Private Lives of Public Employees: The PRA Implications of Working for the Government

Those of us that have worked in the public sector for many years may be quite familiar with the guidance to never put anything in writing you wouldn’t want to see in the newspaper. Folks that are new to public service are often surprised to learn that the gossip exchanged on the work email account, or the snarky comment they included on a post-it note circulated with a report, or the work venting session they recorded for their friends on Facebook, or other seemingly “private” communications about their public employment are all potentially public records subject to disclosure. A little education up front might save these folks from the embarrassment of seeing their private lives made public.

The Venn Diagram Is (Almost) a Circle

Aren’t all records held by a public agency “public” records? Not necessarily, but it’s a fine line and I’d generally err on the side of assuming that a record held by an agency is a public record if there is any question. But how did we get here?

The definition of a public record under RCW 42.56.010(3) of the Public Records Act (PRA) is:

• any writing
• containing information relating to the conduct of government or the performance of any governmental or proprietary function
• prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

Folks sometimes focus on the third bullet point and assume that just because an agency “owned” or “retained” a record, that makes it a “public record.” But that bullet point is only part of the definition, as the Washington Supreme Court explained in the context of emails in SEIU 925 v. Univ. of Washington, Freedom Foundation: “[T]he mere retention on a government server is insufficient, by itself, to bring an e-mail within the scope of a government transparency law.”

In order to fall within the scope of the PRA, the record must also relate to some aspect of the conduct or performance of government, but “pertaining to the conduct of government” is a pretty broad net.

In the SEIU 925 case, the court found that union emails on university servers were likely public records if they discussed working conditions at the public institution — so complaining about your public job on your work email will cause that email to be a public record. For more on this case, see the MRSC blog, New Ruling Addresses the Extent of the "Public Records" Definition.

Because of that broad net, it will be pretty rare that an email on an agency server will not pertain to the conduct of government in some manner. We can speculate on a few examples that would not be a public record: emailing family and friends about personal, non-work-related matters; submitting mortgage documents to a lender; conferring with a probate attorney; etc. But in every single one of those cases, a public records officer, and probably also an agency attorney, will need to read those personal emails in order to make the judgment call of whether there is even a scintilla of government-related content.

And it isn’t just emails — this same analysis applies to all the different forms of communication over agency-owned devices or accounts.

What’s the takeaway for public employees? Be careful what you put in that Microsoft Teams chat. If an applicable records request comes in, someone may have to read that entire chat thread with your co-worker that started out discussing a local program to spay and neuter stray cats but devolved into exchanging memes of an angry woman pointing at a cat that is very much not impressed. This is a funny example, but you can imagine some conversations getting into very personal details or expressing opinions you wouldn’t necessarily want to be made public.

TikTok Made Me Do It

What about personal devices and accounts of agency employees? Even if a record pertains to the conduct of government, can it be considered “prepared, owned, used, or retained” by the agency if it was never on an agency device or account? The answer is yes — but only if the record was prepared, owned, used, or retained by an agency employee within their “scope of employment.”

As explained by the Washington Supreme Court, when an agency employee acts within the “scope of employment,” the agency itself is acting. See Nissen v. Pierce County. For more analysis of the Nissen case, see MRSC's blog, PRA Applies to Work-Related Texting on a Personal Cell Phone.

For a writing (or post or text or video) to be within an employee’s “scope of employment,” at least one of the following three things must be true:

1. the job requires it,
2. the employer directs it, or
3. it furthers the employer’s interests.

Did your boss direct you to do the ice bucket challenge as a morale booster and then request you post the video on your personal Facebook page? That video is likely a public record. Do your job duties include recruiting for open positions at your agency? The LinkedIn post sharing the job advertisement with your personal network is likely a public record.

Consider this scenario: A city employee responds to the TikTok challenge “Tell me you live in a small town without telling me you live in a small town” by posting on their personal TikTok account a newspaper police blotter entry stating: “Caller reported a vehicle parked at Harbor Pointe Blvd and 47th Pl W with its trunk open. Officer responded to the scene and closed the trunk.”

Was this within the employee’s scope of employment? It is unlikely that their job required posting on TikTok or that the employer directed it. But couldn’t you say that highlighting a low crime rate furthers the city’s interest?

In West v. City of Puyallup, the court found that posting on a personal Facebook page could be a public record, but social media posts that merely offer general information about city activities only provide a “tangential benefit” to the city, and this was not enough to cause a post on a personal page to become a public record.

For more on the West case, see the MRSC blog post New Ruling Finds Facebook Posts Can Be a Public Record.

So the TikTok video? Probably not a public record since generally extolling the virtues of your community is likely only a “tangential benefit” to the city as the person’s employer.

Once-Private Words in the Public Domain

What about an employee complaining about their public job on their personal Facebook page which is only shared with a limited number of friends and is not set to “public,” perhaps making allegations that one of their coworkers was harassing them? Under the scope of employment test, it probably was not a public record when it was first made, but what if one of the employee’s Facebook “friends” shared a copy of the video with the employer? And what if the employer then used that video to open an internal investigation into the coworker’s behavior?

Another element of the Nissen case discussed above involved whether the text message logs held by a private company ( i.e., Verizon) were public records simply because they reflected the work of government (i.e., the public employee’s work-related texts). The court pointed out that there was no allegation that the county evaluated, reviewed, or took any other action with the logs necessary to “use” them. “Though they evidence the acts of a public employee, the call and text message logs played no role in County business as records themselves and were therefore not public records.”

In the Facebook example, I would say that the employer has now “used” and “retained” that video in the performance of a governmental function, namely a public employee personnel issue. So while the video may have started out as a private or personal record that may have been evidence of acts of an employee, it did not become a public record until it was used by the public agency in public business.

…But My Head Was Under Water

It can be quite a shock to new employees to learn just how much of their seemingly private digital conversations and activity are actually public records. Public employers can ease this transition by ensuring their employee training program includes public records training.

To that end, MRSC has an upcoming webinar directed at public employers to help create their own employee training programs and to address other records management and retention issues in the employment context. Join us on March 21 at 10 am for PRA Deep Dive: Creating Public Records Training for Your Employees.