On August 27, 2015, the Washington Supreme Court issued a new decision inNissen v. Pierce County et al. (Case No. 90875-3), clarifying when records such as text messages and emails held by public employees on their personal devices or accounts may be public records subject to disclosure under the Public Records Act (“PRA”), RCW 42.56.
In a unanimous en banc decision, the Court held that text messages sent and received by a Pierce County prosecutor on his private cell phone were public records subject to disclosure as they were work-related and prepared and used within the scope of the prosecutor’s employment.
The decision provides guidance to public-sector unions and employees who are, at times, pressed by public employers to turn over information on employees’ personal devices that employees might consider private. UnderNissen, employee communications will be held to be public records subject to disclosure if they are prepared, owned, used or retained within the scope of the employee’s employment – i.e., “when the job requires it, the employer directs it, or it furthers the employer’s interest.” The Court explained that text messages public employees may send to spouses about working late or typical social media discussions between employees about their jobs won’t fit the bill and are likely private. However, text messages a requester of records alleges were written by a public employee “to take actions retaliating against her or [detailing] other official misconduct,” would satisfy the standard and are properly classified as public.
The Court mandated that public employers and employees adhere to a procedure akin to that used by federal government agencies for FOIA requests to determine whether records held by employees in their personal files or on personal devices would constitute public records responsive to a request. Under the procedure, when informed of a records request, the employee must make a good faith search of her files, devices, and accounts for all records responsive to the request and self-determine what is public and what is private. The employee should then turn over all public records to the employer, so the employer may review the records and determine if they are subject to a PRA exemption or must be disclosed. Where an employee withholds records from the employer as private, she must submit an affidavit containing facts sufficient to show that the information is not a public record under the PRA. This would give a requester and a trial court hearing a PRA lawsuit a sufficient factual basis to determine whether the material is properly private content which would be nonresponsive to a request and rightfully withheld.
The Court also recommended that public agencies across Washington continue to adopt policies prescribing how employees can use employer-provided and personal devices for public business and how information on such devices be stored and retained. Unions representing public employees should stay tuned for budding employer policies on these subjects.