State Supreme Court: Work messages on a public employee’s cell phone are public record

Friday, August 28, 2015

Work-related text messages on a public employee's personal cell phone are public records subject to disclosure, the Washington State Supreme Court ruled Aug. 27.

In a unanimous decision in Nissen v. Pierce County, the Court said it is the obligation of the employee to search for, set aside, and produce to the agency any public records when they are requested.

"This decision is largely consistent with what we argued, and emphasizes the need for agencies to ensure that public records created on employees' personal devices are preserved by the agency and disclosed upon request," said Doug Klunder, ACLU-WA Privacy Counsel, who wrote the ACLU-WA amicus brief in the case.

Sheriff's Detective Glenda Nissen sued Pierce County for failing to fulfill her public records requests for work-related text messages on Prosecutor Mark Lindquist's personal cell phone.

In its decision today, the Court ordered Lindquist to obtain and produce all work-related text messages and submit an affidavit regarding text messages that he claims are private.

The Court also emphasized that public agencies are in the "best position to implement policies that fulfill their obligations under the Public Records Act yet also preserve the privacy rights of their employees."

When it comes to public records, cell phones are no different than other devices, the ACLU pointed out.  "Public employees have always been able to create public records outside the office, whether using a home computer, typewriter, or quill pen," said the ACLU in its brief.