Public Records Act Applies to Private Cellphones

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The Washington State Supreme Court issued a unanimous opinion holding that a public employee’s text messages, sent and received on a private cell phone, are public records (Nissen v. Pierce County et. al.).

The case involved a Pierce County Sheriff’s detective who requested records pertaining to the cell phone of Pierce County Prosecuting Attorney Mark Lindquist. In response to the request, the County did not submit the content of any text messages and later argued that such records could not be public records as a matter of law because they concerned a personal cell phone.The Supreme Court disagreed, holding 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,” and that “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.”

As a rationale, the court referenced “the core policy underpinning the (public records act) — the public’s right to a transparent government.” If the public records act 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.”

However, the ruling does not permit a claimant to rifle through text messages on a public employee’s personal cell phone. As the court noted,

An employee’s good-faith search for public records on his or her personal device can satisfy an agency’s obligations under the PRA…we permit employees in good faith to submit reasonably detailed, nonconclusory affidavits attesting to the nature and extent of their search.

The ruling follows an earlier Supreme Court decision, O’Neill v. City of Shoreline, where the court ruled that the Public Records Act applied to a record stored on a personal computer, noting that “[i]f government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.”

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