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.
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