State Court Ruling Declares Private Phone Messages to be Public Records

    Sep 08, 2015

    The Washington State Supreme Court on August 27 issued a unanimous ruling declaring that the text messages of government employees transmitted over private cell phones are public records subject to disclosure under the state’s Public Records Act.  In doing so, the ruling cites a number of cases which suggests that “records can qualify as public records if they contain any information that refers to or impacts the actions, processes, and functions of government.”

    “Five years ago we concluded that the Public Records Act (PRA) applied to a record stored on a personal computer, recognizing that ‘[i]f government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined’,” the justices stated in a unanimous opinion. 

    Upon considering whether the PRA similarly applies when a public employee uses a private cell phone to conduct government business, the justice concluded, “We hold 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 ruling stemmed from a PRA suit filed by a detective with the Pierce County Sheriff's Department against the county prosecutor’s office.  The detective asked the County to preserve "any and all . . . cellular telephone records" related to a whistleblower complaint. The County responded with heavily redacted records of the prosecutor’s personal cellular phone use.  The prosecutor argued that requiring him to turn over text messages on his personal cell phone was unconstitutional and prohibited under federal and state law.

    The justices’ opinion states that government employees are required to search their files, devices, and accounts for records responsive to a relevant PRA request.  To withhold personal records, employees must submit an affidavit with facts sufficient to show the information is not a public record.  The opinion also recognizes that this procedure could be abused, and it calls on state agencies to implement policies that would capture public records related to employee cell phone use.

    “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,” the justices noted.  “That there 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.”

    The court clarified that the case did not involve the seizing of a government employee’s private cell phone, a request for all data on a private smartphone, or a private citizen suing a government employee for access to the employee’s phone. 

    The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.


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