The Washington Supreme Court on Aug. 17, 2015, issued its ruling in Nissen v. Pierce County, which ruled that the personal cellphone of a public employee, if used to conduct public business, is now subject to disclosure under the state’s Public Records Act.
Public Records Act
The Public Records Act (PRA) applies when an agency is requested to disclose public records. The act defines a public record as “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.” RCW 42.56.010 (3).
In 2010, the Washington Supreme Court ruled that the PRA applied to personal computers utilized by public employees to conduct official business. See O’Neill v. City of Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010). The Nissen ruling further expands the reach of the PRA. Following Nissen, communication on an employee’s personal cellphone that is “within the scope of employment” is now subject to the PRA. The Court also limited the scope of the PRA by stating that purely personal communications that relate to work are not subject to the PRA. Only those communications that are made “when the job requires it, the employer directs it, or it furthers the employer’s interests” are subject to the PRA.
Search of private cellphones
The Court is mindful of the wealth of detail that often is contained on a personal cellphone. The Court recognized that “the public’s statutory right to public records does not extinguish an individual’s constitutional rights to private information.” Therefore, when performing an adequate search of a private cellphone for public records, the employee must search “their files, devices and accounts for records responsive to a relevant PRA request.” The employees “must produce any public records to the employer agency.” If an employee chooses to withhold a record from the employer, he or she “must submit an affidavit with facts sufficient to show the information is not a public record under the PRA.”
Public employers and employees should be mindful of the PRA when utilizing personal devices to conduct public business.