National Zoo Cites Privacy Concerns in Its Refusal to Release Animal's Medical Records

Thousands of people have peered in on the National Zoo's PandaCam to see Tian Tian and Mei Xiang cavorting. They have surfed to the zoo Web site's ElephantCam to watch the most intimate moments between Shanti and the pachyderm's newborn calf. And they have tuned into the Naked Mole-Rat Cam to follow the subterranean rodent's tubular meanderings.

But don't ask to see their medical records. You won't get them.

The Smithsonian Institution's National Zoo has taken the position that viewing animal medical records would violate the animal's right to privacy and be an intrusion into the zookeeper-animal relationship.

The notion that animals have a right to privacy is, from a legal standpoint, odd, because courts have long held that they don't.

This all comes by way of a request for said information from Washington Post staff writer D'Vera Cohn, who recently asked the the National Zoo for animal medical records and necropsy and pathology reports from one of Washington's most renowned institutions after the death of Ryma, a beloved giraffe.

The reply came in an e-mail letter from Zoo Director Lucy Spelman. The answer was no, The Post cannot see animal medical records, only "detailed summaries prepared by the individual generating those records or reports." The reason: Releasing medical records would violate the animals' privacy rights.

The refusal to release the records wouldn't have struck a chord with Hearsay save for the novel reason, couched in Fourth Amendment vernacular, that Spelman used for rejecting Cohn's request.

"One reason [for denying the records request] is privacy," Spelman wrote. "Certainly, the privacy rules that apply to human medical records, and the physician-patient relationship, do not apply in precisely the same way to animal medicine at a public institution like the National Zoo. But we believe they do in principle."

The principle, according Spelman, a respected scholar of veterinarian medicine, is akin to the doctor-patient relationship.

"The core of veterinary medicine [as in human medicine] is the client-patient [keeper or curator-zoo animal] relationship," Spelman said. "The medical record is essentially a written history of this relationship, but it is not written in a style or format geared toward the public."

Spelman offered two other reasons for the denial: The general public is incapable of understanding the raw data; only zoo officials are capable of explaining them. And the release of information would disrupt scientific research.

Zoo spokesman Robert Hoage noted that the zoo did provide Cohn with some of the summaries from the doctors who tended to the giraffe before its death and made the pathologist available for a two-hour interview. She was also given the pathology report because, "We felt she was expert enough to understand it and do a good story."

But the zoo did not retract Spelman's reply that certain records would be withheld because of animal privacy. That position brought a near-unanimous response from lawyers and public-access experts: laughter.

"This is hogwash," said Rebecca Daugherty, an lawyer with the Reporter's Committee for Freedom of the Press in Arlington. "It is the kind of decision that ought to be thrown out with the zoo-doo they sell for your garden."

Said Charles Davis, director of the Freedom of Information Center at the University of Missouri: "You are kidding me! For the love of God, that is unbelievable. That beats anything imaginable."

Even animal-rights legal specialists were flabbergasted. "That's pretty mind-boggling," said Eric Glitzenstein, whose six-lawyer District firm, Meyer & Glitzenstein, he founded with his wife, Katherine Meyer, to focus on animal protection legal issues.

As ridiculous as lawyers universally believe the zoo's response is, there is little recourse -- aside from writing this column or going to court.

(Full disclosure: The author of Hearsay is the co-chairman of the First Amendment Committee of the journalism group, Investigative Reporters & Editors, which advocates for keeping government records open. The author also is part of a family membership to Friends of National Zoo -- at least until this column runs.)

Legal recourse is limited because of a 1998 decision by the U.S. Court of Appeals for the District of Columbia. In Dong v. Smithsonian Institution, the D.C. Circuit found that the Smithsonian was not a government agency for the purposes of the right to privacy (the one for humans). Because a similar legal definition of government agency is in the federal Freedom of Information Act (FOIA), the Smithsonian contends that it is not subject to the FOIA. The court ruled that the "agency" definition only applies to the executive branch and, "It is plain that the Smithsonian is not an establishment in the executive branch," the court said.

That's because, while receiving federal money, the Smithsonian is run by a Board of Regents, which consists of nine congressionally appointed members, six members of Congress, the vice president, and the chief justice of the United States. Congress, of course, exempted itself from the FOIA. The court said that the Smithsonian is a different sort of governmental animal.

Still, the Smithsonian often attempts to abide by the broad guidelines and spirit of the FOIA and sometimes asks information-seekers and journalists to file a FOIA request.

Hiding behind privacy rights is not a new tactic by governmental secrecy lovers.

In fact, many lawyers see a pattern.

Media lawyer Paul Watler of Jenkens & Gilchrist said his journalist clients have run into stone walls in the Bush administration. He said former attorney general Janet Reno's policy of accommodation was thrown out the window by Attorney General John D. Ashcroft, who issued a memo after Sept. 11 telling agencies that if they could scrounge up a reason under the law to deny FOIA requests, he would back them up.

Ashcroft, for example, refuses to release the names of thousands of foreign nationals detained after Sept. 11. Journalists and others want to talk to the detainees to see if they are being held in violation of their civil rights, yet Ashcroft says their names can't be released to protect their privacy.

Missouri's Davis noted that Energy Secretary Spencer Abraham's lawyers recently argued that releasing certain information about corporate executives who lobbied on the administration's energy plan would violate their privacy.

"Privacy has given government all the excuse in the world for narrowing the release of documents," Davis said.

In the case of the Smithsonian, an institution that is subject to very little oversight, said Daugherty of the reporter's committee, "the public has a very strong interest in knowing what's going on. Are zoo animals being treated right? Is there enough security for the Hope Diamond? What's being hidden from public view in the vaults of the Smithsonian."

Smithsonian spokeswoman Linda St. Thomas said that the institution's policy is to try to answer all media questions without FOIA requests. But if a records request is filed, she said, "we usually voluntarily provide the information requested in FOIAs."

Lawyers with the wildest reactions were folks such as Glitzenstein, whose boutique Dupont Circle law firm has eked out a practice defending circus elephants, polar bears, endangered sparrows, lynxes, horses and manatees.

"It would not be preposterous for me to make that argument," said lawyer Joyce Tischler, executive director of the Animal Legal Defense Fund. "It is preposterous for the zoo to make that argument. It is akin to [ex-Enron chief executive] Ken Lay failing to provide information to Congress on the grounds that he was trying to protect the privacy of the shareholders."

For years, Tischler said, animal-rights groups have had legal battles with the federal government. But state laws not only don't give animals rights, but they are deemed to be property. Laws prohibit animal abuse, but cases can become legally complicated. The fund often loses cases because it does not have legal standing to file lawsuits on the animals' behalf.

"The problem with standing is we have to assert human interests when it is the animal that has been adversely affected," said the fund's Takoma Park-based managing attorney, Wendy Anderson.

Anderson and Tischler are tickled at the zoo's novel approach. "I find it comforting that National Zoo is concerned about the animals' privacy," Tischler said. "This could be the start of a beautiful relationship."

Harvard University's Laurence Tribe, who supports the introduction of legislation to permit people or certain groups to legally represent animals subject to abuse, said that the least likely designee to protect an animal's welfare is a zookeeper.

"It is sort of the fox guarding the hen house," Tribe said. "They are clearly the ones whose neglect or mistreatment might be at issue."

Hearsay is let out of the cage every other week in Washington Business. Send your zoo-doo to hearsay@washpost.com