Access to Public Information, Privacy, Data Protection and Retention
European Commission v. Bavarian Lager
Decision Pending Mixed Outcome
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An individual requested the release of license information of employees at a local erotic entertainment club, and employees filed suit to prevent this disclosure. The court considered whether the plaintiff would suffer harm if the records were disclosed and balanced this harm against the requesting individual’s interest in disclosure. The court enjoined the County and County Auditor, Julie Anderson, from releasing this information.
This was appealed to the Ninth Circuit on November 2, 2015. The appeal was dismissed the appeal on May 17, 2016 with no opinion.
Dreamgirls at Fox, an “erotic dance studio,” is owned and operated by Dreamgirls of Tacoma LCC, the Plaintiff. Under the Pierce County Code (PCC), §§5.14.100 and 110, dancers and managers working at “erotic dance studio” must apply for, obtain, and maintain licenses, which are issued by the County Auditor. In September 2014, David Van Vleet made a written request to the Auditor for disclosure of the licenses of those working at Dreamgirls. Plaintiffs Jane Roe 1 and 2, a manger and dancer at Dreamgirls respectively, opposed the disclosure of their licenses. As the court noted, dancers at Dreamgirls used stage names, which indicated that they did not want patrons to know their real names.
The license disclosure includes the licensee’s true name, physical description, photograph, and birthdate. Per the Washington Public Records Act (PRA), the licenses are considered “public records.” Under the PRA, agencies, including the Auditor’s Office, are required to disclosure public records when requests for the records are received. Statutorily, there are some public records that are exempt from disclosure.
After receiving Van Vleet’s request for disclosure, the Auditors Office informed the plaintiffs of the pending disclosure. Unless the court issued an order to the contrary, the Auditors Office would be required to disclose the licenses. The plaintiffs filed a suit and named the County Auditor, Pierce County, and Van Vleet as defendants, and they also filed a motion for a preliminary injunction. The court issued a temporary restraining order pending a hearing.
On August 10, 2015, the Court issued an Order granting the Plaintiff’s Motion for Summary Judgment and granting the Plaintiff’s request for a permanent injunction.
The court considered whether the plaintiffs’ First Amendment rights would be infringed upon by the disclosure of the records, and whether the plaintiff would suffer harm if the records were disclosed. With concerns about harassment and threats, the court determined that the plaintiffs’ physical safety could be threatened if this private information was given to Van Vleet, who could easily disseminate this information.
The court then considered the defendants’ interests in the disclosure of this information. The court found that Anderson and Pierce County already have access to information and would not gain anything from the information’s release. The court also determined that Van Vleet did not have a legitimate interest in this information and, therefore, he would not be harmed if the information was not disclosed. The court also noted the public’s interest in the protection of its privacy interest and First Amendment rights. Accordingly, the court enjoined Anderson and Pierce County from releasing this information.
The Court examined whether the constitution afforded protections to the Plaintiff’s that would exempt disclosure under the Public Records Act. Plaintiff’s argues that exotic dancing is protected as expression under the First Amendment and by requiring disclosure this will have a chilling effect on the Plaintiff’s rights to freedom of expression. The Court agreed noting that exotic dance has been recognized as a protected form of freedom of expression and by requiring disclosure of this information, this would have a chilling effect on the dancers. Therefore, the Court awarded Plaintiff’s a permanent injunction, finding “no other remedy is available to Plaintiffs, the balance of equities favors them, and the public interest would not be disserved.” Pg. 7. However, the Court only awarded an injunction as it applied to these specific Plaintiffs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome. Although it protects the First amendment rights of the Plaintiff’s, it also restricts the public’s right to information. On balance, the Court here found that the Plaintiff’s rights to freedom of expression were outweighed by the Defendant’s need for disclosure of their information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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