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.”


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A Washington Court of Appeals decision demonstrates there are two ways a public records act requestor can become a “prevailing party” under the Washington Public Records Act, chapter 42.56 RCW (“PRA”). Pierce v. City of Des Moines (August 8, 2011). If the agency wrongfully withholds records and the lawsuit is reasonably necessary to obtain nonexempt records, the requester is a “prevailing party.” But as Pierce holds, under RCW 42.56.550(4), an agency can also be liable for unreasonably delaying production of records.

In Pierce, a prisoner sought certain records from the city. Des Moines did not respond with a five-day letter as required by RCW 42.56.520, but responded “more than five business days” later. Des Moines disclosed the records prior to the prisoner lawsuit but “several weeks” after the prisoner had submitted a “Tort Claim” for damages. The “Tort Claim” was submitted several months after the prisoner’s request was submitted; the prisoner claimed that his letters and calls were ignored in that intervening period.


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