January 5, 2017 by P. Stephen DiJulio and Philip Paine
Court Decisions, AGO Opinions and Regulations
Open Government Advisor
Public Records Act
The Washington State Court of Appeals recently held that the First and Fourth Amendments of the United States Constitution and Article I, Section 7 of the Washington State Constitution, do not afford an individual privacy interest in public records contained in an elected official’s private email account.
Arthur West submitted a public records request to the City of Puyallup for communications received or posted through City Council Member Steve Vermillion’s private website and email account that related to matters of City governance. Vermillion had used the account during his election campaign and occasionally received emails from constituents and the City, which he forwarded to his City account when an official response was warranted. In response to the request, Vermillion and the City declined to provide records located in Vermillion’s private email account. West sued to compel disclosure under the Public Records Act. West v. Vermillion, No. 48601-6-II (Wash Ct. App., Nov. 8, 2016. The Superior Court ruled in favor of West and ordered Vermillion, under penalty of perjury, to produce records within the scope of the request.
On appeal, the Washington Court of Appeals held that the Washington State Supreme Court’s decision in Nissen v. Pierce County, 183 Wn.2d 863 (2015) controlled. Consequently, the Court of Appeals held that neither the Fourth Amendment to the United States Constitution nor Article I, Section 7 of the Washington State Constitution afforded Vermillion a constitutionally protected privacy interest in public records contained in his personal email account. Moreover, the court explained that constitutionally protected associational rights do not protect public records from disclosure. In the alternative, the court held that even if First Amendment constitutional protections could allow Vermillion to not disclose public records in his personal email account, it was not possible for the Court to determine if any emails were subject to such protections; or, even if they were public records.
The Court also clarified that no distinction exists between an elected executive official and an elected legislative official with regard to public records held in a private email account. Vermillion and the City had argued that the result should be different from Nissen because unlike an executive official (County Prosecutor in Nissen), a legislative official has no legal authority to act on behalf of the City through email or to take unilateral action on behalf of the City. However, the court dismissed this distinction, explaining that whether a record is subject to disclosure “hinges on if the record was prepared, owned, used or retained within the scope of employment, not if the record was prepared, owned, used or retained within the scope of employment by the executive branch of government.” Vermillion Opinion at 13 (internal quotations omitted).
The court remanded the case for the Superior Court to amend its order in light of the procedures set forth in Nissen. For an analysis of Nissen, see the article I wrote last year in Foster Pepper’s Local Open Government Blog.