The Washington State Court of Appeals recently held that the First and Fourth Amendments of the United States Constitution and Article I, Section 7 of the Washington State Constitution, do not afford an individual privacy interest in public records contained in an elected official’s private email account.

Arthur West submitted a public records request to the City of Puyallup for communications received or posted through City Council Member Steve Vermillion’s private website and email account that related to matters of City governance. Vermillion had used the account during his election campaign and occasionally received emails from constituents and the City, which he forwarded to his City account when an official response was warranted. In response to the request, Vermillion and the City declined to provide records located in Vermillion’s private email account. West sued to compel disclosure under the Public Records Act. West v. Vermillion, No. 48601-6-II (Wash Ct. App., Nov. 8, 2016. The Superior Court ruled in favor of West and ordered Vermillion, under penalty of perjury, to produce records within the scope of the request.

Continue Reading Private Account But Public Records: Public Records Located in City Council Member’s Private Email Account Are Not Protected From Disclosure By the State and Federal Constitutions

On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “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.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”

Continue Reading Text Messages on Private Devices Subject to Washington Public Records Act