New Ruling Addresses the Extent of the "Public Records" Definition

In a unanimous September 5, 2019 opinion, the Washington State Supreme Court issued a significant Public Records Act (PRA) decision in Service Employees International Union 925 v. University of Washington, Freedom Foundation. 

The case involved a 2015 Freedom Foundation request for records relating to union organizing in the possession of several University of Washington (UW) faculty members. The UW collected responsive records from a professor’s UW and non-UW email accounts, which consisted of:

• emails and documents about faculty organizing,
• posting to the American Association of University Professors (AAUP) UW chapter listserv,
• personal emails or documents unrelated to UW business; and,
• personal emails sent or received by the professor in his capacity as AAUP UW Chapter President and unrelated to UW business.

Unable to determine whether the records were public records or not, the UW provided the Service Employees International Union (SEIU) with third-party notice, indicating the records would be released unless the union secured a trial court injunction. The trial court applied the “scope of employment” test from Nissen v. Pierce County and issued a permanent injunction prohibiting release of the records. The Freedom Foundation appealed. The Court of Appeals expressly adopted Nissen’s “scope of employment” test and affirmed, and the Supreme Court reversed.

What This Means

There are several significant holdings in the Supreme Court’s decision.  

First, and, in my opinion, most importantly for local governments, the Court held that not all records located on an agency server are public records by virtue of their location on an agency device or account. Instead, the Court cited Tiberino v. Spokane County to support the conclusion stating

mere retention on an agency server is not enough to bring an e-mail within the scope of the PRA.

The records at issue in Tiberino were an employee’s personal emails to her mother and sister located on her agency email account. The court held that the emails became a public record once the county used them for agency business — specifically, when the county stored and printed them in preparation for litigation over the employee’s termination.

Second, the Court held that the scope of employment test set forth in Nissen should only be used to determine whether records located on personal devices or accounts are public records and should not be used when the records are located on agency servers.

Third, the Court held that the union organizing records at issue — which discuss working conditions at the UW or the UW’s educational mission — contain information relating to the conduct of government. The court stated:

These topics — involving a state university’s treatment of its students and faculty — “relate to the conduct of government….Thus, to the extent the e-mails responsive to the Foundation’s request relate to these topics, they satisfy RCW 42.56.010(3)’s second prong.

The union had relied on Tiberino for its argument that the records at issue were not public records since UW did not make any official use of them. The Court found Tiberino to be “inapposite” and not informing the question about emails on agency accounts in which the agency employee discussed work-related matters. The Court noted that the parties in Tiberino agreed that the content of the emails was entirely personal and, thus, not related to the conduct of government. In contrast, the parties in this case disputed whether the content of the records at issue related to the conduct of government.

Conclusion

This may not be the end of the case. The Court noted that its holding on the “scope of employment” tests does not dispose of the union’s other arguments against release, which included applicability of statutory and constitutional exemptions.

However, we can take away the following from the opinion at this juncture:

• All records located on an agency device or account are not public records just by virtue of their location. Instead, they must also meet the second prong of the public records definition (i.e., "relating to the conduct of government or the performance of any governmental or proprietary function").
• The “scope of employment” test does not apply to records held on an agency device or account.
• Union organizing emails can be public records as they relate to the conduct of government (even though, potentially, they could be exempt under statutory or constitutional exemptions).