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 novo. Neigh. 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.’
Revised Code of Washington42.56.010(3) (emphasis added).
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.
1 comment:
Clinton email server comes immediately to mind when I read this.
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