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IS INFORMATION ON YOUR PERSONAL CELL PHONE SUBJECT TO PUBLIC DISCLOSURE?

SupremeCourtJustices2014

Today (August 27), the Washington Supreme Court issued a long awaited decision. This decision addresses whether text messages sent and received by a public employee on a personal cell phone and whether call and text message logs maintained by a employee’s cellular carrier are public records of the employee’s employer, which must be disclosed under Washington’s Public Records Act (PRA), RCW 42.56. This case was filed by a detective employed in the Pierce County Sheriff’s Department.

The detective had requested Pierce County to produce “any and all of Mark Lindquist’s cellular telephone records for number 253-861-[XXXX] or any other cellular telephone he uses to conduct his business including text messages from August 2, 2011.” A second request sought the same information for June 7, 2010. The telephone number in the requests was for Lindquist’s personal cellular telephone.

In response to the requests, Mark Lindquist provided the County with call and text logs obtained from his cellular carrier. The County provided the detective with redacted call and text logs, but not with any text messages.

The detective was not satisfied and brought suit in Superior Court against Pierce County seeking to have the court do an in camera inspection of the logs and the actual text messages to see if any were public records that had to be disclosed. Lindquist intervened and asked the court for an injunction blocking disclosure of any further information.

The superior court dismissed the lawsuit finding, as a matter of law, that records of private cell phone use can never be public records under the PRA. The detective appealed and the Court of Appeals reversed. Mark Lindquist then sought review by the Washington Supreme Court.

In today’s decision, the Supreme Court has held, “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.” The Court also has held that call and text message logs maintained by an employee’s cellular carrier are not public records.

Before turning to a discussion of the issues in dispute in the case, the Supreme Court went out of its way to explain what the case was not about. Specifically, the Court stated:

“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.”

The Court then turned to deciding whether text messages and call and message logs from a public employee’s personal cell phone are public records. The court found that “text messages sent and received by a public employee in the employee’s official capacity are public records of the employer” but call and text logs are not. In reaching this decision, The Court relied upon the definitions of agency and public records that are set forth in the PRA.

The Court also made it clear that not “every ‘work-related’ personal communication is now a public record subject to disclosure.” The Court then addressed when information is a public record, stating:

“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.”

The Court then provided some “generic” “non-precedential” illustrations of the types of “work-related” personal communications on a personal cell phone that would not be public records.

The last part of the Supreme Court’s decision addresses the “the mechanics of searching for and obtaining public records stored by or in the control of an employee”. The court’s approach contemplates:

“employees in good faith … submit[ing] “reasonably detailed, non conclusory affidavits” attesting to the nature and extent of their search. … The PRA allows a trial court to resolve disputes about the nature of a record “based solely on affidavits,”… 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.”

In formulating this approach, the court rejected the argument that, “the state and federal constitutions categorically prohibit a public employer from obtaining public records related to private cell phone use without consent.” The Court states: Because an individual has no constitutional privacy interest in a public record, Lindquist’s challenge is necessarily grounded in the constitutional rights he has in personal information comingled with those public records.

Thus, it is now clear 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.

The case is Nissen v. Pierce County, et.al., case no. 90875-3. The decision can be found at http://www.courts.wa.gov/opinions/pdf/908753.pdf.