The City Council Member, the Email Account and the Public Records Act

This post examines a recent opinion from the Court of Appeals of Washington:  West v. Vermillion, 384 P.3d 634 (2017). The court begins by explaining that

Arthur West submitted a public records request under the Public Records Act (PRA) to the city of Puyallup (City) for the `communications received or posted’ through a personal website and associated e-mail account run by city council member Steve Vermillion. Clerk's Papers (CP) at 41. Vermillion refused to provide records that were in his home, on his personal computer, or in the e-mail account associated with his website, citing privacy provisions of the Washington and United States Constitutions. The City supported Vermillion's position. West sued. The superior court granted West's motion for summary judgment requiring Vermillion to search for and produce the requested records. Vermillion and the City appeal, arguing that the superior court erred because article I, section 7 of the Washington Constitution and the First and Fourth Amendments to the United States Constitution protect the requested documents.

West v. Vermillion, supra.

The opinion goes on to explain what had happened with the litigation that brought it before the Court of Appeals:

In 2009, Vermillion created a website and an e-mail account associated with the website to aid in his state congressional campaign. Vermillion continued to use the website and e-mail after the campaign ended for various civic groups with which he was involved.

In 2011, Vermillion began using the website and e-mail to campaign for a position on the Puyallup City Council. Vermillion was elected to the Puyallup City Council effective January 1, 2012. After being elected, Vermillion occasionally received e-mails from constituents, as well as people from the City, through his website and personal e-mail account. Vermillion also used his website and e-mail to coordinate with other city council candidates.

When Vermillion received an e-mail that required an official response or action, he would forward the e-mail to the appropriate person at the City and then delete it from his e-mail. Vermillion said he used his City e-mail account when conducting City business, and he considered his website and the associated e-mail account to be “personal papers.” CP at 70.

West submitted a public records request to the City for the communications received or posted through city council member Steve Vermillion's website that `concern[ed] the City of Puyallup, City business, or any matters related to City governance the City Council and mayor, or his membership on the City Council.’ CP at 40. Vermillion refused to provide records that were at his home, on his personal computer, or in his non-City e-mail account. The City informed West that the records he sought were not within the City's possession or control. West filed a public records request action against the City and Vermillion.

West v. Vermillion, supra.

The court then describes what happened next with the litigation:

West, the City, and Vermillion filed cross-motions for summary judgment. The superior court denied the City's motion, but granted West's motion in part, ruling that (1) the Fourth Amendment’s protections against search and seizure were not implicated because Vermillion had no reasonable expectation of privacy in communications `related to the public's business’; (2) the privacy protections under article I, section 7 did not apply because West was not seeking private information;  (3) the First Amendment was not implicated because West was not asking for political activity records; (4) Vermillion was not subject to the City's policy prohibiting City employees and volunteers from performing city business on personal or third-party `technology resource[s],’ which include electronic or digital communications and commingling of City and non-City data files; and (5) the public has a right to inspect public records located on a personal computer unless the records are `highly offensive to a reasonable person and are not of legitimate public concern.’ CP at 183–85. The superior court then ordered Vermillion `under penalty of perjury [to] produce records that are within the scope of [p]laintiff's records request.’ CP at 185. The superior court also granted a CR 54(b) certification.

West v. Vermillion, supra.

The opinion then notes that

 Vermillion and the City appealed directly to the Washington Supreme Court. The Supreme Court transferred the appeal to this court for review.

West v. Vermillion, supra.

The Court of Appeals began its analysis by explaining that

[o]ur Supreme Court's decision in Nissen v. Pierce County, 183 Wash.2d 863, 357 P.3d 45 (2015) controls. Accordingly, we conclude that the arguments raised by Vermillion and the City fail, but we remand for the superior court to amend its order to conform to the language and procedure set forth in Nissen.

West v. Vermillion, supra.

The opinion goes on to outline the facts in the litigation:

In 2009, Vermillion created a website and an e-mail account associated with the website to aid in his state congressional campaign. Vermillion continued to use the website and e-mail after the campaign ended for various civic groups with which he was involved.

In 2011, Vermillion began using the website and e-mail to campaign for a position on the Puyallup City Council. Vermillion was elected to the Puyallup City Council effective January 1, 2012. After being elected, Vermillion occasionally received e-mails from constituents, as well as people from the City, through his website and personal e-mail account. Vermillion also used his website and e-mail to coordinate with other city council candidates.

When Vermillion received an e-mail that required an official response or action, he would forward the e-mail to the appropriate person at the City and then delete it from his e-mail. Vermillion said he used his City e-mail account when conducting City business, and he considered his website and the associated e-mail account to be `personal papers.’ CP at 70.

West submitted a public records request to the City for the communications received or posted through city council member Steve Vermillion's website that `concern[ed] the City of Puyallup, City business, or any matters related to City governance the City Council and mayor, or his membership on the City Council.’ CP at 40. Vermillion refused to provide records that were at his home, on his personal computer, or in his non-City e-mail account. The City informed West that the records he sought were not within the City's possession or control. West filed a public records request action against the City and Vermillion.

West, the City, and Vermillion filed cross-motions for summary judgment. The superior court denied the City's motion, but granted West's motion in part, ruling that (1) the Fourth Amendment’s the protections against search and seizure were not implicated because Vermillion had no reasonable expectation of privacy in communications `related to the public's business’; (2) the privacy protections under article I, section 7 did not apply because West was not seeking private information;  (3) the First Amendment was not implicated because West was not asking for political activity records; (4) Vermillion was not subject to the City's policy prohibiting City employees and volunteers from performing city business on personal or third-party `technology resource[s],’ which include electronic or digital communications and commingling of City and non-City data files; and (5) the public has a right to inspect public records located on a personal computer unless the records are `highly offensive to a reasonable person and are not of legitimate public concern.’ CP at 183–85. The superior court then ordered Vermillion “under penalty of perjury [to] produce records that are within the scope of [p]laintiff's records request.” CP at 185. The superior court also granted a CR 54(b) certification.

Vermillion and the City appealed directly to the Washington Supreme Court. The Supreme Court transferred the appeal to this court for review.

West v. Vermillion, supra.

Next, the court outlined the “standard of review” it would apply in this case:

We review PRA requests and summary judgment orders de novo. RCW 42.56.550(3); Nissen, 183 Wash.2d at 872, 357 P.3d 45; West v. Thurston County, 169 Wash.App. 862, 865, 282 P.3d 1150 (2012). We also review `the application of a claimed statutory exemption without regard to any exercise of discretion by the agency.’ Newman v. King County, 133 Wash.2d 565, 571, 947 P.2d 712 (1997).

The PRA `”is a strongly worded mandate for broad disclosure of public records.”’ Progressive Animal Welfare Soc. v. Univ. of Wash., 125 Wash.2d 243, 251, 884 P.2d 592 (1994) (pluralityopinion) (quoting Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978)). We are required to construe the PRA's disclosure provisions liberally and its exemptions narrowly. Progressive Animal Welfare, 125 Wash.2d at 251, 884 P.2d 592 (plurality opinion).

`The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.’ RCW 42.56.550(1). Unless the requested record falls within a specific exemption of the PRA, or other statute that exempts or prohibits disclosure of specific information or records, the agency must produce the record. Soter v. Cowles Publ’g Co., 162 Wash.2d 716, 730, 174 P.3d 60 (2007); RCW 42.56.070(1).

West v. Vermillion, supra.

The court then took up the opinion in Nissen v. Pierce County, supra. It explained that

[s]ubsequent to West's request, the superior court's decision, and the parties' submission of appellate briefs, our Supreme Court decided Nissen, 183 Wash.2d 863, 357 P.3d 45. The parties then filed supplemental briefing addressing Nissen. The Nissen opinion is dispositive of the issues raised on appeal in this case.

In Nissen, the court considered whether an elected county prosecutor's text messages on work-related matters sent and received from a private cell phone may be public records. 183 Wash.2d at 873, 357 P.3d 45. The records request asked for production of `any and all of [elected county prosecutor's] cellular telephone records for [private telephone number] or any other cellular telephone he uses to conduct his business including text messages from August 2, 2011,’ and for `[elected county prosecutor's] cellular telephone records for [private telephone number] for June 7, 2010.’ Nissen, 183 Wash.2d at 869–70, 357 P.3d 45 (footnotes omitted). Nissen first considered whether records of government business conducted on a private phone were `public record [s]’ as defined in the PRA; then whether the specific records requested were `public record[s]’; and finally, how `public records’ in the exclusive control of public employees could be sought and obtained. 183 Wash.2d at 873, 357 P.3d 45.

West v. Vermillion, supra.

The opinion goes on to explain that,

[f]irst, Nissen held 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 RCW 42.56.010(3).’ 183 Wash.2d at 877, 357 P.3d 45. In reaching this conclusion, the court noted that a public record is `”prepared, owned, used, or retained by [a] state or local agency’ ” but that state and local agencies “lack an innate ability to prepare, own, use, or retain any record” independently, and “instead act exclusively through their employees and other agents.’ Nissen, 183 Wash.2d at 876, 357 P.3d 45 (alteration in original) (quoting RCW 42.56.010(3)). Thus, when the employee or other agent `acts within the scope of his or her employment, the employee's actions are tantamount to ‘the actions of the [body] itself.’ Nissen, 183 Wash.2d at 876, 357 P.3d 45 (alteration in original) (quoting Houser v. City of Redmond, 91 Wash.2d 36, 40, 586 P.2d 482 (1978)). `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.’ Nissen, 183 Wash.2d at 878, 357 P.3d 45 (quoting Greene v. St. Paul–Mercury Indem. Co., 51 Wash.2d 569, 573, 320 P.2d 311 (1958)).

Second, the Nissen court considered whether the specific records requested were public records. The court noted that the text messages were a writing, and considered whether the requested records `”relat[e] to the conduct of government or the performance of any governmental or proprietary function”’ and were `”prepared, owned, used, or retained” by an agency.’ Nissen, 183 Wash.2d at 880–81, 357 P.3d 45 (alteration in original) (quoting RCW 42.56.010(3)). The court held that the content of the text messages requested were potentially public records subject to disclosure because the requester sufficiently alleged that the elected prosecutor put `”work related”’ outgoing text messages `”into written form”’ and `”used”’incoming text messages `while within the scope of employment,’ thereby satisfying the three elements of a public record in RCW 42.56.010(3). Nissen, 183 Wash.2d at 882–83, 357 P.3d 45.

Third, the court considered `the mechanics of searching for and obtaining public records stored by or in the control of an employee.’ Nissen, 183 Wash.2d at 883, 357 P.3d 45. The court rejected the county's and prosecutor's arguments that various constitutional provisions, including the Fourth Amendment and article I, section 7, protected the records on a private phone from disclosure. Nissen, 183 Wash.2d at 883, 357 P.3d 45. The court reasoned that `an individual has no constitutional privacy interest in a public record.’ Nissen, 183 Wash.2d at 883, 357 P.3d 45. Instead, the court held that the agency employees and agents are required to search their own `files, devices, and accounts for records responsive to a relevant PRA request,’ and must then `produce any public records (e-mails, text messages, and any other type of data)’ to the agency for the agency to then review for disclosure. Nissen, 183 Wash.2d at 886, 357 P.3d 45. The employee or agent may submit ‘reasonably detailed, nonconclusory affidavits' attesting to the nature and extent of their search,’ to show the agency conducted an adequate search. Nissen, 183 Wash.2d at 885, 357 P.3d 45 (quoting Neighborhood All. of Spokane County v. Spokane County, 172 Wash.2d 702, 721, 261 P.3d 119 (2011)). But the court held:

`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.’

            Nissen, 183 Wash.2d at 886, 357 P.3d 45.

West v. Vermillion, supra.

The court then takes up another argument advanced by the appellants in this case:

[a]ppellants argue that the superior court erred in ordering Vermillion `to produce e[-]mails from his personal e[-]mail account and swear under [penalty of] perjury that he had complied.’ Br. of Appellant (Vermillion) at 3. Specifically, Vermillion argues that the PRA does not `authorize an agency to require an elected official to search a personal e[-]mail account.’ Br. of Appellant (Vermillion) at 4. We reject Vermillion's argument.

Nissen squarely addressed this argument and held that an agency's employees or agents must search their own `files, devices, and accounts,’ and produce any public records, including `e-mails,’ to the employer agency that are responsive to the PRA request. 183 Wash.2d at 886, 357 P.3d 45. The Nissen court also held that affidavits by the agency employees, submitted in good faith, are sufficient to satisfy the agency's burden to show it conducted an adequate search for records. 183 Wash.2d at 885, 357 P.3d 45. Thus, we hold that it was proper for the superior court to require Vermillion to produce to the City e-mails in his personal e-mail account that meet the definition of a public record under RCW 42.56.010(3) and to submit an affidavit in good faith attesting to the adequacy of his search for the requested records.

West v. Vermillion, supra.

The court concluded its opinion with these comments:

Under Nissen, appellants' arguments fail. However, because the superior court issued its order before our Supreme Court decided Nissen, we remand this case for the superior court to amend its order to conform to the language and procedure set forth in Nissen. This will include requiring Vermillion to conduct `”an adequate search”’ of the undisclosed e-mails. Nissen, 183 Wash.2d at 885, 357 P.3d 45 (quoting Neigh. All., 172 Wash.2d at 721, 261 P.3d 119). In doing so Vermillion must `in good faith . . . submit ‘reasonably detailed, nonconclusory affidavits' attesting to the nature and extent of [his] search.’ Nissen, 183 Wash.2d at 885, 357 P.3d 45 (quoting Neigh. All., 172 Wash.2d at 721, 261 P.3d 119).

Those affidavits must be submitted `with facts sufficient to show the information [he decides not to disclose] is not a “public record” under the PRA.’ Nissen, 183 Wash.2d at 886, 357 P.3d 45.5

We affirm, but we remand for the superior court to amend its order in light of Nissen v. Pierce County, 183 Wash.2d 863, 357 P.3d 45 (2015).

West v. Vermillion, supra.