This ruling was based on, and constitutes an extension of, the Supreme Court’s earlier holding in Nissen v. Pierce County.
Nissen v. Pierce County
In Nissen, the court addressed whether the Public Records Act (PRA) applies when a public employee uses a private cell phone to conduct government business. There had been two requests for public records made by a sheriff’s detective related to Pierce County Prosecutor Mark Lindquist, including a request for all of Mr. Lindquist’s cell phone and text records from any phone he used to conduct his business from a specific date forward. Mr. Lindquist provided logs of his phone calls and texts to Pierce County, and the County redacted items Mr. Lindquist considered “personal in nature” before providing the same to the requester. Nearly half of Mr. Lindquist’s texts were identified as potentially related to his job, but the County did not produce the contents of any text message.
Dissatisfied, the requester sued the County. The trial court granted the County’s motion to dismiss, concluding that records of private cell phone use can never be a public record. The Court of Appeals reversed this ruling in Nissen v. Pierce County. After the Supreme Court granted review, it affirmed the Court of Appeals.
The Nissen court concluded that the PRA reaches employee-owned cell phones when used for agency business, noting that the definition of “agency” and “public record” are both comprehensive. It rejected the County’s argument that public employees can avoid the PRA “simply by using a private cell phone.” It also rejected the County’s warning that “every work-related personal communication is now a public record subject to disclosure,” noting that the reach of the PRA is limited to records related to the employee’s public responsibilities. The court also rejected the suggestion that various constitutional provisions protected the records on a private phone from disclosure, holding that “an individual has no constitutional privacy interest in a public record.”
The court held that Mr. Lindquist’s text messages were potentially public records because all three elements of “public record” under RCW 42.56.010(3) applied, and therefore affirmed the Court of Appeals’ reversal of the trial court’s order dismissing the requester’s complaint. It further held that agency employees are responsible for searching their “files, devices, and accounts for records responsive to a relevant PRA request,” and must produce the records to their employer agency. If the employee withholds personal records from the employer, he or she “must submit an affidavit with sufficient facts to show that the information is not a public record under the PRA.”
West v. Vermillion
In West, the requester sought public records for communications received or posted through Puyallup city council member Steve Vermillion’s website that concerned the city’s business, the city council, and the mayor. Mr. Vermillion refused to provide records that were at his home, on his personal computer, or in his non-city email account. The City told the requester that it did not have responsive records in its possession, and the requester sued. The trial court granted the requester’s motion for summary judgment, and ordered Mr. Vermillion to produce the records that were within the scope of the request “under penalty of perjury.” Mr. Vermillion and the city appealed.
Relying on the court’s rulings in Nissen, the West court affirmed the trial court’s ruling but remanded with instructions consistent with Nissen. The court held that personal email accounts are subject to the PRA, in the same manner personal cell phones and texts may be subject to the PRA as addressed in Nissen, and that it was proper for the trial court to require Mr. Vermillion to search and produce city emails in his personal email account that met the definition of a public record.
The West court further expanded Nissen‘s rejection of constitutional barriers to the PRA, holding that the Fourth Amendment of the United States Constitution and Article 1, Section 7 of the Washington State Constitution do not prohibit ordering an agency employee to search for and produce responsive public records contained on private devices. 384 P.3d at 638-39. The court also concluded that the First Amendment right to freely associate did not provide a basis to shield public records. The West court considered the Nissen court’s holding that there is no constitutional privacy interest in a public record dispositive, and that this was not limited only to privacy interests enumerated under specific provisions. Thus, the West court expanded Nissen’s holding in broadly rejecting First Amendment privacy interests.
Read together, the Nissen and West opinions establish that agency-related records, even if created and stored on privately owned devices, and including emails using personal email accounts and text messages, may be subject to disclosure under the PRA. A natural extension of these court’s holdings could be feasibly expanded to Facebook and Instagram posts, and tweets by or to employees of agencies.
For municipal and state agencies, including health care agencies, these holdings create substantial and costly logistical challenges, including how to monitor the creation of potential public records on private devices owned by employees, and how to incorporate such records into the retention schedule so that the records are even locatable. Agency employees should be cautioned that almost every communication, whether a text, tweet, or a record of a phone call, may be considered a public record if it concerns matters related to their employment, and could be disclosed to any member of the public upon request. A harsher solution would prohibit employees from using private devices, private email accounts, and any social media if the use involves any aspect of their job duties.
If you have questions about this client alert or related topics, please feel free to contact either of the attorneys below:
Bruce Megard (firstname.lastname@example.org)
David Norman (email@example.com)
 __ Wn. App. __, 384 P.3d 634 (2016).
 183 Wn.2d 863, 357 P.3d 45 (2015).
 183 Wn.2d at 869.
 Id. at 871.
 183 Wn. App. 581, 333 P.3d 577 (2014).
 183 Wn.2d at 875.
 Id. at 878-79.
 Id. at 883.
 Id. at 882.
 Id. at 886.
 384 P.3d at 635.
 384 P.3d at 636.
 384 P.3d at 638.
 384 P. 3d at 638-40.
 384 P.3d at 640.