From Washington, D.C. to Washington state, the manner in which government officials and employees create and store business records is making headlines. The latest development is a unanimous decision of the Washington Supreme Court, Nissen v. Pierce County, No. 90875, 2014 WL 4627656 (Wash. Sup. Ct. Aug. 27, 2015), a case involving the text messages of a county prosecutor. In Nissen, the Washington Supreme Court held that text messages sent and received by a public prosecutor acting in his official capacity are public records of the county, even though the messages were sent and received from the employee’s privately owned cell phone.

The case arose when a sheriff’s detective, Glenda Nissen, sent a request for public records to Pierce County for the cell phone records and text messages of the county prosecutor, including records from the prosecutor’s personal cell phone. There was no dispute that the prosecutor personally bought his phone, paid for its monthly service and used the phone in the course of his job. The county provided the requester with call and text message logs containing the date and time of the government-related text messages but omitted the substance of the texts. Information pertaining to the prosecutor’s personal text messages was not provided.

The Public Records Act Lawsuit

Dissatisfied with the county’s response, Nissen sued under the Public Records Act (PRA). The prosecutor intervened in the suit and argued that compelling him to disclose his text messages would violate the constitutions of Washington and the federal government, and it was prohibited by state and federal statutes. The county, meanwhile, argued that private cell phone records did not fall under the scope of the PRA even if they met the definition of “public records” because they were made by a personal device, rather than a county-issued one.

The Washington Supreme Court held that agency-related records created within the scope of employment are public records under the PRA regardless of whether they are sent or received on a personal device. The decision required the prosecutor to obtain a transcript of the content of all the text messages at issue, personally review them and produce texts that were sent or received in the prosecutor’s official capacity, meaning records that are produced, used or retained in the course of a public employee’s job. According to the court, “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.”

The court also offered public officials and employees a method to withhold purely personal messages from public disclosure:

“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.”

Implications of Nissen

The Nissen case echoes previous decisions that have held that agency-related records, whether created or stored on a publicly or privately owned device, are subject to public disclosure under the PRA. Public agencies and employees should be wary of generating or receiving public records on personally owned computers, phones or other electronic devices. Although the use of private devices for government business may be convenient, the time and effort it takes to retain, retrieve and review these records to comply with the PRA and the state’s records retention schedules create significant expense for a public agency. Agencies should consider adopting or updating policies that prohibit the use of personal electronic devices for conducting government business.

© 2015 Perkins Coie LLP


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