Monday, November 30, 2015

The Laptop, the Video and Unlawful Conduct Toward a Child

This post examines an opinion from the Court of Appeals of South Carolina:  State v. Cardwell, 2015 WL 5132348 (2015).  The court begins by explaining that
Sarah Cardwell (Cardwell) appeals her conviction for two counts of unlawful conduct toward a child and two counts of first-degree sexual exploitation of a minor. Cardwell argues the circuit court erred in refusing to suppress her laptop computer and a video seized from the laptop without a search warrant. She contends that the search and seizure violated her Fourth Amendment rights because law enforcement instructed a computer technician to locate, play, and copy the video prior to obtaining a search warrant
State v. Cardwell, supra.
The Court of Appeals explained how, and why, the prosecution arose:
In November 2010, Cardwell took her laptop computer to David Marsh for repair at his home office, which is located in Florence County. Marsh explained to Cardwell that repairing the laptop would entail downloading the data from the hard drive, rebuilding the hard drive, and then reloading the previously extracted data to the hard drive. Because Cardwell's laptop would not boot, Marsh removed the hard drive from her computer and connected it to his own computer to download the data. On December 8, 2010, as Marsh was downloading Cardwell's data to his computer, Johnsonville Police Chief Ron Douglas entered Marsh's home office to deliver some packages. When Marsh left the office to take the packages to his garage, Chief Douglas saw an image of `a nude child maybe holding a ladies' bra up across his chest.’ Chief Douglas then told Marsh, `I just saw something go across the screen, can you back it up?’ Marsh subsequently located the image of a male child wearing nothing but a pink bra and determined that the questionable image was actually part of a video. Chief Douglas indicated that he wanted to see the video, so Marsh played `just a little bit . . . possibly a minute’ of the video.
State v. Cardwell, supra.
The court went on to explain that the video
shows Cardwell's two minor children (Minor 1 and Minor 2) dancing naked with Cardwell's co-defendant and then-boyfriend, Michael Cardwell, who was also naked. Although Sarah Cardwell does not appear in the video, her voice is heard directing the children. In 2007, when the video was filmed, Minor 2 was seven years old and his sister, Minor 1, was six years old.
 The minor children had just finished bathing before they ran into the living room and pulled down Michael Cardwell's gym shorts, at which point Sarah Cardwell started filming. The video shows Minor 2 `touching his front private part.’ The video also shows Michael Cardwell `flapping’ his own penis back and forth and `tweaking’ his own nipples. At trial, Minor 2 testified that his mother and Michael Cardwell instructed him to touch his penis.
State v. Cardwell, supra.
The opinion then notes that
[b]ecause he was concerned about losing the video in the event of a hard drive crash, and because Cardwell lived in Georgetown County rather than Florence County, Chief Douglas instructed Marsh to make a copy of the video and shut down the laptop. Marsh turned over the copy of the video and Cardwell's laptop to Chief Douglas, who subsequently submitted them to Investigator Phillip Hanna of the Georgetown County Sheriff's Department. On December 10, 2010, Hanna watched the video with Marsh and Chief Douglas at the Johnsonville Police Department. Investigator Hanna then obtained a search warrant `for everything on the computer’ prior to sending Cardwell's laptop computer to the Charleston computer lab for analysis. Marsh testified at trial that even if Chief Douglas had not discovered the troubling image, Marsh would have been required to report the matter to law enforcement pursuant to § 63–7–310 of the South Carolina Code of Laws.
State v. Cardwell, supra.
As noted above, Sarah Cardwell was subsequently “indicted on two counts of unlawful conduct toward a child and two counts of first-degree sexual exploitation of a minor” and went to trial “with her co-defendant, Michael Cardwell.”  State v. Cardwell, supra. The jury convicted her on both charges and the trial judge sentenced her to
two years on each count of unlawful conduct toward a child, to run concurrently. As to the first count of first-degree sexual exploitation of a minor, the circuit court sentenced Cardwell to three years, to run consecutively to the previous indictments, and required her to register as a sex offender. As to the second count of first-degree sexual exploitation of a minor, the circuit court sentenced Cardwell to three years, to run concurrently. 
State v. Cardwell, supra.
She appealed. State v. Cardwell, supra.  This is the issue she raised on appeal:
Did the circuit court err in refusing to suppress the laptop computer and video when, without a search warrant, law enforcement instructed a computer technician to locate the questionable image, play the video, copy the video, and then provide the video to another law enforcement officer, who also viewed it prior to obtaining a search warrant?
State v. Cardwell, supra.
As you may know, Cardwell’s issue on appeal was based on the 4th Amendment to the U.S. Constitution, which establishes a constitutional guarantee that citizens of the United States will be free from “unreasonable” searches and seizures. More precisely, she argued that “ she had a reasonable expectation of privacy in the video evidence found on her laptop computer and that the circuit court erred in denying her motion to suppress the video.” State v. Cardwell, supra.  If you are interested, Wikipedia’s entry on the 4th Amendment explains the significance of the “reasonable expectation of privacy” when it comes to “searches” conducted by law enforcement officers.
Getting back to Cardwell, the Court of Appeals explained that
`[a] reasonable expectation of privacy exists in property being searched when the defendant has a relationship with the property or property owner.’ State v. Robinson, 396 S.C. 577, 722 S.E.2d 820 (South Carolina Supreme Court 2012).  Clearly, `[w]hat a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection.’ State v. Wright, 391 S.C. 436, 706 S.E.2d 324 (South Carolina Supreme Court 2011) (quoting Katz v. U.S., 389 U.S. 347(1967)). However, the act of providing an information technology professional access to one's data for the sole purposes of preserving that data and restoring the computer's functionality does not constitute exposing the data to `the public.’ Compare U.S. v. Barth, 26 F.Supp.2d 929 (U.S. District Court for the Western District of Texas 1998) (`Defendant gave the hard drive to [a computer technician] for the limited purpose of repairing a problem unrelated to specific files and also expected that he would have the unit back the following morning to continue his business. Defendant, therefore, retained his reasonable expectation of privacy in the files when he gave the hard drive to [the technician]’). . . .  
State v. Cardwell, supra.  The Court of Appeals went on to explain that the issue
here is whether Cardwell, in turning her laptop computer over to a technician for repair, relinquished her reasonable expectation of privacy such that the warrantless searches and seizure of the computer and video file were reasonable within 4th Amendment limits. See, e.g., State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (South Carolina Supreme Court 1995) (defendant did not have a continued reasonable expectation of privacy in crack cocaine discarded on the floor of a business open to the public). Whether a reasonable expectation of privacy exists in one's personal computer and its data when one voluntarily produces them to a third party has not been specifically addressed in South Carolina; however, other jurisdictions have considered this area of 4th Amendment jurisprudence.
State v. Cardwell, supra. 
The court noted that
[s]everal jurisdictions have concluded that although a reasonable expectation of privacy generally exists in one's personal computer and accompanying data, an individual may relinquish this right. See U.S. v. Stults, supra. . . .; Commonwealth v. Sodomsky, 939 A.2d 363 (Pennsylvania Superior Court 2007) (when defendant submitted his computer to technicians for repair, he abandoned his privacy interest in the child pornography stored on his hard drive); Rogers v. State, 113 S.W.3d 452 (Texas Court of Appeals 2003) (upon directing the technician to back up his files, the defendant `“no longer had a legitimate expectation of privacy in those files’). . . .
State v. Cardwell, supra.  
The Court of Appeals then began the process of applying the principles outlined above to this case, noting, initially, that
[i]n denying the motion to suppress both the video file and the laptop computer itself, the circuit court concluded that because Cardwell `voluntarily turned [her laptop computer] over to a repair technician who took it upon himself to comment on it’ there was no 4th Amendment violation. The circuit court explained, `[w]hen she gave it to the technician she had no concept [of] privacy.’
State v. Cardwell, supra.  
It went on to explain that
Cardwell argues that she has the same reasonable expectation of privacy in the data stored on her laptop that she would retain in any other closed container, file, document, or personal effect, and that she did not relinquish this expectation merely by turning the laptop over to Marsh for repair. She asserts that when Chief Douglas saw the still image of the video file, it only extinguished her privacy interest in the still image and that she retained a legitimate privacy interest in the video. We disagree that Cardwell had a legitimate privacy interest in the video file.
State v. Cardwell, supra.  
The Court of Appeals then explained why it disagreed with Cardwell on that issue:
There is no question that a computer repair professional is required to report a client to law enforcement after discovering child pornography in a client's computer files. See S.C. Code Ann. § 16–3–850 (2003) (requiring film processors, photo finishers, and computer technicians to report their discovery of images depicting minors “engaging in sexual conduct, sexual performance, or a sexually explicit posture”); §63–7–310 (listing persons required to report suspected child abuse or neglect).
 Therefore, the client takes the risk that the computer professional will disclose to law enforcement officials any of her computer files containing child pornography. Melton v. State, 69 So.3d 916 (Alabama Court of Criminal Appeals 2010) (`[T]he question in this case is not whether society would generally find an expectation of privacy in computer files to be reasonable. Rather, the question is whether, at the time law enforcement officers were at the Best Buy store, an expectation of privacy in files with explicit names that suggested that they contained child pornography was an expectation that society is prepared to consider reasonable’) (emphasis added)). Based on our review of the record and the weight of authority from other jurisdictions, we hold the circuit court properly denied the motion to suppress the video file. While we disagree with the circuit court's statement that Cardwell `had no concept [of] privacy’ whatsoever in the computer and its data when she voluntarily turned the computer over to the repair technician, we agree with the circuit court's decision to deny the motion to suppress as to the particular video file at issue.
State v. Cardwell, supra (emphasis in the original).
The Court of Appeals then held that the video file
opened and viewed by Marsh and Chief Douglas contained images of a minor `engaging in sexual conduct, sexual performance, or a sexually explicit posture.’ Once the sexually suggestive still image of the child in a bra appeared, no warrant was required to open and view this video file containing that very image. See, e.g., U.S. v. Gardner, 554 Fed. Appx. 165 (U.S. Court of Appeals for the 4th Circuit 2014). . . .   Nonetheless, to conduct a full search of the remaining files on the computer, obtaining a warrant was necessary to protect Cardwell's legitimate expectation of privacy in those separate files. Indeed, obtaining the warrant would have been a relatively simple step. See Riley v. California, 134 S.Ct. 2473 (2014) (`Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient’).
State v. Cardwell, supra.  
Finally, the Court of Appeals found that,
[a]s an additional sustaining ground, we find the inevitable discovery doctrine further supports the denial of the motion to suppress. See Nix v. Williams, 467 U.S. 431 (1984) (`If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means [,] . . . then the deterrence rationale has so little basis that the evidence should be received’). Having seen the still image of Minor 2, both Chief Douglas and Investigator Hanna clearly had probable cause to obtain a search warrant to open the video file.
 Investigator Hanna testified that it was standard procedure to obtain a search warrant when he discovered images of child pornography, such as the still image of Minor 2, and that after viewing this specific image, he obtained a search warrant for Cardwell's computer. Therefore, the State showed that the video file's content inevitably would have been, and in fact was, ultimately discovered by lawful means.
State v. Cardwell, supra.  
The court therefore held that (i) “the circuit court properly denied the motion to suppress the video file seized from Cardwell's laptop computer because Cardwell had no reasonable expectation of privacy in the photograph of Minor 2”; and (ii) “the inevitable discovery doctrine further supports the circuit court's denial of the motion”.  State v. Cardwell, supra.  

Friday, November 27, 2015

The Public Employee, the Private Cell Phone and the Public Records Act

(I need to preface this post with a caveat:  It is very long because it addresses difficult issues involved in deciding when a Public Records Act applies to a state employee's use of his/her cell phone to conduct official business. I may be wrong, but I suspect other courts will rely on this opinion.)
The Supreme Court of Washington recently examined issues that arose from the state’s Public Records Act and a County Prosecutor who used “his private cell phone to conduct government business.”  Nissen v. Pierce County, 357 P.3d 45 (2015).  The court begins its opinion by explaining that
[f]ive years ago we concluded that the Public Records Act (PRA), chapter 42.56 [Revised Code of Washington], applied to a record stored on a personal computer, recognizing that `[i]f government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.’ O'Neill v. City of Shoreline, 170 Wash.2d 138, 1240 P.3d 1149 (2010). Today we consider if the PRA similarly applies when a public employee uses a private cell phone to conduct government business. 
Nissen v. Pierce County, supra.
The Supreme Court then went on to explain that this case involves two requests for public records that Glenda Nissen, a sheriff's detective, sent to Pierce County ("County"). Both asked for records related to Pierce County Prosecutor Mark Lindquist. One request stated:
`Please produce any and all of Mark Lindquist's cellular telephone records for number 253–861–[XXXX] or any other cellular telephone he uses to conduct his business including text messages from August 2, 2011.’
Clerk's Papers (CP) at 15. The other stated:
`The new public records request is for Mark Lindquist's cellular telephone records for number 253–861–[XXXX] for June 7, [2010].
Id. at 17 (second alteration in original). The telephone number identified in these requests is connected to Lindquist's private cell phone. There is no dispute that Lindquist personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.
Nissen v. Pierce County, supra.
Lindquist responded by obtaining and providing the County with two types of records:
The first, which the parties refer to as the `call log, is similar to an itemized statement customers might receive from their service provider each month. It contains information about the dates and times of calls made and received, the length of those calls, and the telephone number of the incoming or outgoing call. Lindquist's service provider, Verizon Wireless, generated the call log and provided it to Lindquist at his request. He voluntarily produced it to the County.

The second type of record reveals information about text messages Lindquist sent and received over two days (`text message log’). The text message log does not reveal the content of those messages. Instead, similar to the call log, it itemizes the date and time of each message and provides the telephone number of the corresponding party. Lindquist also obtained the text message log from Verizon after receiving Nissen's PRA requests and produced it to the County.

The County reviewed the call and text message logs and disclosed partially redacted copies to Nissen. Accompanied by an exemption log, the redactions conceal line items for calls and text messages that Lindquist self-described as personal in nature. The remaining unredacted portions relate to calls and text messages that the County and Lindquist admit might be work related. See CP at 490 (Decl. of Mark Lindquist in Support of Motion to Intervene & Join) (`I authorized the release of records of calls that were related to the conduct of government or the performance of any governmental or proprietary function’); Pierce County's Pet. for Review at 3 (`[T]he Prosecutor authorized the release of records of calls that ‘may be work related’); Lindquist's Pet. for Review at 10 (`[T]he Petitioner provided those communications that may be “work related”’). Thus nearly half of the text messages Lindquist sent or received and many of his phone calls during the relevant period potentially related to his job as the elected prosecutor. The County did not produce the contents of any text message, however, though copies of them exist on Verizon's servers.
Nissen v. Pierce County, supra.
The Supreme Court went on to explain that
[d]issatisfied with the County's disclosures, Nissen sued the County in Thurston County Superior Court. She sought an in camera review of Lindquist's text messages and the call and text message logs to determine if all of the information is a public record. Lindquist intervened and moved for a temporary restraining order and preliminary injunction to enjoin further disclosure of records related to his cell phone. He argued that compelling him to disclose his text messages would violate the state and federal constitutions and was prohibited by state and federal statutes. . . . That same day the County moved to dismiss Nissen's complaint under [Court Rules] 12(b)(6). It argued the records at issue could not be public records as a matter of law, because they related to a personal cell phone rather than a county-issued one.

The trial court consolidated the two motions for a hearing. After argument, the trial judge granted the County's [Court Rules] 12(b)(6) motion, determining as a matter of law that records of private cell phone use can never be public records under the PRA. The Court of Appeals reversed. Nissen v. Pierce County, 183 Wash.App. 581, 333 P.3d 577 (2014). Applying the PRA's definition of `public record,’ the Court of Appeals held that Lindquist's text messages were public records because he `prepared’ them in his official capacity. Nissen v. Pierce County (2014), supra (citing RevisedCode of Washington 42.56.010(3)). The court further held that the factual record was not sufficiently developed on the issue of whether the call logs also qualify as `public record[s],’ noting that the issue turned on whether Lindquist used or retained the logs in his capacity as prosecuting attorney. 
Nissen v. Pierce County, supra.  You can read more about the facts in the case and the Supreme Court's decision in the news story you can find here.
As noted above, the Supreme Court granted “the County’s and Lindquist’s petitions for review”.  Nissen v. Pierce County, supra.  So it agreed to decide whether the Court of Appeals reached the correct conclusion.  Nissen v. Pierce County, supra.
The Supreme Court prefaced its review of the issues in the case by explaining that
[w]e review de novo a [Court Rules] 12(b)(6) order dismissing a complaint. Dismissal is proper only if we conclude that `the plaintiff cannot prove “any set of facts which would justify recovery.”’ Kinney v. Cook, 159 Wash.2d 837, 154 P.3d 206 (Washington Supreme Court 2007 (quoting Tenore v. AT & T Wireless Servs., 136 Wash.2d 322, 962 P.2d 104 (Washington Supreme Court 1998)). Motions to dismiss are granted `only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.’ Hoffer v. State, 110 Wash.2d 415, 755 P.2d 781 (Washington Supreme Court 1988) (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE § 357 at 604 (1969)).

Our standard of review in PRA cases is also de novoNeigh. All. of Spokane County v. Spokane County, 172 Wash.2d 702, 261 P.3d 119 (Washington Supreme Court 2011).
Nissen v. Pierce County, supra.
The court began its analysis of these issues by explaining that before it took up the
questions this case presents, it is helpful to clarify the questions it does not. This case does not involve a public employer seizing an employee's private cell phone to search for public records. It does not involve a records request for every piece of data on a smartphone. And it does not involve a citizen suing a public employee for access to the employee's phone. Instead, this is an action against an agency for two types of records that, while potentially related to the agency's public business, are in the exclusive control of the agency's employee. This case asks whether those records can nonetheless be “public records” the agency must disclose and, if so, whether there are limits to how the agency may search for and review those records.

With that in mind, we first interpret the PRA to determine if a record of government business conducted on a private cell phone is a `public record,’ as the PRA defines the term. We then apply that definition to the specific records here—the call and text message logs and text messages. Finally, we address the mechanics of searching for and obtaining public records held by or in the control of public employees. As explained below, we hold that text messages sent or received by Lindquist in his official capacity can be public records of the County, regardless of the public or private nature of the device used to create them; and we order Lindquist to obtain, segregate, and produce those public records to the County.
Nissen v. Pierce County, supra.
Next, the court pointed out that,
[b]y its plain language, the PRA applies `when an “agency” is requested to disclose  ‘public records.‘’’ Dawson v. Daly, 120 Wash.2d 782, 845 P.2d 995 (Washington Supreme Court 1993). Because those are both defined terms, we must interpret the statutory definitions to decide if records of public business an employee conducts on his or her private cell phone are public records. Senate Republican Campaign Comm. v. Pub. Disclosure Comm'n, 133 Wash.2d 229, 943 P.2d 1358 (Washington Supreme Court 1997). The PRA defines `agency’ very broadly as
`all state agencies and all local agencies. “State agency” includes every state office, department, division, bureau, board, commission, or other state agency. “Local agency” includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.’

Revised Code of Washington 42.56.010(1). This definition in turn affects what information is a `public record’ since it is incorporated into the statutory definition of that term. Under the PRA, a `public record’ is

`any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.’
Nissen v. Pierce County, supra.  It then went on to explain that the definitions of
`agency’ and `public record are each comprehensive on their own and, when taken together, mean the PRA subjects ‘virtually any record related to the conduct of government’ to public disclosure.  Neigh. All. of Spokane County v. Spokane County, supra. This broad construction is deliberate and meant to give the public access to information about every aspect of state and local government. See LAWS OF 1973, ch. 1, § 1(11). As we so often summarize, the PRA `is a strongly worded mandate for broad disclosure of public records.’ Yakima County v. Yakima Herald-Republic, 170 Wash.2d 775, 246 P.3d 768 (Washington Supreme Court 2011) (quoting Soter v. Cowles Publ'g Co., 162 Wash.2d 716, 174 P.3d 60 (Washington Supreme Court 2007). . . .
Nissen v. Pierce County, supra (emphasis in the original).
Next, in a section titled “Agency Employees Working within the Scope of Employment Create Public Records”, the Supreme Court pointed out that
[d]espite that mandate, the County argues public employees can avoid the PRA simply by using a private cell phone, even if they use it for public business and even if the same information would be a public record had they used a government-issued phone instead. The County finds this large gap in the PRA by isolating the statute's definition of `agency’, which does not expressly refer to individual employees as agencies. Revised Code of Washington 42.56.010(1). Since county employees like Lindquist are not literally a `county,’ the County argues its employees and the records they control are completely removed from the PRA's scope.

While that reasoning may have superficial appeal, it misses the central question here. We cannot interpret statutory terms oblivious to the context in which they are used. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 43 P.3d 4 (Washington Supreme Court 2002). As this case does not ask if a public employee is an `agency’ with independent obligations separate from those the PRA imposes on the employer, interpreting `agency’ in isolation is unhelpful. Nissen's request was directed at the County, not Lindquist. Our task instead is to decide if records that a public employee generates while working for an agency are `public records’ that the agency must disclose. Thus we must interpret the statutory definitions of `agency’ and `public record’ together, keeping in mind the purpose those definitions are intended to further. See Hearst Corp. v. Hoppe, supra.
Nissen v. Pierce County, supra (emphasis in the original).
The court went on to explain that
[d]espite that mandate, the County argues public employees can avoid the PRA simply by using a private cell phone, even if they use it for public business and even if the same information would be a public record had they used a government-issued phone instead. The County finds this large gap in the PRA by isolating the statute's definition of `agency,’ which does not expressly refer to individual employees as agencies. Revised Code of Washington 42.56.010(1). Since county employees like Lindquist are not literally a `county,’ the County argues its employees and the records they control are completely removed from the PRA's scope.

While that reasoning may have superficial appeal, it misses the central question here. We cannot interpret statutory terms oblivious to the context in which they are used. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 43 P.3d 4 (Washington Supreme Court 2002). As this case does not ask if a public employee is an `agency’ with independent obligations separate from those the PRA imposes on the employer, interpreting `agency’ in isolation is unhelpful. Nissen's request was directed at the County, not Lindquist. Our task instead is to decide if records that a public employee generates while working for an agency are `public records’ that the agency must disclose. Thus we must interpret the statutory definitions of `agency’ and `public record’ together, keeping in mind the purpose those definitions are intended to further. See Hearst Corp. v. Hoppe, supra.

One characteristic of a public record is that it is `prepared, owned, used, or retained by any state or local agency.’ Revised Code of Washington 42.56.010(3). The County is correct that every agency the PRA identifies is a political body arising under law (e.g., a county). But those bodies lack an innate ability to prepare, own, use, or retain any record. They instead act exclusively through their employees and other agents, and when an employee acts within the scope of his or her employment, the employee's actions are tantamount to `the actions of the [body] itself.’ Houser v. City of Redmond, 91 Wash.2d 36, 586 P.2d 482 (Washington Supreme Court 1978) (as to cities); Hailey v. King County, 21 Wash.2d 53, 149 P.2d 823 (Washington Supreme Court 1944) (as to counties). Integrating this basic common law concept into the PRA, a record that an agency employee prepares, owns, uses, or retains in the scope of employment is necessarily a record `prepared, owned, used, or retained by [a] state or local agency.’ Revised Code of Washington 42.56.010(3).

That interpretation is the only logical one considering how agencies conduct business and carry out their obligations under the PRA. See Dawson v. Daly, supra (public records were `prepared by the prosecutor's office’ because two employees created and compiled them). If the PRA did not capture records individual employees prepare, own, use, or retain in the course of their jobs, the public would be without information about much of the daily operation of government. Such a result would be an affront to the core policy underpinning the PRA—the public's right to a transparent government. That policy, itself embodied in the statutory text, guides our interpretation of the PRA. RCW 42.56.030; LAWS OF 1973, ch. 1, § 1(11); Hearst Corp. v. Hoppe, supra.
Nissen v. Pierce County, supra (emphasis in the original).
The Supreme Court then explained that an agency’s “public records” include the
work product of its employees. And we find nothing in the text or purpose of the PRA supporting the County's suggestion that only work product made using agency property can be a public record. To the contrary, the PRA is explicit that information qualifies as a public record `regardless of [its] physical form or characteristics.’ Revised Code of Washington 42.56.010(3). In O'Neill v. City of Shoreline, supra, we held that a city official stored a public record on a private computer in her home by using the computer for city business,  which is consistent with the idea that employees can use their own property and still be within the scope of their employment. Dickinson v. Edwards, 105 Wash.2d 457, 716 P.2d 814 (Washington Supreme Court 1986). There is no reason to treat cell phones differently. We hold that records an agency employee prepares, owns, uses, or retains on a private cell phone within the scope of employment can be a public record if they also meet the other requirements of Revised Code of Washington 42.56.010(3).
Nissen v. Pierce County, supra.  The court went on to point out that applying the
PRA to employee cell phone use is not new. Though an issue of first impression in this court, many state and local agencies implementing the PRA already conclude that using a private cell phone to conduct public business can create a public record. Over the last several years, agencies have begun adopting policies about private cell phone use and advising employees of the agencies' obligation to preserve all public records. . . .

These policies are comparable to many others around the state and are consistent with the attorney general's understanding of the PRA,  See [Washington Administrative Code] 44–14–03001(3) While these interpretations do not bind us, . . . they discredit the County's assertion that private cell phone use has always been treated as outside the PRA.

Similarly unpersuasive is the County's warning that every `work-related’ personal communication is now a public record subject to disclosure. Traditional notions of principal-agency law alleviate this concern. For information to be a public record, an employee must prepare, own, use, or retain it within the scope of employment. An employee's communication is `within the scope of employment’ only when the job requires it, the employer directs it, or it furthers the employer's interests. Greene v. St. Paul–Mercury Indem. Co., 51 Wash.2d 569, 320 P.2d 311 (Washington Supreme Coiurt 1958). . . . This limits the reach of the PRA to records related to the employee's public responsibilities. For instance, employees do not generally act within the scope of employment when they text their spouse about working late or discuss their job on social media. Nor do they typically act within the scope of employment by creating or keeping records purely for private use, like a diary. None of these examples would result in a public record “prepared, owned, used, or retained” by the employer agency in the usual case.

Agencies can act only through their employee-agents. With respect to an agency's obligations under the PRA, the acts of an employee in the scope of employment are necessarily acts of the `state and local agenc[ies]’ under [Revised Code of Washington] 42.56.010(3) We therefore reject the County's argument that records related to an employee's private cell phone can never be public records as a matter of law. Instead, records an employee prepares, owns, uses, or retains within the scope of employment are public records if they meet all the requirements of [Revised Code of Washington]  42.56.010(3)’ This inquiry is always case- and record-specific. . . .
Nissen v. Pierce County, supra (emphasis in the original).
The court then applied Revised Code of Washington 42.56.010(3) to the records at issue
here -- the call and text message logs and text messages:
To be a public record under § 42.56.010(3) information must be (1) a writing (2) related to the conduct of government or the performance of government functions that is (3) prepared, owned, used, or retained by a state or local agency. Confederated Tribes of the Chehalis Reservation v. Johnson, 135 Wash.2d 734, 958 P.2d 260 (Washington Supreme Court 1998). The first element is not in dispute -- the parties agree that the call and text message logs and text messages are `writings’ under the PRA. See RCW 42.56.010(4). The remaining two elements are discussed in turn.
Nissen v. Pierce County, supra.
The Supreme Court went on to explain that public records must relate to the conduct of
`government or the performance of any governmental or proprietary function.’ Revised Code of Washington 42.56.010(3). This language casts a wide net. In Confederated Tribes of the Chehalis Reservation v. Johnson, supra, . . . we held that records of money paid by Indian tribes into a common fund related to the conduct of the government even though the records related primarily to tribal gaming operations. . . . Since the state received money from the common fund, we determined tribal contributions impacted state government and therefore records of those contributions were public records. Confederated Tribes of the Chehalis Reservation v. Johnson, supra.

We adopted a similarly broad interpretation in Oliver v. Harborview Med. Ctr., 94 Wash.2d 559, 618 P.2d 76 (Washington Supreme Court1980), which involved medical records of patients hospitalized at a state-owned facility. The records there unquestionably related to individual patients and did not explicitly discuss government operations, but we still held that the records “relat[ed] to the conduct of government” under Washington Revised Code 42.56.010(3) From them the public could learn about the `administration of health care services, facility availability, use and care, methods of diagnosis, analysis, treatment and costs, all of which are carried out or relate to the performance of a governmental or proprietary function.’ Oliver v. Harborview Med. Ctr., supra.

Together these cases suggest records can qualify as public records if they contain any information that refers to or impacts the actions, processes, and functions of government.
Nissen v. Pierce County, supra. Next, the court took up the requirement that a public record must also be
`prepared, owned, used, or retained’ by an agency, which includes an agency employee acting within the scope of employment. But the parties still quarrel over the meaning of these verbs, which requires that we further interpret Revised Code of Washington 42.56.010(3). Statutory interpretation starts with the plain meaning of the language; the plain meaning controls if it is unambiguous Dep't of Ecology v. Campbell & Gwinn, LLC, supra.  We may use a dictionary to discern the plain meaning of an undefined statutory term.  HomeStreet, Inc. v. Dep’t of Revenue, 166 Wash. 2d 444, 210 P.3d 297 (Washington Supreme Court 2009). 
Nissen v. Pierce County, supra.
The court then explained how the above terms should be interpreted:
`Prepared.’ `Prepare’ is defined as `to put together’; to `MAKE, PRODUCE’; `to put into written form.’ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1790 (2002). This interpretation is consistent with previous cases that treat “preparing” a record as creating it. . . .

`Owned.’ To `own’ a record means `to have or hold [it] as property.’ WEBSTER’S, supra. . . .

Used.” We previously addressed what it means for an agency to `use’ a record. We broadly interpreted the term in Concerned Ratepayers Ass'n v. Pub. Util. Dist. No. 1 of Clark County, 138 Wash.2d 950, 983 P.2d 635 (Washington Supreme Court 1999), holding that the `critical inquiry is whether the requested information bears a nexus with the agency's decision-making process.’ A record that is prepared and held by a third party, without more, is not a public record. But if an agency `evaluat[es], review[s], or refer[s]’ to a record in the course of its business, the agency `uses’ the record within the meaning of the PRA. Concerned Ratepayers Ass'n v. Pub. Util. Dist. No. 1 of Clark County, supra.

`Retained.’ To `retain’ a record means `to hold or continue to hold [it] in possession or use.’ WEBSTER'S, supra, at 1938.
Nissen v. Pierce County, supra (emphasis in the original).
The court then found that while the “text messages are potentially public records”, the “call and text message logs are not.”  Nissen v. Pierce County, supra.
We now apply those definitions to decide if the complaint sufficiently alleges that the call logs and text messages are `public records.’ Absent an allegation that the County used the call and text message logs, the logs in this case are not public records. The call and text message logs were prepared and retained by Verizon, and Nissen does not contend that the County evaluated, reviewed, or took any other action with the logs necessary to `use’ them. Concerned Ratepayers Ass'n v. Pub. Util. Dist. No. 1 of Clark County, supra. Though they evidence the acts of a public employee, the call and text message logs played no role in County business as records themselves. We hold that the complaint fails to allege the call and text message logs are `public records’ of the County within the meaning of [Revised Code of Washington] 42.56.010(3) because the County did nothing with them.

We reach a different conclusion as to text messages. Nissen sufficiently alleges that Lindquist sent and received text messages in his official capacity `to take actions retaliating against her and other official misconduct.’ . . . When acting within the scope of his employment, Lindquist prepares outgoing text messages by `putting them into written form’ and sending them. Similarly, he `used’ incoming text messages when he reviewed and replied to them while within the scope of employment. Since the County and Lindquist admit that some text messages might be `work related,’ the complaint sufficiently alleges that those messages meet all three elements of a `public record’ under Revised Code of Washington 42.56.010(3).

Transcripts of the content of those text messages are thus potentially public records subject to disclosure, consistent with the procedure discussed below.
Nissen v. Pierce County, supra.
The Court of Appeals went on to outline the disclosure procedure that would apply to text messages send and/or received on cell phones used by public employees:
[T]he ability of public employees to use cell phones to conduct public business by creating and exchanging public records—text messages, e-mails, or anything else—is why the PRA must offer the public a way to obtain those records. Without one, the PRA cannot fulfill the people's mandate to have `full access to information concerning the conduct of government on every level.’ LAWS OF 1973, ch. 1, § 1(11). As noted earlier, many counties, cities, and agencies around the state recognize the need to capture and retain public records created on personal devices. Some of those entities provide employees with a way to preserve public records and avoid any inquiry into their private affairs by, for example, syncing work-related documents, e-mails, and text messages to an agency server or other place accessible to the employer. The County apparently has no such policy.

While a policy easing the burden on employees of preserving public records is certainly helpful, it cannot be a precondition to the public's right to access those records. If it were, the effectiveness of the PRA would hinge on `the whim of the public officials whose activities it is designed to regulate.’ Mead Sch. Dist. No. 354 v. Mead Educ. Ass'n, 85 Wash.2d 140, 530 P.2d 302 (Washington Supreme Court 1975). The legislature tasks us with interpreting the PRA liberally and in light of the people's insistence that they have information about the workings of the government they created. Revised Code of Washington 42.56.030. Of course, the public's statutory right to public records does not extinguish an individual's constitutional rights in private information. But we do not read the PRA as a zero-sum choice between personal liberty and government accountability. Instead, we turn to well-settled principles of public disclosure law and hold that an employee's good-faith search for public records on his or her personal device can satisfy an agency's obligations under the PRA.

Though technology evolves, segregating public records from nonpublic ones is nothing new for agencies responding to a PRA request. Whether stored in a file cabinet or a cell phone, the PRA has never authorized `unbridled searches’ of every piece of information held by an agency or its employees to find records the citizen believes are responsive to a request. Hangartner v. City of Seattle, 151 Wash.2d 439, 448, 90 P.3d 26 (Washington Supreme Court 2004). The onus is instead on the agency—necessarily through its employees—to perform “an adequate search” for the records requested. Neigh. All. of Spokane County v. Spokane County, supra. To satisfy the agency's burden to show it conducted an adequate search for records, we permit employees in good faith to submit `reasonably detailed, nonconclusory affidavits’ attesting to the nature and extent of their search. Neigh. All. of Spokane County v. Spokane County, supra. The PRA allows a trial court to resolve disputes about the nature of a record `based solely on affidavits,’ Revised Code of Washington 42.56.550(3), without an in camera review, without searching for records itself, and without infringing on an individual's constitutional privacy interest in private information he or she keeps at work. . . .

Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a `public record’ under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.

We recognize this procedure might be criticized as too easily abused or too deferential to employees' judgment. Certainly the same can be said of any search for public records, not just for records related to employee cell phone use. But we offer two specific responses. First, an employee's judgment would often be required to help identify public records on a cell phone, even in an in camera review. Text messages, for example, are short communications whose meaning may not be self-apparent. Unlike a chain of e-mails where the preceding messages are often replicated in the body of each new reply, text messages may contain only a few words. The employee then might be needed to put that message into context to determine if it meets the statutory definition of a `public record.’
Nissen v. Pierce County, supra.
The Supreme Court therefore held that because Nissen’s Complaint
sufficiently alleges that at least some of the text messages at issue may be public records subject to disclosure. Because it is impossible at this stage to determine if any messages are in fact public records, on remand the parties are directed as follows. Lindquist must obtain a transcript of the content of all the text messages at issue, review them, and produce to the County any that are public records consistent with our opinion.

The County must then review those messages—just as it would any other public record—and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log to Nissen. As to text messages that Lindquist in good faith determines are not public records, he must submit an affidavit to the County attesting to the personal character of those messages. The County must also produce that affidavit to Nissen.
Nissen v. Pierce County, supra.