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Carla J. Gunnin, Shareholder Direct Dial: 404.589.3404 Direct Fax: 404.238.9791 E-Mail Address: cgunnin@bakerdonelson.com

February 27, 2014

VIA HAND-DELIVERY Mr. Scott S. Dahl Inspector General Office of Inspector General U.S. Department of Labor 200 Constitution Avenue, NW Room S-5502 Washington, D.C. 20210 Dear Inspector Dahl: Please accept this letter as a formal request on behalf of my client, SeaWorld Parks & Entertainment (“SeaWorld”), that the Office of Inspector General investigate the conduct of Ms. Lara Padgett, a Compliance Officer for the Occupational Safety and Health Commission’s Tampa District Office (“OSHA”). Based on information that SeaWorld has obtained, and on reports by both national and local news media, it is clear that Ms. Padgett’s conduct violated the Standards of Ethical Conduct for government employees, specifically 5 C.F.R. §§2635.01 and 2635.702, as well as other requirements of federal law. We believe that this conduct demonstrates that she was influenced by improper considerations, and failed to bring the appropriate objectivity, in the investigation of the death of whale trainer Dawn Brancheau at SeaWorld of Florida. We believe that this continues to influence her ongoing enforcement efforts with regard to SeaWorld.

Procedural History of OSHA’s SeaWorld Enforcement Activities

By way of background, one of SeaWorld’s killer whale trainers, Ms. Dawn Brancheau, tragically died while performing her duties on February 24, 2010. Ms. Padgett was assigned as the OSHA Compliance Officer investigating Ms. Brancheau’s death. OSHA issued three citations to SeaWorld in connection with that incident, but the only one at issue here is a willful citation related to trainer interactions with killer whales.1 SeaWorld timely contested the citation and a hearing was held before the OSHRC Administrative Law Judge Kenneth Welsch the weeks of September 19, 2011 and November 14, 2011. Judge Welsch issued his decision on June 11, 2012. Judge Welsch’s Decision reduced the willful citation to a serious citation, but determined, incorrectly in our view, that SeaWorld violated the “general duty clause” of the Occupational Safety and Health Act. 1 There were two other citations not involving killer whale trainers, one serious citation and one other than serious citation.

Inspector General Scott S. Dahl February 27, 2014 Page 2 of 6 SeaWorld filed a Petition for Review of the Decision with the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) on September 7, 2012. Briefs were filed and oral argument was held on November 12, 2013. The parties are currently awaiting a decision by the Court.

Prior to filing its Petition for Review, SeaWorld filed a Petition to Modify the Abatement Date (“PMA”) with the Occupational Safety and Health Review Commission on July 27, 2012. OSHA objected to SeaWorld’s PMA and the matter was again assigned to Judge Welsch and a hearing was held before Judge Welsch on April 25, 2013. During the PMA proceedings, Ms. Padgett gave a deposition and also testified on behalf of OSHA at the hearing. Judge Welsch granted SeaWorld’s PMA on August 19, 2013. On October 9, 2012 while the PMA was pending, Ms. Padgett commenced a follow up inspection at SeaWorld. After the PMA hearing, on June 6, 2013, Ms. Padgett personally delivered to SeaWorld’s Corporate Headquarters a Repeat Citation. 2

SeaWorld provides this procedural background to give context to the matters discussed in this letter, which are the public actions by Ms. Padgett that were openly hostile to SeaWorld and supportive of its animal rights and anti-captivity critics and all of which occurred while she was still the OSHA Compliance Officer assigned to this case, while this matter was pending before the courts and while she was inspecting SeaWorld for purposes of a Repeat Citation. For ease of reference, attached is a timeline showing Ms. Padgett’s activities, which include promotion of the movie Blackfish3 and the book Death at SeaWorld4, during the times that she was actively engaged, as a government official, in investigating and issuing citations to SeaWorld.5 For example, the chart shows that prior to her deposition in the PMA, she had already attended a book signing for Death at SeaWorld. Barely one month after being deposed in the PMA, she attended the Sundance Film Festival to preview Blackfish, where she is reported to have shared lodging in a private vacation home with people who participated in the making of the movie; and a little over two weeks following her issuance to SeaWorld of a Repeat Citation, Ms. Padgett was photographed in an “air gun” pose attending the Blackfish premiere with the director and the cast and crew at the Museum of Modern Art in New York City. Death at SeaWorld and the Blackfish movie are both direct—and highly misleading—attacks upon SeaWorld and its mission toward killer whales.

Ms. Padgett’s Disclosure of Confidential Documents

SeaWorld has now obtained evidence that Ms. Padgett disclosed confidential SeaWorld documents, as well as documents submitted in conjunction with a confidential mediation before the D.C. Circuit Court of Appeals. This evidence includes both written and videotaped statements from an eyewitness who states that at the 2013 Sundance Film Festival, Blackfish associate producer and film writer, Mr. Tim Zimmerman, asked to borrow the witness’s computer thumb drive and was

2 OSHA withdrew the Repeat Citation on September 10, 2013. 3 The movie Blackfish is a self-described documentary about Tilikum, the killer whale involved in Ms. Brancheau’s death, and other whales in captivity. It is extremely critical of SeaWorld and features several former trainers at SeaWorld who have not worked at SeaWorld for over 15 years and have publicly criticized SeaWorld for many years. 4 The book Death at SeaWorld, written by David Kirby, is very critical of keeping killer whales in captivity and includes an epilogue describing the hearing on SeaWorld’s OSHA citation in a manner that is clearly anti-SeaWorld. 5 Timeline chart is attached as Exhibit 1.

Inspector General Scott S. Dahl February 27, 2014 Page 3 of 6 thereafter seen sitting with Ms. Padgett working on a laptop computer. After the thumb drive was returned, the witness discovered that it now contained documents related to the OSHA SeaWorld case that were not on the thumb drive previously. This person subsequently contacted SeaWorld. Independent sources have confirmed that Ms. Padgett accompanied the producer, cast, and crew of Blackfish to the 2013 Sundance Film Festival, where the Blackfish movie was screened, and that she shared accommodations with them there. According to the witness, the accommodations were provided free of charge.

On the thumb drive is a copy of the internal OSHA investigation file related to Ms. Padgett’s inspection of SeaWorld. This file contains documents and materials that SeaWorld had produced in response to OSHA’s discovery requests and were clearly designated and marked as “Confidential Trade Secrets.” Although Judge Welsch subsequently determined that the documents were not trade secrets, SeaWorld maintains its belief that these documents are protected trade secrets. Moreover, OSHA has consistently declined to release these very documents to requestors pursuant to the Freedom of Information Act (“FOIA”). Additionally, as you are aware, disclosure of trade secrets by a federal employee is a criminal violation of 18 USC § 1905.

Second, the thumb drive contains confidential documents that were generated as part of, and as a direct result of, the confidential mediation before the D.C. Circuit Court of Appeals that began in December 2012 and continued into 2013. Neither SeaWorld nor its counsel have provided the documents to anyone outside of the mediation and, under the requirements of the Court’s Appellate Mediation Program, all discussions and any documents prepared during the mediation are confidential and such information is not to be disclosed to anyone who is not a party to the mediation.6

Mr. Zimmerman has publicly denied that Ms. Padgett provided the Blackfish producers and writers with any OSHA documents, specifically stating that “Lara Padgett [n]ever provide[d] ‘Blackfish’ with a cache of OSHA documents, or any documents, from the OSHA inspection.”7 However, what is clear is that these confidential documents appeared on the personal thumb drive of a person who is not one of the parties to the litigation, that the thumb drive was borrowed by Mr. Zimmerman at a time when he was with Ms. Padgett and that Ms. Padgett appears to be the only person present at that time with access to the OSHA inspection file and the mediation documents.

SeaWorld currently has in its possession the original thumb drive upon which these documents reside, along with videotaped and written documentation related to its chain of custody and the circumstances surrounding the use of the thumb drive. SeaWorld is willing to provide access to the thumb drive and supporting documentation upon request of the Inspector General and with appropriate protections for the information and the witness providing it.

The disclosure of these confidential SeaWorld, OSHA, and Court mediation documents is a most serious matter. SeaWorld asks that the Inspector General conduct a full investigation, including interviewing Ms. Padgett and examining her computer(s).

6 A copy of the Court’s Order is attached as Exhibit 2. 7 Orlando Sentinel article of January 21, 2014, a copy of which is attached as Exhibit 3.

Inspector General Scott S. Dahl February 27, 2014 Page 4 of 6

Ms. Padgett’s Violation of Ethical Standards Governing the Conduct of Government Employees

This conduct of Ms. Padgett violates the Code of Federal Regulations governing the conduct of government employees. Specifically, 5 C.F.R. §§ 2635.702(a) and (b) prohibit a government employee from using her public office for the private gain of persons with whom the employee is affiliated in a nongovernmental capacity. Neither should a government employee permit the use of her position in a manner that could reasonably be construed to imply that the government agency endorses her personal activities. In addition, Section 2635.01(a) requires government employees to place loyalty to the laws and ethical principles of the United States Government and its citizens above private gain. Sections 2635.01(b)(7) and (8) further state that employees shall not use public office for private gain and shall act impartially and not give preferential treatment to any private organization or individual. The actions Ms. Padgett has taken for the previous four (4) years, while she has been actively involved in the investigation and prosecution of SeaWorld for violations of the Occupational Health and Safety Act, show that she has used her government position for the gain of others in the animal rights and anti-captivity communities and to further her personal animal rights agenda. Moreover, by repeatedly publicly identifying herself with the book Death at SeaWorld and the movie Blackfish, she implied to the public that OSHA endorsed and supported the book, the movie, and her own views and activities as an animal rights activist. It is SeaWorld’s position that these activities demonstrate a profound disregard of the ethical boundaries required of government employees and a clear violation of federal law. SeaWorld respectfully requests that the Office of the Inspector General fully investigate these activities and ensure appropriate sanctions ensue.

Further evidence of Ms. Padgett’s bias and animal rights activist-driven activities is attached to this letter. Included are numerous pictures, social media posts and other informational documents that promote Blackfish and other animal rights activists and their agendas. Specifically, the information shows the following: (1) multiple violations of OSHA’s media policy when she admits to speaking with Jason Garcia, a reporter for the Orlando Sentinel, about the SeaWorld investigation8; (2) attendance at a book signing for Death at SeaWorld, where she is publicly recognized as the OSHA official who conducted the investigation into SeaWorld9; (3) various social media posts where she “likes” Death at SeaWorld, Blackfish and various media outlets advertising the movie10; (4) Facebook friends that include known animal rights activists who have been and are currently engaged in legal and/or political campaigns to damage and destroy SeaWorld’s businesses, including Naomi Rose (Humane Society of the United States and Animal Welfare Institute), Ingrid Visser (Orca Research Trust), Samantha Berg (longstanding SeaWorld opponent), Tim Zimmerman (Blackfish associate producer and writer) and Carol Ray (the Orca Project)11; (5) numerous Facebook and Twitter posts criticizing SeaWorld and showing support for Blackfish and its cast and crew and going so far as to give some of those appearing in the movie advice on how to conduct

8 Excerpts from Lara Padgett’s June 22, 2011 Deposition Transcript, pgs 129-130, attached as Exhibit 4. 9 Affidavit of Lawrence Langfeldt, attached as Exhibit 5. 10 Attached Exhibit 6. It should be noted that Ms. Padgett identifies herself on Facebook as an OSHA Inspector and one of her profile pictures shows her in her OSHA hard hat. 11 Attached Exhibit 6.

Inspector General Scott S. Dahl February 27, 2014 Page 5 of 6 themselves during media interviews promoting the film12; and (6) public photographs showing her attendance at multiple Blackfish movie premiere events, on the red carpet, with the cast and crew of Blackfish and at other movie-related social events, including the Sundance Film Festival in January 2013, the Miami International Film Festival in March 2013, the Sarasota Film Festival in April 2013, and the New York City premiere at the Museum of Modern Art in late June 2013.13

Some examples of her numerous Facebook and Twitter posts and links (which are all attached to this letter) include the following: (a) on October 26, 2012 she recommended an article by Naomi Rose in the Orlando Sentinel titled “Aquarium Should Set Sights on Captive Whales, Not Wild” and commented “Nice Article Naomi!”; (b) On July 12, 2013, she shared a link to the article “Blackfish: A Chilling Documentary on Captive Killer Whales, It was one of the hottest films out of Sundance but ‘Blackfish’ will leave you with chills;” (c) on July 14, 2013, she shared a link, via Samantha Berg, to an article titled “SeaWorld Entertainment Challenges a Documentary About Captive Orcas” and comments “Game On!”; (d) on July 17, 2013, she shared a link to an interview with Blackfish producer Gabriela Cowperthwaite and former SeaWorld trainer John Hargrove and commented “What a fantastic interview John and Gabriela. You guys were Awesome!!”; (e) on July 19, 2013 she posted “Former SeaWorld trainer John Hargrove will be on Inside Edition and Bill Maher tonight. Bring it on John!! Don’t forget my sound bite . . . state it slowly, make it really strong with emotion, maybe a little tear and most importantly in that country accent. Love ya Cowboy!”; (f) on July 22, 2013, she posted the link “Blackfish on the move in Europe” and then commented “Wow . . . take that Sea World!!!! They’ve got to be getting nervous now;” (g) on July 29, 2013, she posted the John Hargrove video from CNN’s New Day that aired that morning and commented “Feel like a proud mum John . . . . you Rock!” and (h) on August 1, 2013, she commented on Gabriela Cowperthwaite’s appearance on CNN’s Jane Velez Mitchell show saying “Kick some ass G!!”

Also attached are documents obtained under the Freedom of Information Act (“FOIA”) which further reflect that Ms. Padgett has conducted herself as an advocate for what she perceives to be “animal rights” rather than a Compliance Officer acting solely in the interests of the Department of Labor. Since shortly after her SeaWorld investigation began in 2010, Ms. Padgett has been in communication with groups and individuals who purport to advocate on behalf of killer whales. These groups and individuals urged her to prosecute SeaWorld, stating, for example, that “no one can do this but you,” and “no one has had the guts to do it, until now.”14 She advised animal rights activists of steps she had taken in her investigation, and her purpose in doing so.15 The producer of the Blackfish movie, Gabriela Cowperthwaite, boasted in a letter to the Department that “I have been in close touch with OSHA regarding the OSHA vs. SeaWorld trial.” And, when Judge Welsch’s Decision against SeaWorld issued, an unidentified person outside the Department praised Padgett for “sticking to your guns” and having “made a stroke for killer whales, saving them from

12 Attached Exhibit 7. 13 Attached Exhibit 8. 14 Excerpts of documents provided to SeaWorld by the Department of Labor pursuant to its FOIA request are attached hereto as Exhibit 9. See bate-stamped document 001107. 15 Id. at bate-stamp numbers 00107-001110; 000758; 001028-1029.

Inspector General Scott S. Dahl February 27, 2014 Page 6 of 6 the indignity of being in a circus show.”16 These are communications from Ms. Padgett’s Department of Labor email account. In investigating this matter, it will be appropriate for the Office of Inspector General to also obtain communications from Ms. Padgett’s personal accounts. Further, SeaWorld continues to seek relevant documents from both OSHA and the Office of the Solicitor through FOIA, and will provide additional relevant documents if they become available. SeaWorld made this initial FOIA request on September 6, 2013 and has yet to receive the full production, despite repeated requests for the responsive documents.

Summary

In sum, SeaWorld believes there have been serious breaches of the federal requirements governing Ms. Padgett’s conduct. SeaWorld further believes that Ms. Padgett’s disclosure of confidential information and other conduct reflect an intense bias and a desire to assist those in the animal rights community who have publicly, and for many years, demonstrated a desire to damage SeaWorld as a viable business. In addition, she used her government position for the gain of others involved in the writing of Death at SeaWorld and the producing of the movie Blackfish, and created a public impression that OSHA supported the Blackfish movie, Death at SeaWorld, and activists’ anti-SeaWorld activity. This bias brings into question the objectivity of the entirety of her inspection activities and seems motivated by factors wholly unrelated to OSHA’s mission of “assuring safe and healthful working conditions for working men and women.”

For all of the foregoing reasons, SeaWorld respectfully requests that the Inspector General review all of the documentation included herein and begin an immediate and full investigation of Ms. Padgett’s activities as they relate to her involvement in the OSHA inspection of SeaWorld. SeaWorld further requests that during the pendency of your investigation and at any time in the future, Ms. Padgett be prohibited from conducting any future OSHA inspections related to any SeaWorld-owned parks as it is clear that her bias is so pronounced it would prevent an objective inspection.

If you have questions or need additional information, please do not hesitate to contact me.

Sincerely,

Carla J. Gunnin cc: Joseph M. Woodward, Associate Solicitor

16 Id. at bate-stamp document 001139.