The PRA Applies to Work-Related Texting on a Personal Cell Phone

In a highly anticipated decision on the Public Records Act (PRA), the Washington Supreme Court on August 27, 2015 issued its opinion in Nissen v. Pierce County. The court, in a unanimous decision that includes some revelations, 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 case involved two PRA requests by Glenda Nissen, a county employee, related to Pierce County Prosecutor Mark Lindquist's use of his personal cell phone. It was undisputed that Lindquist “personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.” Nissen requested certain logs of calls and text messages, as well as text messages sent and received from that personal phone. The logs included information about the calls and texts (e.g., dates and times of calls and texts made and received, length of calls, telephone numbers). Lindquist obtained the logs from his service provider (Verizon) and he produced them to the county. 

The county provided Nissen with copies of the logs after redacting line items for calls and text messages that Lindquist described as personal in nature. Left unredacted were portions of the logs relating to calls and texts that might be work related. Regarding the text messages, the court explained that the county didn’t produce the contents of any of the text messages, “although copies of them exist on Verizon’s servers.”

Significantly, the county and Lindquist argued that the state and federal constitutions "categorically prohibit a public employer from obtaining public records related to private cell phone use without consent." In rejecting this argument, the court emphasized:

[T]he ability of public employees to use cell phones to conduct public business by creating and exchanging public records – text messages, e-mails, or anything else – is why the PRA must offer the public a way to obtain those records. Without one, the PRA cannot fulfill the people's mandate to have "full access to information concerning the conduct of government on every level."

The court concluded that records an agency employee prepares, owns, uses, or retains on a private cell phone within the scope of employment can be public records of the agency under RCW 42.56.010(3), and that the PRA complaint in this situation included sufficient allegations that at least some of the text messages at issue may be public records subject to disclosure. Due to the factual record before the court, the justices sent the case back to the trial court with specific instructions to determine if any of the requested text messages are public records, “[b]ecause it is impossible at this stage to determine if any messages are in fact public records.”

I think the following points are of particular note regarding the court’s analysis:  

• Within the Scope of Employment: In analyzing whether a record is “prepared, owned, used, or retained by any state or local agency” under RCW 42.56.010(3), the court integrated a common law concept into the PRA and concluded that a public record is one that an agency employee prepares, owns, uses, or retains within the scope of employment. The italicized wording isn’t from RCW 42.56.010(3); rather, it’s the court’s interpretation of what constitutes a public record. The court clarified further that "[a]n 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."

• Relating to the Conduct of Government. Another part of the test for determining whether a record is a public record under the PRA is whether the record relates to the conduct of government. The court concluded that PRA case law suggests that a record can constitute a public record if it contains “any information that refers to or impacts the actions, processes, and functions of government.” However, the court also noted in a related footnote that “records an employee maintains in a personal capacity will not qualify as public records,” even if such records “refer to, comment on, or mention the employee’s public duties.” Unfortunately, the court doesn’t provide further clarification of what it means by “personal capacity,” either in the context of employees or elected officials.  

Based on these and other principles, the court held that the call logs were not public records, focusing on the fact that the logs were prepared and retained by Verizon, and that there was no allegation or evidence that the county “used” the logs by, for example, evaluating or reviewing them. The court concluded that the logs “played no role in County business as records themselves.”

Regarding the text messages, however, the court concluded that the texts at issue could potentially constitute public records. In so concluding, the court explained that Nissen had sufficiently alleged that Lindquist sent and received texts in his official capacity related to county business, that he “used” incoming texts when he reviewed and replied to them within the scope of his employment, and that he and the county admitted that some of the texts at issue may be work related. The court concluded that transcripts of the content of those texts potentially are public records subject to disclosure.  

Practical Considerations:

A few practical points are worth highlighting regarding this decision, including:  

• Use of Affidavits Related to Establishing that the Agency Conducted an Adequate Search. The court provides guidance regarding when a PRA request is made for public records that aren’t within the agency’s control. Under the PRA, agencies must conduct an adequate search for records that may be responsive to a PRA request, which can be challenging in situations in which agency employees and/or officials use their personal cell phone to conduct agency business. Recognizing privacy issues associated with use of personal electronic devices to conduct agency business, as balanced with the PRA’s mandate to provide access to public records, the court offered a solution. An agency, in meeting its burden to show it conducted an adequate search for records, can have its employees submit “reasonably detailed, nonconclusory affidavits” that attest to the nature and extent of their search. Using this procedure, employees can segregate the personal records from the public ones. The court explains that this procedure, when done in good faith, “allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”  

• Adopt Effective Policies: The court also spotlights the importance for agencies to have effective policies to address use of personal cell phones and other electronic devices as that use relates to agency business. Included in the court’s decision are excerpts from local government policies related to use of private cell phones for agency business, as well as regarding agency obligations concerning preservation of public records. 

Addressing some practical realities, the court goes on to explain, in part:

Agencies are in the best position to implement policies that fulfill their obligations under the PRA yet also preserve the privacy rights of their employees. E-mails can be routed through agency servers, documents can be cached to agency-controlled cloud services, and instant messaging apps can store conversations. Agencies could provide employees with an agency-issued device that the agency retains a right to access, or they could prohibit the use of personal devices altogether. That these may be more effective ways to address employee cell phone use, however, does not diminish the PRA’s directive that we liberally construe it here to promote access to all public records. RCW 42.56.010(3).  

I recommend that local governments take seriously the guidance provided by the court in Nissen, and carefully consider, with their agency’s legal counsel, the extent to which the decision is applicable to your agency.