Texts by Wash. Officials Deemed Public Records

     OLYMPIA, Wash. (CN) – Work-related text messages created on a public employee’s private cellphone are public records, the Washington state Supreme Court unanimously ruled.
     Pierce County Sherriff’s detective Glenda Nissen sued the county in 2011, claiming she faced retaliation after criticizing prosecutor Mark Lindquist and backing his opponent.
     She requested Lindquist’s cellphone records, including text messages and call logs from his private number if used to conduct public business.
     The county disclosed partially redacted copies to Nissan, but did not disclose the contents of any of the text messages.
     Nissan sued the county again, seeking an in camera review of Lindquist’s text messages and the call and text-message logs to determine if the information was public record.
     The trial court agreed with the county and Lindquist’s argument that records at issue could not be public records as a matter of law, because they related to a personal cellphone rather than a county-issued one.
     An appellate court reversed, finding the text messages were public because Lindquist prepared them in his official capacity. The court also found that the record was not sufficiently developed as to whether the call logs were public.
     The Washington state Supreme Court this past Thursday affirmed the appellate decision, finding “text messages sent and received by a public employee in the employee’s official capacity are public records of the employer, even if the employee uses a private cellphone.”
     The 9-0 ruling, written by Justice Mary Yu, orders Lindquist to determine which text messages are not public records.
     “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,” Yu wrote. “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,” Yu wrote.
     The high court noted that five years ago it ruled the Public Records Act applied to records stored on a personal computer and if “government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.”
     “There is no reason to treat cell phones differently,” Yu wrote.
     The court clarified the decision is not about allowing unrestricted access to a public employee’s private information.
     “This case does not involve a public employer seizing an employee’s private cellphone to search for public records,” Yu wrote for the high court. “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,” Yu wrote.
     The ruling said that Lindquist’s text messages are potentially public records, but his “call and text message logs played no role in county business as records themselves” and are not subject to disclosure.
     Lindquist referred to that portion of the ruling as a legal victory, but did not address the order requiring him to disclose text messages.
     “We won on the principles we stood for,” Lindquist said in a statement. “This case has always been about the constitutional privacy and speech rights that all citizens have in our personal phones.”
     Nissen’s attorneys Joan Mell and Michelle Earl Hubbard called the ruling a “fabulous win” in a statement.
     “We expect Lindquist to spin the decision as a win for him, because he has a history of doing that, but he and the county did not win this one,” the attorneys said. “The public has paid a high cost in county resources and outside attorneys’ fees to get a common sense ruling.”

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