By Erica Shelley Nelson and Jordan L. Jones
In Nissen v. Pierce County, the Court of Appeals of Washington, Division Two held that “because some of the private cellular phone call logs and text messages . . . [of a prosecutor that were requested by the Plaintiff] may qualify as . . . [‘public records’ under the state’s Public Records Act] the superior court erred in granting the County’s . . . motion to dismiss.” The Court stated that “call logs for a government official’s private cellular phone constitute ‘public records’ only with regard to the calls that relate to government business and only if these call logs are used or retained by the government agency.” The Court also stated “text messages sent or received by a government official constitute ‘public records’ only if the text messages relate to government business.”
In this case, a Pierce County Sheriff’s Office Detective filed a Public Records Act (PRA) request asking the County to preserve the cellular telephone records, including text messages, of Prosecutor Mark Lindquist. This PRA request was “in connection with a separate whistleblower action . . . [that the Plaintiff had] filed.” Subsequently, the Plaintiff filed suit in Superior Court claiming that the County had “claimed improper exemptions and had wrongfully redacted records in responding to . . . [the Plaintiff’s] PRA requests.” The Superior Court held that “private cellular phone records of elected government officials are not public records subject to the PRA . . . [and] granted the County’s motion to dismiss . . . [the Plaintiff’s] complaint.”
Washington’s PRA only pertains to requests for “public records.” The PRA consist of the following three elements:
(1) “any writing”; (2) “containing information relating to the conduct of government or the performance of any governmental or proprietary function”; (3) “prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” RCW 42.56.010.
The County first argued that the Prosecutor’s “personal cellular phone call logs do not constitute disclosable ‘writings’ under the PRA because a third party provider prepared them.” However, the Court stated that “. . . the PRA does not limit disclosure to documents prepared only by government officials.”
The County next contended that the Plaintiff was not entitled to all of the logs and messages just because the Prosecutor had also conducted business on his private cellular phone. The Court stated that “at least some of . . . [the Prosecutor’s] personal cellular phone records satisfy the second element of a public record because they contain ‘information relating to the conduct of government or the performance of any governmental or propriety function.’” However, the Court agreed with the County that “[p]urely personal communications of government officials are not public records subject to PRA disclosure.” The Court relied on earlier precedent noting that “. . . a government employee’s use of a single device for both work and personal communications [does not] . . . transform all records relating to that device into ‘public records.’” In regards to this “second element” of the PRA request, the Court stated that:
The record before us on appeal, however, is inadequate to determine which portions of . . . [the Prosecutor’s] personal cellular phone records and which text messages satisfy the second element of the definition of “public record.” The superior court must make this determination after developing the necessary record on remand.
The Court then found that the “[t]ext messages relating to government business that . . . [the Prosecutor] sent and received on his personal cellular phone clearly were ‘prepared’ and ‘used’ in his capacity as a public official . . . and . . . satisfy the third ‘public record’ element.
However, the Court found that the record on appeal was again inadequate to determine whether the Prosecutor or an office employee “actually reviewed, referred to, or otherwise ‘used . . . [the call logs of the cellular phone in question] for government purposes” and stated that the Superior Court should make this determination on remand after developing the record.
The Court held that the Superior Court erred in granting the County’s motion to dismiss because based on their analysis of the three elements of the PRA’s definition of “public record” and on the Prosecutor’s “admission that he conducted some government work using his personal cellular phone, at least some of . . . [the Prosecutor’s] personal cellular phone call records and text messages may qualify as ‘public records,’ subject to PRA disclosure . . . .” The Court reversed the Superior Court’s dismissal of the Plaintiff’s PRA action and ordered the lower Court “to determine whether, under the specific facts of this case, [the Prosecutor’s] . . . personal cellular phone call logs and text messages constitute ‘public records’ as defined . . . [in the PRA].”
This is a cautionary tale for government officials who use their personal cell phone (and email) for government business. This tale is a further reminder for public employees who are union board members and representatives using work cell phones and email accounts in conducting official union business. Those cell phone and email records may be subject to disclosure under the PRA. This case would have been decided much differently if, for example, the prosecutor used his cell phone for purely personal reasons, unrelated to his government business and functions. This decision demonstrates that while the PRA is fairly robust and comprehensive in its present statutory form, the case law interpreting the statute is (mostly) further widening its scope.
