Are Personal Notes Public Records Under the Public Records Act?

Here’s the scenario: You’re an official or employee of a local government in Washington State and sometimes, at agency meetings, you take notes for your personal use. Are those notes public records under the Public Records Act (PRA) (chapter 42.56 RCW)? The short answer is that it depends on how the notes are created, used, and retained.

Based on the Washington State Court of Appeals decision in Yacobellis v. Bellingham, 55 Wn. App. 706 (1989), review denied, 114 Wn.2d 1002 (1990), personal notes aren’t considered public records under the PRA if the notes at issue:

• Are created solely for the government official’s or employee’s convenience or to refresh the official’s or employee’s memory;
• Are maintained in a way indicating a private purpose;
• Are not circulated or intended for distribution within agency channels;
• Are not under agency control; and
• Can be discarded at the writer's sole discretion.

Under the court’s analysis in Yacobellis, if all of these elements are met regarding the personal notes at issue, the notes are not public records under the PRA. The holding in Yacobellis isn’t that such personal notes are public records that are exempt under the PRA, but rather that such notes are not public records.

As a practical matter, I think it’s important for agency officials and employees to be careful not to interpret Yacobellis too broadly on this issue because the test the court sets forth is fact specific. A 2014 Washington State Court of Appeals decision, Nissen v. Pierce County, 183 Wn. App. 581 (2014), makes this point about the fact specific nature of the analysis.

Nissen involves a county prosecuting attorney (Lindquist) who at times used his personal cell phone to conduct county business. A PRA requester (Nissen) requested cell phone call logs and text messages related to use of that personal cell phone. Referring in part to the Yacobellis decision, the court explains and notes (at pp. 591-92):

Nissen argues that all of Lindquist’s personal cellular phone records are public records because he used that phone to conduct government business. Lindquist and the County contend that not all of Lindquist’s personal cellular phone records related to government business and that some of the information Nissen sought was purely personal. Purely personal communications of government officials are not public records subject to PRA disclosure. [Fn. 12] See Forbes v. City of Gold Bar, 171 Wn. App. 857, 868, 288 P.3d 384 (2012), review denied, 177 Wn.2d 1002 (2013) (purely personal e-mails not public records). Nor does a government employee’s use of a single device for both work and personal communications transform all records relating to that device into “public records.” Forbes, 171 Wn. App. at 868.

FOOTNOTE

[12] See also amici curiae’s argument that Lindquist’s private cellular phone records are not “public records” because they fall under the exempt categories of “personal notes, phone messages, and personal appointment calendars.” Br. of Amici Curiae of WA Fed’n of State Empls., at 5 (citing Yacobellis v. City of Bellingham, 55 Wn. App. 706, 712, 780 P.2d 272 (1989), review denied, 114 Wn.2d 1002 (1990)). Yacobellis, however, excluded those records from PRA disclosure because they were

created solely for the [government official’s] convenience or to refresh [the official’s] memory, [were] maintained in a way indicating a private purpose, [were] not circulated or intended for distribution within agency channels, [were] not under agency control, and [could] be discarded at the writer’s sole discretion.

Yacobellis, 55 Wn. App. at 712. Here, in contrast, neither Lindquist nor the County argues that Lindquist’s private cellular phone call logs were created solely for his personal convenience. Nor does Lindquist argue that he could require his cellular phone service provider to destroy the records at his sole discretion. Thus, Yacobellis does not necessarily exempt all of Lindquist’s personal cellular phone records from being “public records.”

The excerpt and the discussion above demonstrate that some issues aren’t addressed directly by the statutory provisions of the PRA. In such situations, courts interpret and apply the PRA in the context of specific facts and legal arguments. In Yacobellis, the court addressed the issue of whether a record is a public record in the context of “personal notes, phone messages, and personal appointment calendars,” and in Nissen the court did so in the context of use of a personal cell phone for agency business. Given the complexity of these issues, it’s important for agency officials and staff to consult with your agency’s legal counsel for specific legal advice.

Image courtesy of Jacob Botter.