Stop Animal Exploitation Now Lawsuit Against UCLA Animal Research

Shelley Rizzotti (CABN 269769)
1 Shelley Rizzotti, Attorney At Law

3500 W. Olive Avenue, 3rd Floor
2 Burbank, CA 91505
T: 818.641.1692
3
Jeff Pierce (CABN 293085)
4
Carter Dillard (CABN 206276)
5 ANIMAL LEGAL DEFENSE FUND
170 E. Cotati Avenue
6 Cotati, CA 94931
T: 707.795.2533
7 F: 707.795.7280
8
Attorneys for Petitioner
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10
11 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES
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STOP ANIMAL EXPLOITATION NOW, a Case No.
14 nonprofit corporation located in Ohio,
VERIFIED PETITION FOR WRIT OF
15 Petitioner, MANDATE [Code of Civ. Proc. § 1085]
AND COMPLAINT FOR INJUNCTIVE
16
v. AND DECLARATORY RELIEF [Gov’t
17 Code § 6250, et seq.]
THE REGENTS OF THE UNIVERSITY
18 OF CALIFORNIA; and MARY ANNE
DAVIES, in her capacity as PUBLIC
19 RECORDS ANALYST,
20
Respondents.
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VERIFIED PETITION FOR WRIT OF MANDATE AND
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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1 INTRODUCTION
2 1. This is an action to compel the Regents of the University of California and its
3 agents (collectively “the Regents”) to produce records of critical public interest in accordance
4 with clearly established policy and prior court orders under the California Public Records Act
5 (CPRA). Among other biomedical research it performs, the University of California, Los
6 Angeles (UCLA), has turned monkeys into methamphetamine addicts. In asking for public
7 records like veterinary care logs and necropsy reports, SAEN wants to ensure that the Regents
8 and its agents treat its primate research subjects according to the protections required by law.
9 2. The CPRA “embodies a strong policy in favor of disclosure of public records, and
10 any refusal to disclose public information must be based on a specific exception to that policy.”
11 Cal. State Univ. v. Sup. Ct., 90 Cal. App. 4th 810, 831 (2001) (citing Lorig v. Medical Board, 78
12 Cal. App. 4th 462, 467 (2000); Cook v. Craig 55 Cal. App. 3d 773, 781 (1976)). Fundamentally,
13 the CPRA reflects the principle that government serves the people, and recognizes that
14 transparency helps to ensure that government fulfills its mandates lawfully. Public institutions
15 cannot decide for the people what is good, and what is not good, for the people to know in
16 executing the mandate of self-governance. The CPRA grants to the public the power to review
17 government decision-making, government behavior, and government expenditure.
18 3. The public holds sacrosanct the humane treatment of both people and animals.
19 That the taxpaying public should oppose the expenditure of tax dollars on inflicting needless
20 suffering upon animals hardly bears remarking. That is especially true where those animals
21 possess highly developed central nervous systems like the nonhuman primates held by the
22 Regents who are the subjects of the present public records controversy. The public must
23 safeguard its ability to oversee state actors to the highest possible degree in order to ensure that
24 state actors operate within the legal scheme that protects animals, and to hold state actors
25 accountable when they violate that scheme. Access to university records that reveal information
26 about the housing and experimentation on nonhuman primates is the primary method whereby
27 the public accomplishes that oversight.
28 1
1 4. In this case, Petitioner Stop Animal Exploitation Now! (SAEN) sought the
2 production of records regarding the use of nonhuman primates in laboratory experimentation at
3 UCLA. SAEN’s CPRA request attempts to discern whether UCLA spends taxpayer money to
4 inflict needless suffering upon–that is, behaves unlawfully toward–the primates in their care and
5 to enjoin such lawless behavior and lawless expenditure if UCLA does. SAEN routinely sends
6 evidence of legal violations to authorities with power to enforce laws protecting animals.
7 5. The Regents entirely denied SAEN’s request, citing as justification the “public
8 interest” in the safety of the experimenters. SAEN acknowledges that important public interest
9 and has indicated from the outset of this controversy its willingness to compromise with UCLA
10 on the appropriate redaction of its public records. Specifically, SAEN proposed a plan allowing
11 the Regents to withhold the identity of any individual experimenters by encoding their identities
12 with a number system. The Regents denied SAEN’s public records request, declined even to
13 acknowledge SAEN’s proposal, and declined to work with SAEN to comply with the CPRA and
14 to protect its employees simultaneously.
15 6. The Regents’ outright refusal to produce records with encoded identities violates
16 clearly established public records policy and court orders involving the Regents itself. Notably,
17 the Appellate Court of California, First District, ordered the Regents of the University of
18 California to release similar information to another animal welfare organization under
19 circumstances virtually identical to those at issue here. In Defense of Animals v. Superior Court
20 of San Francisco County & Regents of the University of California, et al., Real Parties in
21 Interest, A095716, Cal. Ct. App. (1st Dist., 2001).1 In that opinion, the First District directed the
22 trial court to order the Regents to produce primate research records utilizing a codification
23 system whereby the redacted names of researchers would be replaced by a numeric index. See id.
24 Although the Regents were previously ordered to release encoded records they now refuse to
25 produce any records at all. As SAEN argues below, Respondents’ reliance on the catchall
26
1
See Cal. Rules of Court 8.115(b), allowing citation to unpublished cases of the California Court of Appeal or
27 superior court appellate division where such opinion “is relevant under the doctrines of law of the case, res judicata,
or collateral estoppel”.
28 2
1 exemption is misplaced. In addition, Respondents’ ability to withhold the records at issue here is
2 collaterally estopped and Respondents are barred from relitigating this issue.
3 7. Independent of estoppel, the names of the Regents’ researchers using animals in
4 their experiments can be gleaned from any of several online medical journals where these
5 researchers openly publish their findings. If the Regents can benefit reputationally and
6 financially by openly publishing their research findings and conclusions, it should not enjoy the
7 privilege of secrecy respecting the conditions endured by the subjects of such research. In light
8 of this already-public information, the Regents’ claim to SAEN that “the release of these types of
9 records have led to violent and criminal acts against the University’s employees” cannot be
10 upheld since activists unaffiliated with SAEN and its representation have, unfortunately, targeted
11 the Regents’ employees without access to the public records SAEN lawfully seeks.
12 8. Accordingly, SAEN seeks a writ of mandate and other relief directing the Regents
13 to produce the requested public records while allowing for suitable redaction of personally
14 identifiable information.
15
16 JURISDICTION AND VENUE

17 9. This Court has subject matter jurisdiction pursuant to Code of Civil Procedure
18 section 1085 and Government Code section 6258 of the CPRA, providing that any person may
19 institute proceedings for injunctive or declarative relief, or for writ of mandate, to enforce the
20 CPRA.
21 10. Venue is proper in this Court under Government Code section 6259 because, on
22 information and belief, the records or some part thereof are situated in Los Angeles County.
23 Additionally, venue is proper in this Court under Code of Civil Procedure section 393 because
24 the acts and omissions complained of herein occurred in Los Angeles County. The Regents is
25 also partially located in this county via its campus at UCLA, thereby giving rise to venue under
26 Code of Civil Procedure section 395.
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1 PARTIES
2 11. SAEN, Petitioner, is a nonprofit animal welfare organization based in Ohio and
3 dedicated to ending the abuse of animals in research facilities. SAEN advances its mission
4 through public outreach and by notifying appropriate authorities of animal welfare violations
5 and calling for enforcement action. SAEN’s members and donors expect and demand that it
6 investigate and publicize cruelty to animals in research laboratories. Following proper methods
7 for requesting records under the CPRA, SAEN sought, and was denied, public records relating
8 to the Regents’ use of animals in laboratory experimentation. This denial not only deprives
9 SAEN of information it is entitled to under the CPRA but also has caused and continues to
10 cause SAEN to spend its limited resources investigating, publicizing, and calling for correction
11 of any unlawful experimentation practices.
12 12. The Regents of the University of California, Respondent, is a corporation
13 empowered under the California Constitution to administer the several universities including the
14 University of California, Los Angeles (UCLA). UCLA provides higher education to more than
15 40,000 undergraduate and graduate students. UCLA receives as much funding for research as
16 any of the nation’s five most-funded universities, and supports substantial research in the areas
17 of medicine, neuroscience, addiction, genetics, anthropology, evolution, and behavior. UCLA
18 uses approximately one-fourth of all grant money it receives – amounting to a minimum of
19 $200 million per annum – in studies involving animals. UNIVERSITY OF CALIFORNIA, LOS
20 ANGELES, OFFICE OF RESEARCH ADMINISTRATION (ORA), Award Dollars with Animal Subjects
21 by Fiscal Year, available at
22 http://portal.research.ucla.edu/PortalCharts/AnimalSubjectAwards.aspx. UCLA recently admitted
23 to using 150,000 animals in experiments in a single year, including, as of two years ago, 21
24 nonhuman primates, and nearly double that previously. See ROBIN WILSON, One Animal
25 Researcher Refuses to Hide, Feb. 20, 2011, available at
26 http://www.bri.ucla.edu/bri_weekly/news_20110222.asp. Specifically, UCLA uses nonhuman
27
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1 primates especially for neurological and addiction experiments, for example by addicting vervet
2 monkeys to methamphetamines. Id.
3 13. Mary Anne Davies, Respondent, is the Public Records Analyst employed in the
4 Records Management and Information Practices at UCLA who denied SAEN’s public records
5 request.
6 14. Except where otherwise specified, all references to “the Regents” throughout this
7 petition include both UCLA and Ms. Davies, who are both agents of the Regents of the
8 University of California.
9
10 STATEMENT OF FACTS
11 15. On August 29, 2013, SAEN submitted a request for specific records pursuant to
12 the CPRA. Attached hereto as Exhibit 1 is a true and accurate copy of that request. In its CPRA
13 request SAEN sought the following documents:

1. Full veterinary treatment records for all primates used in
14
experimentation at the University of California Los Angeles
15 (UCLA) during the period of January 1, 2012 through the present,
including daily care logs and necropsy reports.
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2. Copies of all photographs taken of primates at UCLA during the
17 period of January 1, 2012 through the present.
18
Exhibit 1.
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16. SAEN anticipated that Respondents would seek to protect the identity of their
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laboratory researchers. SAEN therefore offered from the outset of this controversy the following
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concession:
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In order to expedite the production of documents, SAEN agrees in advance to the
23 redaction of the names and personal information of any students or employees of
UCLA from these documents, as well as, any information disclosing the locations
24 where research is conducted on the university’s campus.
25
Id. At the same time, SAEN emphasized its position that the CPRA’s “catchall” exemption would
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not relieve Respondents of their duty to comply with the CPRA:
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T]he “catch-all” exemption contained in California Government Code 6255(a)
1
does not warrant withholding the requested documents. In the past, § 6255(a) has
2 been invoked to stop the disclosure of information that would place an individual
in danger. However, this exception is construed narrowly by California courts and
3 requires that an agency justify the need for non-disclosure of particular
information. New York Times v. Superior Court, 218 Cal. App. 3d 1579, 1585
4 (1990). Thus, the interest in protecting UCLA’s students and employees–while
valid–does not allow the university to withhold more information than is
5
necessary to ensure their safety. In addition, courts applying § 6255(a) have taken
6 a hard look at the public agency’s practical ability to separate sensitive
information from information that should be public. See City of San Jose v.
7 Superior Court, 74 Cal. App. 4th 1008 (1999); See also American Civil Liberties
Union v. Deukmejian, 32 Cal. 3d 440 (1982); See also Times Mirror Co. v.
8 Superior Court, 53 Cal. 3d 1325 (1991). Generally, these cases support the rule
that ‘an agency cannot justify withholding an entire document simply by showing
9
that it contains some exempt material’ and that the CPRA ‘require[s] segregation
10 of exempt from nonexempt materials contained in a single document.’ Northern
Cal. Police Practices Project v. Craig, 90 Cal. App. 3d 116, 123-124 (1979).
11 Therefore, the University of California is obliged to provide the requested care
logs and necropsy reports if it is at all possible to segregate the pertinent
12 information in those documents from other data that could place an individual in
danger. . . .
13
14 SAEN understands UCLA’s concern for protecting the safety of researchers

conducting animal experiments and does not ask the university to disclose
15 information that truly poses a threat to those individuals. However, the Citizens of
California have a compelling interest in protecting animals from cruel treatment.
16 This interest necessitates the clear existence of safety concerns in order to justify
17
any withholding of records. Recognizing both of these interests, SAEN is open to
working with UCLA to ensure the anonymity of UCLA’s employees and students
18 during disclosure of records regarding the care and treatment of animals.
19
Id.
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17. On September 6, 2013, Respondents provisionally responded to SAEN’s public
21
records request. Attached hereto as Exhibit 2 is a true and accurate copy of that response. In its
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response, Respondents solicited additional time to fulfill SAEN’s request, citing the following
23
justifications:
24 The need to search for and collect the requested records from field facilities or
other establishments that are separate from the office processing the request. . . .
25
26 The need for consultation, which shall be conducted with all practicable speed,
with two or more components of the agency having substantial subject matter
27 interest therein.
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1 Exhibit 2.
18. On September 13, 2013, SAEN responded by email through its representation to
2
3 Respondents’ provisional response. Attached hereto as Exhibit 3 is a true and accurate copy of
4 SAEN’s correspondence. SAEN reiterated in its email its willingness to compromise with
5 Respondents:
6
The Animal Legal Defense Fund and Stop Animal Exploitation Now would like to
7 reiterate our willingness to work with the University of California Los Angeles to
ensure the safety and anonymity of UCLA’s employees and students during
8 disclosure of requested public records regarding the care and treatment of
research animals. It is of note that in similar circumstances in the past other
9 University of California Schools have established coded systems replacing
researchers names with numeric identifiers. This method allowed for the release
10
of public documents while mitigating privacy and safety concerns for the
11 individuals involved in animal experimentation.
12 Exhibit 3.
13 19. On September 20, 2013, Respondents, without replying to SAEN’s email of
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September 13, 2013, formally responded to SAEN’s public records request. Attached hereto as
15
Exhibit 4 is a true and accurate copy of that response. Despite SAEN’s proposed solution to the
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problem it had anticipated, Respondents indicated a wholesale unwillingness to comply with the
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requirements of the CPRA by producing responsive, nonexempt records:
19 UCLA has determined that, pursuant to California Government Code Section

6255, the public interest served by not disclosing the requested records clearly
20 outweighs the public interest served by disclosure of the records, being that the
release of these types of records have led to violent and criminal acts against the
21 University’s employees.
22
Exhibit 4.
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20. The CPRA does not require any attempt to resolve disputes informally before
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seeking judicial intervention. SAEN nevertheless attempted informally to resolve Respondents’
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refusal to comply with its records request. Attached hereto as Exhibit 5 is a true and accurate
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1 copy of SAEN’s informal effort to cooperate with Respondents, to which Respondents never
2 replied. Lacking another remedy, SAEN now seeks judicial intervention.
4 FIRST CAUSE OF ACTION

WRIT OF MANDATE
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REQUIRING THE PRODUCTION OF DOCUMENTS UNDER THE CPRA
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(Government Code §§ 6258 and 6259)
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Against All Respondents
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21. SAEN realleges and incorporates by reference all paragraphs above and below as
9
if set forth fully herein.
10
22. Government Code section 6253, subdivision (a), of the CPRA requires that a
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public agency allow inspection of public records by any person requesting the records. It requires
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further that any reasonably segregable portion of a record be available for inspection after
13
deletion of the portions that are exempted by law. Whether a public record may contain some
14
exempt or confidential information does not justify withholding an entire document. The Regents
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asserted a privacy interest in the names of the researchers but failed to work with SAEN to
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segregate, redact, or otherwise modify the records. Instead, the Regents refused to produce any
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and all responsive information. The Regents therefore violated Government Code section 6253,
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subdivision (a), in refusing to segregate or redact its records.
19
23. Government Code section 6255 requires the Regents to justify withholding
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records by “demonstrating that the record in question is exempt under express provisions of this
21
chapter or that on the facts of the particular case the public interest served by not disclosing the
22
record clearly outweighs the public interest served by disclosure of the record.” This requirement
23
to justify any withholding is nondiscretionary. The Regents therefore violated Government Code
24
section 6255 by failing to cite specific exemptions that they believe apply to each of the records
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requested.
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1 24. The Regents abused their discretion by refusing to provide documents, or portions
2 thereof, not subject to any exemptions.
3 25. The Regents failed to carry out nondiscretionary, mandatory duties pursuant to the
4 CPRA.
5 26. The records sought by SAEN are not subject to any specific exemptions to the
6 CPRA, apart from balancing the public interest in disclosure, which is broad, against the public
7 interest in government secrecy, which is narrow.
8 27. Government Code section 6259, subdivision (a), provides that the Court shall
9 decide the case after examining the record(s) in camera, if permitted by subdivision (b) of
10 Section 915 of the Evidence Code. SAEN requests that, if necessary, the court review in camera
11 those records the Regents claim are exempt.
12 28. SAEN has no choice but to obtain the relief sought herein to vindicate its right to
13 public records under the CPRA.
14 29. SAEN has a right to obtain from the Regents public records under the CPRA.
15 30. The Regents have a duty timely to respond to requests under the CPRA, to
16 produce public records, to assist with identifying records and information that are responsive to a
17 request, and to demonstrate that the specific records in question are exempt under express
18 provisions of the CPRA.
19 31. The Regents have the ability to perform the duty that the CPRA places upon them.
20 32. SAEN and the citizens of this state do not have a plain, speedy and adequate
21 remedy in the ordinary course of law other than the relief sought in this complaint/petition in that
22 they cannot compel the Regents to comply with the law except through judicial process.
23 33. SAEN therefore requests that the court issue a writ of mandate directing
24 Respondents to comply with their obligations under the CPRA and to produce the public records
25 sought.
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SECOND CAUSE OF ACTION
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INJUNCTIVE AND DECLARATORY RELIEF
1
REGARDING NONCOMPLIANCE WITH THE CPRA
2
(Government Code §§ 6258 and 6259)
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Against All Respondents
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34. SAEN realleges and incorporates by reference all paragraphs above and below as
5
if set forth fully herein.
6
35. SAEN is entitled to a judicial determination of the applicability of collateral
7
estoppel.
8
36. SAEN requests a judicial determination that the Regents are precluded from
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relitigating whether the potential threat to university researchers allegedly posed by disclosure of
10
redacted records constitutes a public interest in secrecy that “clearly outweighs” the public
11
interest in disclosure of public records related to the welfare of animals used in research by
12
agents of the Regents.
13
37. Government Code section 6255 requires the Regents to justify withholding
14
records by “demonstrating that the record in question is exempt under express provisions of this
15
chapter or that on the facts of the particular case the public interest served by not disclosing the
16
record clearly outweighs the public interest served by disclosure of the record.” This requirement
17
to justify any withholding is nondiscretionary. Instead of citing specific exemptions for each
18
record, the Regents merely applied the exemption to SAEN’s entire request and ceased to
19
communicate with SAEN upon refusing to disclose any records. The Regents therefore violated
20
Government Code section 6255 by failing to cite specific exemptions to each of the records
21
requested that they believe apply.
22
38. SAEN is entitled to a judicial determination of the inapplicability of the broad
23
catchall exemption claimed by the Regents, a judicial determination of the sufficiency of the
24
encoding and redaction options, and a judicial determination of the Regents’ non-compliance
25
with the CPRA, thereby vindicating the public’s rights under the CPRA.
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1 39. SAEN is likewise entitled to injunctive relief prohibiting the Regents from
2 improperly using the broad catchall exemption to withhold all records
4 DISCOVERY
5 40. Pursuant to Code of Civil Procedure sections 2017.010, et seq., SAEN intends to
6 undertake formal discovery, including, if necessary, the depositions of percipient witnesses,
7 persons most qualified, and relevant third parties.
8 41. If necessary, SAEN will seek an order from the Court permitting such discovery.
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PRAYER FOR RELIEF
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WHEREFORE, SAEN prays for judgment against the Regents as follows:
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As to the First Cause of Action:
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1. For the issuance of a writ of mandate compelling Mary Anne Davies, the Public
14
Records Office at the University of California, Los Angeles, the University of California, Los
15
Angeles, the Regents of the University of California, and their successors to comply with each
16
of the provisions of the CPRA and to produce those records responsive to SAEN’s CPRA
17
request, and all such requests by citizens in the future.
18
2. Should the Court undertake an in camera review of the records, SAEN proposes
19
the appointment of a special master, or an independent expert, to assist the Court in the
20
assessment of the significance of the records.
21
22
As to the Second Cause of Action:
23
3. Taking judicial notice from In Defense of Animals v. Superior Court of San
24
Francisco County & Regents of the University of California, et al., Real Parties in Interest,
25
above, regarding the inability of the Regents to rely upon the catchall exemption as a means of
26
withholding the requested records and refusing to segregate nonexempt from exempt
27
information.
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1 4. Declaring that the Regents are precluded from relitigating the issue of the
2 applicability of the catchall exemption as a means of withholding the requested records and
3 refusing to segregate nonexempt from exempt information.
4 5. Declaring that the Regents violated the CPRA when they failed to demonstrate
5 adequately that the records in question were exempt under express provisions of the CPRA.
6 6. Declaring that the Regents failed to carry out their mandatory duties pursuant to
7 the CPRA when they denied the request for public records without adequate justification,
8 without willingness to accommodate SAEN’s compromise proposal, and without willingness to

9 cooperate with SAEN to render the request capable of fulfillment.
10 As to all causes of action:
11 7. Reasonable attorneys’ fees and costs of suit pursuant to Government Code
12 section 6259, Code of Civil Procedure section 1021.5, and other relevant statutes.
13 8. Other and further relief as the court may deem just and proper.
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DATED: December 18, 2013 Respectfully submitted,
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_________________________________
3 Shelley Rizzotti
Attorney for Plaintiff
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VERIFICATION
1
2 I, SHELLEY RIZZOTTI, declare as follows:

3 1. I am an attorney licensed to practice law in the State of California. I represent
4 Petitioner SAEN in this proceeding. As such, I have personal knowledge of the matters alleged in
5 this petition and have authority to make this verification.
6 2. The Petitioner is absent from the county (Los Angeles) where I have my office.
7 3. I have reviewed the foregoing petition and the matters stated in it are true of my
8 own knowledge, except as to the matters declared on information and belief, and as to those
9 matters I believe them to be true.
10 4. I declare under penalty of perjury under the laws of the State of California that the
11 foregoing is true and correct.
12 Executed this day the 18th of December, 2013, in Los Angeles County, California.
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14 _________________________________
Shelley Rizzotti
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Shelley Rizzotti (CABN 269769)

1 Shelley Rizzotti, Attorney At Law

11 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

17 government decision-making, government behavior, and government expenditure.

27 the public accomplishes that oversight.

2 production of records regarding the use of nonhuman primates in laboratory experimentation at

14 to protect its employees simultaneously.

18 California to release similar information to another animal welfare organization under

3 7. Independent of estoppel, the names of the Regents’ researchers using animals in

16 JURISDICTION AND VENUE

26 Code of Civil Procedure section 395.

11 of any unlawful experimentation practices.

12 12. The Regents of the University of California, Respondent, is a corporation

17 of medicine, neuroscience, addiction, genetics, anthropology, evolution, and behavior. UCLA

18 uses approximately one-fourth of all grant money it receives – amounting to a minimum of

21 by Fiscal Year, available at

22 http://portal.research.ucla.edu/PortalCharts/AnimalSubjectAwards.aspx. UCLA recently admitted

25 Researcher Refuses to Hide, Feb. 20, 2011, available at

26 http://www.bri.ucla.edu/bri_weekly/news_20110222.asp. Specifically, UCLA uses nonhuman

2 monkeys to methamphetamines. Id.

13 request SAEN sought the following documents:

14 SAEN understands UCLA’s concern for protecting the safety of researchers

19 UCLA has determined that, pursuant to California Government Code Section

2 replied. Lacking another remedy, SAEN now seeks judicial intervention.

4 FIRST CAUSE OF ACTION

2 thereof, not subject to any exemptions.

7 interest in government secrecy, which is narrow.

11 those records the Regents claim are exempt.

13 public records under the CPRA.

18 provisions of the CPRA.

2 improperly using the broad catchall exemption to withhold all records

6 undertake formal discovery, including, if necessary, the depositions of percipient witnesses,

7 persons most qualified, and relevant third parties.

3 refusing to segregate nonexempt from exempt information.

8 without willingness to accommodate SAEN’s compromise proposal, and without willingness to

10 As to all causes of action:

11 7. Reasonable attorneys’ fees and costs of suit pursuant to Government Code

2 I, SHELLEY RIZZOTTI, declare as follows:

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