Nissen v. Pierce County ( 2015 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
GLENDA NISSEN, an individual )
)
Respondent, )
)
) No. 90875~3
)
v. )
)
) En Bane
)
PIERCE COUNTY, a public agency, )
PIERCE COUNTY PROSECUTING )
ATTORNEY'S OFFICE, a public )
agency, and PROSECUTOR MARK ) Filed AUG 2 7 2015
LINDQUIST, )
)
Petitioners. )
_____ )
Yu, J.-Five years ago we concluded that the Public Records Act (PRA),
chapter 42.56 RCW, applied to a record stored on a personal computer, recognizing
that "[i]f government employees could circumvent the PRA by using their home
computers for government business, the PRA could be drastically undermined."
0 'Neill v. City ofShoreline, 170 Wash. 2d 138, 150, 240 P.3d 1149 (2010). Today we
Nissen v. Pierce County, No. 90875-3
consider if the PRA similarly applies when a public employee uses a private cell
phone to conduct government business. We hold that 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 cell phone.
BACKGROUND
This case involves two requests for public records that Glenda Nissen, a
sheriffs detective, sent to Pierce County (County). Both requests asked for records
related to Pierce County Prosecutor Mark Lindquist. One request stated:
Please produce any and all of Mark Lindquist's cellular telephone
records for number 253-861-[XXXX 1] or any other cellular telephone
he uses to conduct his business including text messages from August 2,
2011.
Clerk's Papers (CP) at 15. The other stated:
The new public records request is for Mark Lindquist's cellular
telephone records for number 253-861-[XXXX] for June 7, [2010]J2]
Id. at 17 (second alteration in original). The telephone number identified in these
requests is connected to Lindquist's private cell phone. There is no dispute that
Lindquist personally bought the phone, pays for its monthly service, and sometimes
uses it in the course of his job.
1
Though redacted in the record before us, the requests contained the full 10-digit telephone
number.
2 The County has not challenged the breadth or specificity of these requests, and we pass
no opinion.
2
Nissen v. Pierce County, No. 90875-3
In response to these requests, Lindquist obtained and provided the County
with two types of records. The first, which the parties refer to as the "call log," is
similar to an itemized statement customers might receive from their service provider
each month. It contains information about the dates and times of calls made and
received, the length of those calls, and the telephone number of the incoming or
outgoing call. Lindquist's service provider, Verizon Wireless, generated the call log
and provided it to Lindquist at his request. He voluntarily produced it to the County.
The second type of record reveals information about text messages Lindquist
sent and received over two days ("text message log"). The text message log does
not reveal the content of those messages. Instead, similar to the call log, it itemizes
the date and time of each message and provides the telephone number of the
corresponding party. Lindquist also obtained the text message log from Verizon
after receiving Nissen's PRA requests and produced it to the County.
The County reviewed the call and text message logs and disclosed partially
redacted copies to Nissen. Accompanied by an exemption log, the redactions
conceal line items for calls and text messages that Lindquist self-described as
personal in nature. The remaining unredacted portions relate to calls and text
messages that the County and Lindquist admit might be work related. See CP at 490
(Decl. of Mark Lindquist in Supp. of Mot. To Intervene & Join) ("I authorized the
release of records of calls that were related to the conduct of government or the
3
Nissen v. Pierce County, No. 90875-3
performance of any governmental or proprietary function."); Pierce County's Pet.
for Review at 3 ("[T]he Prosecutor authorized the release of records of calls that
'may be work related."'); Lindquist's Pet. for Review at 10 ("[T]he Petitioner
provided those communications that may be 'work related."'). Thus nearly half of
the text messages Lindquist sent or received and many of his phone calls during the
relevant period potentially related to his job as the elected prosecutor. The County
did not produce the contents of any text message, however, though copies of them
exist on V erizon' s servers. 3
Dissatisfied with the County's disclosures, Nissen sued the County in
Thurston County Superior Court. She sought an in camera review of Lindquist's
text messages and the call and text message logs to determine if all of the information
is a public record. Lindquist intervened and moved for a temporary restraining order
and preliminary injunction to enjoin further disclosure of records related to his cell
phone. He argued that compelling him to disclose his text messages would violate
the state and federal constitutions and was prohibited by state and federal statutes.
CP at 502-18. That same day the County moved to dismiss Nissen's complaint under
3 The messages apparently no longer exist on Lindquist's phone. In conjunction with her
PRA requests, however, Nissen's lawyer contacted Verizon and asked it to preserve all
"communications and data [on Lindquist's account] ... pending the issuance of a subpoena or
other legal process." CP at 200. The propriety of that request is not before us.
4
Nissen v. Pierce County, No. 90875-3
CR 12(b)(6). It argued the records at issue could not be public records as a matter
oflaw, because they related to a personal cell phone rather than a county-issued one.
The trial court consolidated the two motions for a hearing. After argument,
the trial judge granted the County's CR 12(b)(6) motion, determining as a matter of
law that records of private cell phone use can never be public records under the PRA.
The Court of Appeals reversed. Nissen v. Pierce County, 183 Wash. App. 581, 333
P.3d 577 (2014). Applying the PRA's definition of "public record," the Court of
Appeals held that Lindquist's text messages were public records because he
"prepared" them in his official capacity. Id. at 593-94 (citing RCW 42.56.010(3)).
The court further held that the factual record was not sufficiently developed on the
issue of whether the call logs also qualify as "public record[s]," noting that the issue
turned on whether Lindquist used or retained the logs in his capacity as prosecuting
attorney. Id. at 595.
We granted the County's and Lindquist's petitions for review, Nissen v.
Pierce County, 182 Wash. 2d 1008, 343 P.3d 759 (2015), and now affirm in part and
remand with further instructions.
STANDARD OF REVIEW
We review de novo a CR 12(b)(6) order dismissing a complaint. Dismissal is
proper only if we conclude that "the plaintiff cannot prove 'any set of facts which
would justify recovery."' Kinney v. Cook, 159 Wash. 2d 837, 842, 154 P.3d 206 (2007)
5
Nissen v. Pierce County, No. 90875-3
(quoting Tenore v. AT&T Wireless Servs., 136 Wash. 2d 322, 330, 962 P.2d 104
(1998)). Motions to dismiss are granted "only in the unusual case in which plaintiff
includes allegations that show on the face of the complaint that there is some
insuperable bar to relief." Hoffer v. State, 110 Wn.2d 415,420,755 P.2d 781 (1988)
(quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE§
357, at 604 (1969)).
Our standard of review in PRA cases is also de novo. Neigh. All. of Spokane
County v. Spokane County, 172 Wash. 2d 702, 715, 261 P.3d 119 (2011).
ANALYSIS
Before turning to the questions this case presents, it is helpful to clarify the
questions it does not. This case does not involve a public employer seizing an
employee's private cell phone to search for public records. 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.
6
Nissen v. Pierce County, No. 90875-3
With that in mind, we first interpret the PRA to determine if a record of
government business conducted on a private cell phone is a "public record," as the
PRA defines the term. We then apply that definition to the specific records here-
the call and text message logs and text messages. Finally, we address the mechanics
of searching for and obtaining public records held by or in the control of public
employees. As explained below, we hold that text messages sent or received by
Lindquist in his official capacity can be public records of the County, regardless of
the public or private nature of the device used to create them; and we order Lindquist
to obtain, segregate, and produce those public records to the County.
I. THE PRA REACHES EMPLOYEE-OWNED CELL PHONES WHEN USED FOR AGENCY
BUSINESS
Our analysis begins with the text of the PRA. By its plain language, the PRA
applies "when an 'agency' is requested to disclose 'public records.'" Dawson v.
Daly, 120 Wash. 2d 782, 788, 845 P.2d 995 (1993). Because those are both defined
terms, we must interpret the statutory definitions to decide if records of public
business an employee conducts on his or her private cell phone are public records.
Senate Republican Campaign Comm. v. Pub. Disclosure Comm 'n, 133 Wash. 2d 229,
239, 943 P.2d 1358 (1997). The PRA defines "agency" very broadly as
all state agencies and all local agencies. "State agency" includes every
state office, department, division, bureau, board, commission, or other
state agency. "Local agency" includes every county, city, town,
municipal corporation, quasi-municipal corporation, or special purpose
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Nissen v. Pierce County, No. 90875-3
district, or any office, department, division, bureau, board, commission,
or agency thereof, or other local public agency.
RCW 42.56.010(1). This definition in turn affects what information is a "public
record" since it is incorporated into the statutory definition of that term. Under the
PRA, a "public record" is
any writing containing information relating to the conduct of
government or the performance of any governmental or proprietary
function prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics.
RCW 42.56.010(3) (emphasis added).
The definitions of "agency" and "public record" are each comprehensive
on their own and, when taken together, mean the PRA subjects "virtually any record
related to the conduct of government" to public disclosure. 4 0 'Neill, 170 Wash. 2d at
147. This broad construction is deliberate and meant to give the public access to
information about every aspect of state and local government. See LAws OF 1973,
ch. 1, § 1(11 ). As we so often summarize, the PRA "is a strongly worded mandate
for broad disclosure of public records." Yakima County v. Yakima Herald-Republic,
170 Wn.2d 775,791,246 P.3d 768 (2011) (quoting Soter v. Cowles Publ'g Co., 162
Wash. 2d 716, 731, 174 P.3d 60 (2007) (quoting Hearst Corp. v. Hoppe, 90 Wash. 2d
123, 127, 580 P.2d 246 (1978))).
4
Disclosing that a public record exists in response to a request does not mean the record
will ultimately be produced. Agencies must consider whether any applicable exemption precludes
production of part or all of a record. Sanders v. State, 169 Wash. 2d 827, 836, 240 P.3d 120 (2010).
8
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A. Agency Employees Working within the Scope of Employment Create Public
Records
Despite that mandate, the County argues public employees can avoid the PRA
simply by using a private cell phone, even if they use it for public business and even
if the same information would be a public record had they used a government-issued
phone instead. 5 The County finds this large gap in the PRA by isolating the statute's
definition of "agency," which does not expressly refer to individual employees as
agencies. RCW 42.56.01 0(1 ). Since county employees like Lindquist are not
literally a "county," the County argues its employees and the records they control
are completely removed from the PRA's scope.
While that reasoning may have superficial appeal, it misses the central
question here. We cannot interpret statutory terms oblivious to the context in which
they are used. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 10-11,
43 P.3d 4 (2002). As this case does not ask if a public employee is an "agency" with
independent obligations separate from those the PRA imposes on the employer,
interpreting "agency" in isolation is unhelpful. Nissen's request was directed at the
County, not Lindquist. 6 Our task instead is to decide if records that a public
5
The County admits that this is the natural result of its interpretation of the PRA. Wash.
Supreme Court oral argument, Nissen v. Pierce County, No. 90875-3 (June 11, 2015), at 3 min., 4
sec., and 6 min., 57 sec., audio recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org.
6 Whether an elected official is independently subject to the PRA is an unsettled question.
See Bldg. Indus. Ass 'n of Wash. v. McCarthy, 152 Wash. App. 720, 746, 218 P.3d 196 (2009). Here,
9
Nissen v. Pierce County, No. 90875-3
employee generates while working for an agency are "public records" that the
agency must disclose. Thus we must interpret the statutory definitions of "agency"
and "public record" together, keeping in mind the purpose those definitions are
intended to further. See Hearst Corp., 90 Wash. 2d at 128.
One characteristic of a public record is that it is "prepared, owned, used, or
retained by any state or local agency." RCW 42.56.010(3). The County is correct
that every agency the PRA identifies is a political body arising under law (e.g., a
county). But those bodies lack an innate ability to prepare, own, use, or retain any
record. They instead act exclusively through their employees and other agents, and
when an employee acts within the scope of his or her employment, the employee's
actions are tantamount to "the actions of the [body] itself." Houser v. City of
Redmond, 91 Wash. 2d 36, 40, 586 P.2d 482 (1978) (as to cities); Hailey v. King
County, 21 Wash. 2d 53, 58, 149 P.2d 823 (1944) (as to counties). Integrating this
basic common law concept into the PRA, a record that an agency employee prepares,
owns, uses, or retains in the scope of employment is necessarily a record "prepared,
owned, used, or retained by [a] state or local agency." RCW 42.56.010(3).
however, Nissen did not sue Lindquist, either in his individual or official capacity. She instead
sued the County, alleging that Lindquist's use of his cell phone resulted in public records of the
County; Lindquist is a party only because he intervened to enjoin disclosure. The relevant question
then is not whether Lindquist is individually subject to the PRA but, rather, whether records he
handles in his capacity as the prosecutor are county public records.
10
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That interpretation is the only logical one considering how agencies conduct
business and carry out their obligations under the PRA. See Dawson, 120 Wash. 2d at
789 (public records were "prepared by the prosecutor's office" because two
employees created and compiled them). If the PRA did not capture records
individual employees prepare, own, use, or retain in the course of their jobs, the
public would be without information about much of the daily operation of
government. Such a result would be an affront to the core policy underpinning the
PRA-the public's right to a transparent government. That policy, itself embodied
in the statutory text, guides our interpretation of the PRA. RCW 42.56.030; LAWS
OF 1973, ch. 1, § 1(11); Hearst Corp., 90 Wash. 2d at 128.
B. The PRA Captures Work Product on Employee Cell Phones
With that understanding, it is clear that an agency's "public records" include
the work product of its employees. And we find nothing in the text or purpose of
the PRA supporting the County's suggestion that only work product made using
agency property can be a public record. To the contrary, the PRA is explicit that
information qualifies as a public record "regardless of [its] physical form or
characteristics." RCW 42.56.01 0(3 ). In 0 'Neill we held that a city official stored a
public record on a private computer in her home by using the computer for city
business, 170 Wash. 2d at 150, which is consistent with the idea that employees can
use their own property and still be within the scope of their employment.
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Dickinson v. Edwards, 105 Wash. 2d 457, 467-68, 716 P.2d 814 (1986). There is no
reason to treat cell phones differently. We hold 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 ofRCW
42.56.010(3).
Applying the PRAto employee cell phone use is not new. Though an issue
of first impression in this court, many state and local agencies implementing the
PRA already conclude that using a private cell phone to conduct public business can
create a public record. Over the last several years, agencies have begun adopting
policies about private cell phone use and advising employees of the agencies'
obligation to preserve all public records. Just as examples:
• "Employees utilizing cell phones for City business must not utilize
written cell phone capabilities such as text messaging or email for City
business unless such phone is synchronized with the City's computer
system so that such electronic records can be maintained according to
the State records retention requirements." CITY OF PROSSER,
PERSONNEL POLICY MANUAL 32 (2009) (Policy 403: Cell Phone
Allowance).
• "All county business generated on personal mobile devices are subject
to the Public Records Act. ... Text messages sent and received on a
personal mobile device are not stored in any other form. Employees
shall not use texting for any County business." THURSTON COUNTY
ADMINISTRATIVE MANUAL (2012) § 10 (Personal Mobile Device
Policy).
• "Employees should be aware that work-related texts and voice
messages on cell phones are public records subject to the Public
Records Act. Employees have a duty to maintain such records in
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accordance with the Washington Local Government Record Retention
Schedules." CITY OF GRANDVIEW, PERSONNEL POLICY MANUAL 88
(2013) (use of personal cellular telephones to conduct city business),
http://www.grandview.wa.us/wp-content/uploads/2013/03/
Personnel-Policy-Manuall.pdf.
These policies are comparable to many others around the state and are consistent
with the attorney general's understanding of the PRA. See WAC 44-14-03001(3).
While these interpretations do not bind us, 0 'Neill, 170 Wash. 2d at 149, they discredit
the County's assertion that private cell phone use has always been treated as outside
the PRA.
Similarly unpersuasive is the County's warning that every "work-related"
personal communication is now a public record subject to disclosure. Traditional
notions of principal-agency law alleviate this concern. For information to be a public
record, an employee must prepare, own, use, or retain it within the scope of
employment. 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. Greene v. St. Paul-Mercury Inde.m. Co., 51 Wash. 2d 569, 573, 320 P.2d 311
(1958) (citingLunz v. Dep 't ofLabor &Indus., 50 Wash. 2d 273, 310 P.2d 880 (1957);
Roletto v. Dep 't Stores Garage Co., 30 Wash. 2d 439, 191 P.2d 875 (1948)). This
limits the reach of the PRA to records related to the employee's public
responsibilities. For instance, employees do not generally act within the scope of
employment when they text their spouse about working late or discuss their job on
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Nissen v. Pierce County, No. 90875-3
social media. Nor do they typically act within the scope of employment by creating
or keeping records purely for private use, like a diary. None of these examples would
result in a public record "prepared, owned, used, or retained" by the employer
agency in the usual case. 7
Agencies can act only through their employee-agents. With respect to an
agency's obligations under the PRA, the acts of an employee in the scope of
employment are necessarily acts of the "state and local agenc[ies]" under RCW
42.56.010(3). We therefore reject the County's argument that records related to an
employee's private cell phone can never be public records as a matter of law.
Instead, records an employee prepares, owns, uses, or retains within the scope of
employment are public records if they meet all the requirements of RCW
42.56.010(3). This inquiry is always case- and record-specific. Cf Predisik v.
Spokane Sch. Dist. No. 81, 182 Wash. 2d 896, 906, 346 P.3d 737 (2015).
II. APPLYING THE PRATO THE CALL AND TEXT MESSAGE LOGS AND TEXT
MESSAGES
We next apply RCW 42.56.010(3) to the records at issue here-the call and
text message logs and text messages. To be a public record under RCW
42.56.010(3), information must be (1) a writing (2) related to the conduct of
7
We offer these generic illustrations in response to hypotheticals raised by the County and
some amici. Of course, the facts of every case vary. We do not intend these illustrations to have
precedential effect.
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Nissen v. Pierce County, No. 90875-3
government or the performance of government functions that is (3) prepared, owned,
used, or retained by a state or local agency. Confederated Tribes of the Chehalis
Reservation v. Johnson, 135 Wn.2d 734,746, 958 P.2d 260 (1998). The first element
is not in dispute-the parties agree that the call and text message logs and text
messages are "writings" under the PRA. See RCW 42.56.010(4). The remaining
two elements are discussed in turn.
A. Records Relating to the Conduct of Government
Public records must "relat[ e] to the conduct of government or the performance
of any governmental or proprietary function." RCW 42.56.010(3). This language
casts a wide net. In Confederated Tribes, for example, we held that records of money
paid by Indian tribes into a common fund related to the conduct of the government
even though the records related primarily to tribal gaming operations. 135 Wash. 2d at
739-43. Since the state received money from the common fund, we determined tribal
contributions impacted state government and therefore records of those
contributions were public records. Id. at 748.
We adopted a similarly broad interpretation in Oliver v. Harborview Med.
Ctr., 94 Wash. 2d 559, 618 P.2d 76 (1980), which involved medical records ofpatients
hospitalized at a state-owned facility. The records there unquestionably related to
individual patients and did not explicitly discuss government operations, but we still
held that the records "relat[ ed] to the conduct of government" under RCW
15
Nissen v. Pierce County, No. 90875-3
42.56.010(3). From them the public could learn about the "administration of health
care services, facility availability, use and care, methods of diagnosis, analysis,
treatment and costs, all of which are carried out or relate to the performance of a
governmental or proprietary function." Oliver, 94 Wash. 2d at 566.
Together these cases suggest records can qualify as public records if they
contain any information that refers to or impacts the actions, processes, and functions
of government. 8
B. Records Prepared, Owned, Used, or Retained by an Agency
As explained previously, a public record must also be "prepared, owned, used,
or retained" by an agency, which includes an agency employee acting within the
scope of employment. But the parties still quarrel over the meaning of these verbs,
which requires that we further interpret RCW 42.56.010(3). Statutory interpretation
starts with the plain meaning of the language; the plain meaning controls if it is
unambiguous. Campbell, 146 Wash. 2d at 11-12. We may use a dictionary to discern
the plain meaning of an undefined statutory term. HomeStreet, Inc. v. Dep 't of
Revenue, 166 Wn.2d 444,451,210 P.3d 297 (2009) (citing Garrison v. Wash. State
Nursing Bd., 87 Wash. 2d 195, 196, 550 P.2d 7 (1996)).
8
It is worth repeating that records an employee maintains in a personal capacity will not
qualify as public records, even if they refer to, comment on, or mention the employee's public
duties.
16
Nissen v. Pierce County, No. 90875-3
"Prepared." "Prepare" is defined as "to put together"; to "MAKE, PRODUCE";
"to put into written form." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
1790 (2002). This interpretation is consistent with previous cases that treat
"preparing" a record as creating it. See Dawson, 120 Wash. 2d at 787 (agency prepared
record by "creat[ing] one ofthe files"); Oliver, 94 Wash. 2d at 566 (records of patient's
hospitalization prepared by the hospital).
"Owned." To "own" a record means "to have or hold [it] as property."
WEBSTER's, supra, at 1612; see also 0 'Neill v. City ofShoreline, 145 Wash. App. 913,
925, 187 P.3d 822 (2008).
"Used." We previously addressed what it means for an agency to "use" a
record. We broadly interpreted the term in Concerned Ratepayers Ass 'n v. Pub. Uti!.
Dist. No. 1 of Clark County, 138 Wash. 2d 950, 960,983 P.2d 635 (1999), holding that
the "critical inquiry is whether the requested information bears a nexus with the
agency's decision-making process." A record that is prepared and held by a third
party, without more, is not a public record. But if an agency "evaluat[es], review[s],
or refer[ s]" to a record in the course of its business, the agency "uses" the record
within the meaning of the PRA. Id. at 962.
"Retained." To "retain" a record means "to hold or continue to hold [it] in
possession or use." WEBSTER'S, supra, at 1938.
17
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C. The Text Messages Are Potentially Public Records; the Call and Text Message
Logs Are Not
We now apply those definitions to decide if the complaint sufficiently alleges
that the call logs and text messages are "public records." Absent an allegation that
the County used the call and text message logs, the logs in this case are not public
records. The call and text message logs were prepared and retained by Verizon, and
Nissen does not contend that the County evaluated, reviewed, or took any other
action with the logs necessary to "use" them. Concerned Ratepayers, 138 Wash. 2d at
962. Though they evidence the acts of a public employee, the call and text message
logs played no role in County business as records themselves. We hold that the
complaint fails to allege the call and text message logs are "public records" of the
County within the meaning of RCW 42.56.010(3) because the County did nothing
with them.
We reach a different conclusion as to text messages. Nissen sufficiently
alleges that Lindquist sent and received text messages in his official capacity "to
take actions retaliating against her and other official misconduct." CP at 14. When
acting within the scope of his employment, Lindquist prepares outgoing text
messages by "putting them into written form" and sending them. Similarly, he
"used" incoming text messages when he reviewed and replied to them while within
the scope of employment. Since the County and Lindquist admit that some text
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Nissen v. Pierce County, No. 90875-3
messages might be "work related," the complaint sufficiently alleges that those
messages meet all three elements of a "public record" under RCW 42.56.010(3).
Transcripts of the content of those text messages are thus potentially public
records subject to disclosure, consistent with the procedure discussed below.
III. SEARCHING FOR PUBLIC RECORDS WITHIN
AN EMPLOYEE'S CONTROL
We finally turn to the mechanics of searching for and obtaining public records
stored by or in the control of an employee. The County and Lindquist suggest that
various provisions of the state and federal constitutions categorically prohibit a
public employer from obtaining public records related to private cell phone use
without consent. 9 Because an individual has no constitutional privacy interest in a
public record, 10 Lindquist's challenge is necessarily grounded in the constitutional
rights he has in personal information comingled with those public records. We are
mindful that today's mobile devices often contain "a 'wealth of detail about [a
person's] familial, political, professional, religious, and sexual associations."'
State v. Hinton, 179 Wash. 2d 862, 869, 319 P.3d 9 (2014) (alteration in original)
(quoting United States v. Jones, 565 U.S._, 132 S. Ct. 945, 955, 181 L. Ed. 2d
911 (2012) (Sotomayor, J., concurring)). As nearly two-thirds of Americans can
9
They primarily cite to the Fourth Amendment to the United States Constitution and article
I, section 7 of the Washington Constitution.
10
See Nixon v. Adm 'r of Gen. Servs., 433 U.S. 425, 457, 97 S. Ct. 2777, 53 L. Ed. 2d 867
(1977) (noting public officials have "constitutionally protected privacy rights in matters of
personal life unrelated to any acts done by them in their public capacity" (emphasis added)).
19
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now communicate, access the Internet, store documents, and manage appointments
on their smartphone, cell phones are fast becoming an indispensable fixture in
people's private and professional lives. Text messaging is the most widely used
smartphone feature; e-mail is not far behind. Aaron Smith, US. Smartphone Use in
2015, PEW RESEARCH CTR. (Apr. 1, 2015), http://www.pewinternet.org/2015/04/01/
us-smartphone-use-in-2015.
Yet the ability of public employees to use cell phones to conduct public
business by creating and exchanging public records-text messages, e-mails, or
anything else-is why the PRA must offer the public a way to obtain those records.
Without one, the PRA cannot fulfill the people's mandate to have "full access to
information concerning the conduct of government on every level." LAws OF 1973,
ch. 1, § 1( 11 ). As noted earlier, many counties, cities, and agencies around the state
recognize the need to capture and retain public records created on personal devices.
Some of those entities provide employees with a way to preserve public records and
avoid any inquiry into their private affairs by, for example, syncing work-related
I
documents, e-mails, and text messages to an agency server or other place accessible
to the employer. The County apparently has no such policy.
While a policy easing the burden on employees of preserving public records
is certainly helpful, it cannot be a precondition to the public's right to access those
records. If it were, the effectiveness of the PRA would hinge on "the whim of the
20
Nissen v. Pierce County, No. 90875-3
public officials whose activities it is designed to regulate." Mead Sch. Dist. No.
354 v. Mead Educ. Ass 'n, 85 Wash. 2d 140, 145, 530 P.2d 302 (1975). The legislature
tasks us with interpreting the PRA liberally and in light of the people's insistence
that they have information about the workings of the government they created. RCW
42.56.030. Of course, the public's statutory right to public records does not
extinguish an individual's constitutional rights in private information. But we do
not read the PRA as a zero-sum choice between personal liberty and government
accountability. Instead, we turn to well-settled principles of public disclosure law
and hold that an employee's good-faith search for public records on his or her
personal device can satisfy an agency's obligations under the PRA.
Though technology evolves, segregating public records from nonpublic ones
is nothing new for agencies responding to a PRA request. Whether stored in a file
cabinet or a cell phone, the PRA has never authorized "unbridled searches" of every
piece of information held by an agency or its employees to find records the citizen
believes are responsive to a request. Hangartner v. City of Seattle, 151 Wash. 2d 439,
448, 90 P.3d 26 (2004). The onus is instead on the agency-necessarily through its
employees-to perform "an adequate search" for the records requested. Neigh. All.,
172 Wash. 2d at 720-21. To satisfy the agency's burden to show it conducted an
adequate search for records, we permit employees in good faith to submit
"reasonably detailed, nonconclusory affidavits" attesting to the nature and extent of
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Nissen v. Pierce County, No. 90875-3
their search. Id. at 721. The PRA allows a trial court to resolve disputes about the
nature of a record "based solely on affidavits," RCW 42.56.550(3), without an in
camera review, without searching for records itself, and without infringing on an
individual's constitutional privacy interest in private information he or she keeps at
work.
Federal courts implementing the Freedom of Information Act (FOIA), Pub. L.
No. 89-487, 80 Stat. 250, allow individual employees to use the same method to self-
segregate private and public records. See, e.g., Media Research Ctr. v. US. Dep 't
of Justice, 818 F. Supp. 2d 131, 139-40 (D.D.C. 2011) (declarations sufficient to
determine e-mails were not sent in employee's official capacity); Consumer Fed'n
ofAm. v. Dep 't of Agric., 455 F.3d 283, 288-89 (D.C. Cir. 2006) (affidavits from
employees about character of electronic calendars); Bloomberg, LP v. US. Sec. &
Exch. Comm 'n, 357 F. Supp. 2d 156, 163 (D.D.C. 2004) (affidavits about "telephone
logs" and message slips); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11-12
(D.D.C. 1995); Gallant v. Nat'l Labor Relations Bd., 26 F.3d 168, 171 (D.C. Cir.
1994). While "[a]n agency cannot require an employee to produce and submit for
review a purely personal document when responding to a FOIA request[,] ... it does
control the employee to the extent that the employee works for the agency on agency
matters." Ethyl Corp. v. US. Envt'l Prot. Agency, 25 F.3d 1241, 1247 (4th Cir.
1994). Thus, where a federal employee asserts a potentially responsive record is
22
Nissen v. Pierce County, No. 90875-3
personal, he or she must provide the employer and "the courts with the opportunity
to evaluate the facts and reach their own conclusions" about whether the record is
subject to FOIA. Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 480-81 (2d Cir.
1999). We already incorporate FO IA' s standard for adequate searches into the PRA,
Neigh. All., 172 Wash. 2d at 720, and we similarly adopt FOIA's affidavit procedure
for an employee's personally held public records.
Therefore, we hold agency employees are responsible for searching their files,
devices, and accounts for records responsive to a relevant PRA request. Employees
must produce any public records (e-mails, text messages, and any other type of data)
to the employer agency. The agency then proceeds just as it would when responding
to a request for public records in the agency's possession by reviewing each record,
determining if some or all of the record is exempted from production, and disclosing
the record to the requester. See generally Resident Action Council v. Seattle Hous.
Auth., 177 Wash. 2d 417, 436-37, 327 P.3d 600 (2013).
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
23
Nissen v. Pierce County, No. 90875-3
search for and disclose public records without unnecessarily treading on the
constitutional rights of its employees.
We recognize this procedure might be criticized as too easily abused or too
deferential to employees' judgment. Certainly the same can be said of any search
for public records, not just for records related to employee cell phone use. But we
offer two specific responses. First, an employee's judgment would often be required
to help identify public records on a cell phone, even in an in camera review. Text
messages, for example, are short communications whose meaning may not be self-
apparent. Unlike a chain of e-mails where the preceding messages are often
replicated in the body of each new reply, text messages may contain only a few
words. The employee then might be needed to put that message into context to
determine if it meets the statutory definition of a "public record."
Second, those criticisms spotlight why agencies should develop ways to
capture public records related to employee cell phone use. The people enacted the
PRA "mindful ofthe right of individuals to privacy," LAWS OF 1973, ch. 1, § 1(11),
and individuals do not sacrifice all constitutional protection by accepting public
employment. City of Ontario v. Quon, 560 U.S. 746, 756, 130 S. Ct. 2619, 177 L.
Ed. 2d 216 (20 10). Agencies are in the best position to implement policies that fulfill
their obligations under the PRA yet also preserve the privacy rights of their
employees. E-mails can be routed through agency servers, documents can be cached
24
Nissen v. Pierce County, No. 90875-3
to agency-controlled cloud services, and instant messagmg apps can store
conversations. Agencies could provide employees with an agency-issued device that
the agency retains a right to access, or they could prohibit the use of personal devices
altogether. That these may be more effective ways to address employee cell phone
use, however, does not diminish the PRA's directive that we liberally construe it
here to promote access to all public records. RCW 42.56.010(3).
CONCLUSION
We affirm the Court of Appeals in part. Records that an agency employee
prepares, owns, uses, or retains on a private cell phone within the scope of
employment can be "public records" of the agency under RCW 42.56.010(3).
Nissen's complaint thus sufficiently alleges that at least some of the text messages
at issue may be public records subject to disclosure. Because it is impossible at this
stage to determine if any messages are in fact public records, on remand the parties
are directed as follows. 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. 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
25
Nissen v. Pierce County, No. 90875-3
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.
We note that the County responded to Nissen's records requests and produced
records in a timely manner based on what we presume was its good-faith
interpretation of the PRA. Though we now hold that interpretation is incorrect,
penalties are not warranted at this early stage before the County has had the
opportunity to comply with our opinion and supplement its response to Nissen's
requests accordingly. We reserve for the trial court the issue of penalties going
forward.
26
Nissen v. Pierce County, No. 90875-3
WE CONCUR:
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27