Privacy Rights, the Public Records Act, and Unanswered Questions

In a highly anticipated court decision that was issued recently, the Washington State Court of Appeals had an opportunity to address important unanswered questions related to what privacy rights a public official has under the Public Records Act (PRA). The decision is Nissen v. Pierce County, ___ Wn. App. ___ (Sept. 9, 2014). Unfortunately, the court passed on the privacy issues and sent the case back to the trial court for further fact-finding and consideration.

Granted, the procedural posture of the case played into the court’s decision (this was an appeal of the superior court’s CR 12(b)(6) dismissal of the lawsuit). Regardless, I see this as a missed opportunity because the court could have provided important guidance on an issue faced by local government officials and employees throughout the state – the extent to which personal privacy rights exist in cell phone records that relate to use of non-agency cell phones for both personal matters and government business.

This case involves a PRA lawsuit brought by a Pierce County detective against the county and its prosecutor. The plaintiff is seeking cell phone call logs related to the prosecutor’s private cell phone, as well as text messages sent and received from that cell phone. The type of “call log” at issue is an electronic log, maintained by the cell phone company, that includes information about the phone numbers from which calls were made or received, the duration of calls, and, for some calls, the origin and destination of those calls.

The fact that the prosecutor used his private cell phone at times to conduct county business isn’t at issue. Rather, what’s at issue is whether he made available all public records that are responsive to the PRA request. I won’t get into the facts in detail because those facts are in dispute, but I will highlight some points that may not be apparent from the court’s decision.

The court’s ruling is fairly straightforward but what’s noticeable to me is what the court left out. The court held that the call logs and text messages at issue could be public records if they relate to government business and if they were used or retained by the county. No surprises there.

However, a threshold issue the court didn’t address relates to the arguments made by the prosecutor and the county regarding personal privacy rights of public officials. This is a threshold issue because, as the court recognizes, if a record is purely personal, it’s not a public record. By extension, if it’s not a public record, an agency has no duty to produce it under the PRA.

The situation at issue here is particularly interesting because, as I interpret the facts, the county’s position is that it provided all responsive records (i.e., those related to county business that were either prepared, owned, used, or retained by the county), and the requester’s position is that the county is withholding records. The records in dispute haven’t been made available to the requester because the prosecutor and the county aren’t consenting to provide records they regard as private records held by a third party (i.e., the cell phone company).

To put this in context, under the PRA, if an agency declines to provide a record that’s responsive to a PRA request, the agency must claim a specific exemption that applies to that record or information in the record. Here, in describing the exemptions the county claimed, the only specific exemption the court refers to in chapter 42.56 RCW (the PRA) is RCW 42.56.050, which relates to privacy interests. It would have been good if the court clarified this further in its decision because the general notion is that agencies cannot withhold records based solely on general concerns about privacy by citing only to RCW 42.56.050.

As set forth in detail in the county’s briefing, the county argues that several state and federal constitutional privacy-related provisions (e.g., Article I, Section 7 of the Washington Constitution, the Fourth and Fourteenth Amendments to the U.S. Constitution), as well as federal statutory law (e.g., the Stored Communications Act), are implicated to the extent the requester is requesting private records. The county argues that these provisions govern here because constitutional protections trump the PRA, and because the PRA recognizes specific protections provided by other statutes.

For example, RCW 42.56.070(1) provides that an agency shall make available all public records, unless the PRA or some other statute exempts or prohibits disclosure of specific information or records. RCW 42.56.070(1) also provides:

To the extent required to prevent an unreasonable invasion of personal privacy interests protected by this chapter, an agency shall delete identifying details in a manner consistent with this chapter when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing.

Additionally, RCW 42.56.510 of the PRA provides:

Nothing in RCW 42.56.250 and 42.56.330 shall affect a positive duty of an agency to disclose or a positive duty to withhold information which duty to disclose or withhold is contained in any other law.

The county’s argument, in brief, is that the PRA recognizes constitutional protections, and that the PRA doesn’t trump state and federal constitutions and, in this case, a federal statute. As such, the county argues, the PRA doesn’t deprive public employees of their right to a private life simply because they are public servants.

Regardless of whether one agrees with the county on these issues, I think it’s unfortunate that the court here didn’t address the county’s privacy arguments because these arguments need to be addressed directly, especially in light of the common use of cell phones and other electronic devices by public officials. From my perspective, just as it would be unreasonable to allow public officials to use their personal electronic devices as shields from public scrutiny, so too would it be unreasonable to expect public officials to give up all their privacy rights via the PRA.

Left unresolved is how to strike the appropriate balance in such situations. For now, we’ll have to wait and see how this plays out in our courts and, perhaps, in the Washington legislature.