on Public Records Request
Good afternoon, Heather,
Does the University have any update as to its response to my letter dated October 11?
Best,
David
David Schwartz, Esq.
Legal Fellow | PETA Foundation
1536 16th Street NW
Washington, DC 20036
(202) 540-2190
This message may be protected by the attorney-client privilege and/or the attorney work product
doctrine. If you believe that you received this message in error, please reply to the sender that it
has been sent in error and delete the message. Thank you.
From: David Schwartz
Sent: Monday, October 22, 2018 9:12 AM
To: 'Public Records' <[email protected]>
Subject: RE: Follow-Up on Public Records Request
Hello Heather,
Thank you for the update. Looking forward to hearing back from you soon.
Best,
David
David Schwartz, Esq.
Legal Fellow | PETA Foundation
1536 16th Street NW
Washington, DC 20036
(202) 540-2190
This message may be protected by the attorney-client privilege and/or the attorney work product
doctrine. If you believe that you received this message in error, please reply to the sender that it
has been sent in error and delete the message. Thank you.
From: Public Records <[email protected]>
Sent: Friday, October 19, 2018 6:04 PM
To: David Schwartz <[email protected]>
Cc: Public Records <[email protected]>
Subject: RE: Follow-Up on Public Records Request
Dear Mr. Schwartz,
The University has received your request for a redetermination related to your recent CPRA request. The
request will be reviewed by campus counsel, and we will contact you with our findings.
Thank you,
Heather
Heather Urzua
Information Practices Analyst
Office of the Campus Counsel
Offices of the Chancellor & Provost
University of California
One Shields Avenue
Davis, CA 95616-8558
From: David Schwartz <[email protected]>
Sent: Thursday, October 11, 2018 7:23 AM
To: Public Records <[email protected]>
Subject: Follow-Up on Public Records Request
Dear Ms. Urzua,
On behalf of People for the Ethical Treatment of Animals, Inc. (PETA), please find attached a copy of a
letter from my colleague, Ms. Lindsay Waskey, seeking clarification of the University’s response to a
public records request submitted by PETA on November 6, 2017. Also attached for your reference is a
true and correct copy of the November 6, 2017 request.
Please do not hesitate to contact me or Ms. Waskey if you have any questions concerning this follow-up
letter.
Thank you very much for your time and attention to this important matter.
Very truly yours,
David
David Schwartz, Esq.
Legal Fellow | PETA Foundation
1536 16th Street NW
Washington, DC 20036
(202) 540-2190
This message may be protected by the attorney-client privilege and/or the attorney work product
doctrine. If you believe that you received this message in error, please reply to the sender that it
has been sent in error and delete the message. Thank you.
Exhibit G
From: Jeremy Beckham [email protected]: Request from PETA re Videotapes Connected to Grant R01HD071998
Date: December 13, 2018 at 12:39 PMTo: [email protected]
December 13, 2018 Office of the Campus CounselUniversity of California, DavisOne Shields AvenueDavis, CA 95616 Via e-mail: [email protected] Dear Public Records Officer: I am submitting this request for public information on behalf of People for the Ethical Treatmentof Animals (PETA) pursuant to California’s Public Records Act, §§ 6250-6277. For the period from January 1, 2012, to the present, PETA hereby requests the following publicrecords from the University of California, Davis (UCD):
· All videographic records related to primate research carried out by UC-Davis facultymember Dr. Karen Bales (Neuroscience and Behavior Unit) and funded by NationalInstitutes of Health grant: R01HD071998 (“Effects of Chronic Intranasal Oxytocin,”held by PI Bales).
As provided in the open records law, Sec. 6253(c), I will expect your response within ten (10)business days. If you choose to deny this request, please provide a written explanation for thedenial including a reference to the specific statutory exemption(s) upon which you rely. Also,please provide all segregable portions of otherwise exempt material. PETA is a non-profit public interest animal protection organization whose federal tax-exemptnumber is 52-1218336. As such, we request that a non-profit fee waiver be applied to our request.PETA has no commercial interest in the records requested but seeks them strictly in an effort toensure the public is fully informed about operations and regulations involving the use of animalsin laboratories (an issue of well-established public importance). If the foregoing request for a non-profit fee waiver is denied, and fees are expected to exceed $50.00, please notify me by telephoneto this effect before this disclosure request is processed. If you have any questions about our request, please contact me via telephone at 801-994-6730 orvia e-mail [email protected]. Thank you very much for your kind assistance with this matter. Sincerely, Jeremy Beckham, MPA, MPH, CPHResearch AssociateLaboratory Investigations DepartmentPETA501 Front St.Norfolk, VA 23510385-227-7034 (m.) | 801-994-6730 (landline)
Exhibit H
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Jeremy Beckham
From: Public Records <[email protected]>Sent: Friday, December 21, 2018 1:38 PMTo: Jeremy BeckhamCc: Public RecordsSubject: RE: Request from PETA re Videotapes Connected to Grant R01HD071998
Good afternoon Mr. Beckham, This letter is to acknowledge your request under the California Public Records Act (CPRA) received December 13th, 2018. Please see the below information pertaining to your request:
• All videographic records related to primate research carried out by UC-Davis faculty member Dr. Karen Bales (Neuroscience and Behavior Unit) and funded by National Institutes of Health grant: R01HD071998 (“Effects of Chronic Intranasal Oxytocin,” held by PI Bales).
The University's grant R01HD071998, related to primate research, is exempt from disclosure under the California Public Records Act (PRA) pursuant to Government Code Section 6255, as the public interest served by withholding records for studies that are ongoing and are not yet published, clearly outweighs the public interest served by disclosure of the records. The courts have recognized a "researcher's privilege, based upon a strong Constitutional interest in the right of scholars to conduct research without interference, an aspect to the academic freedom recognized as "special concern of the First Amendment." The Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978). The courts have applied these Constitutional principles in recognizing a Constitutionally-based privilege that protects scholars from having to disclose information that may lead to interference with their research activities. See, e.g. Dow Chemical v. Allen, 672 F.2d 1262 (7th Cir. 1982); Richards of Rockford v. Pacific Gas & Elec., 71 F.R.D. 388 (N.D. Cal. 1976). The courts have recognized that premature disclosure of proposed or on-going research may result in a chilling effect on academic research, noting the possibility for misappropriation of research results, the fear of additional disclosure in the future, and of potentially severe harm to the integrity of the research and to the investigator's careers. Dow Chemical, supra, at 1276. The University has also withheld records related to research projects that have not yet been published, also pursuant to Government Code Section 6255. Premature disclosure of data may negatively impact researchers’ ability to publish or patent the results of their work, including letting someone else “scoop” the results by publishing first, which can in turn negatively affect their careers. Disclosure of researchers’ pre-publication data and related records of their work risks confusing the public with premature exposure to thoughts that had not been fully settled and data that had not been subjected to the scrutiny imposed before data and associated analysis appear in peer-reviewed publications or published books. It could also lead to publication of preliminary and unverified data, which may be contrary to the public interest in the dissemination of good science. Non-disclosure protects the fruits of the researchers’ labor until they are ready to see the light of day, on terms set by the researchers themselves, thereby safeguarding the integrity of their work and their reputations, and providing the needed incentive to continue to pursue their chosen career for the benefit of the State.
With the delivery of this email, we are considering your request closed. Should you have any questions or wish to request additional records please contact [email protected] or call (530) 754-6295.
Thank you, Heather
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Heather Urzua Information Practices Analyst Office of the Campus Counsel Offices of the Chancellor & Provost University of California One Shields Avenue
Davis, CA 95616-8558
From: Jeremy Beckham <[email protected]> Sent: Thursday, December 13, 2018 12:39 PM To: Public Records <[email protected]> Subject: Request from PETA re Videotapes Connected to Grant R01HD071998 Importance: High December 13, 2018 Office of the Campus Counsel University of California, Davis One Shields Avenue Davis, CA 95616 Via e-mail: [email protected] Dear Public Records Officer: I am submitting this request for public information on behalf of People for the Ethical Treatment of Animals (PETA) pursuant to California’s Public Records Act, §§ 6250-6277. For the period from January 1, 2012, to the present, PETA hereby requests the following public records from the University of California, Davis (UCD):
• All videographic records related to primate research carried out by UC-Davis faculty member Dr. Karen Bales (Neuroscience and Behavior Unit) and funded by National Institutes of Health grant: R01HD071998 (“Effects of Chronic Intranasal Oxytocin,” held by PI Bales).
As provided in the open records law, Sec. 6253(c), I will expect your response within ten (10) business days. If you choose to deny this request, please provide a written explanation for the denial including a reference to the specific statutory exemption(s) upon which you rely. Also, please provide all segregable portions of otherwise exempt material. PETA is a non-profit public interest animal protection organization whose federal tax-exempt number is 52-1218336. As such, we request that a non-profit fee waiver be applied to our request. PETA has no commercial interest in the records requested but seeks them strictly in an effort to ensure the public is fully informed about operations and regulations involving the use of animals in laboratories (an issue of well-established public importance). If the foregoing request for a non-profit fee waiver is denied, and fees are expected to exceed $50.00, please notify me by telephone to this effect before this disclosure request is processed. If you have any questions about our request, please contact me via telephone at 801-994-6730 or via e-mail [email protected]. Thank you very much for your kind assistance with this matter. Sincerely,
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Jeremy Beckham, MPA, MPH, CPH Research Associate Laboratory Investigations Department PETA 501 Front St. Norfolk, VA 23510 385-227-7034 (m.) | 801-994-6730 (landline)