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

In Robbins, Geller, Rudman & Dowd, LLP v. State, Division II of the Court of Appeals decided that private parties may assert the Public Records Act exemption in RCW 42.56.270(1) for certain financial, commercial, and proprietary information obtained by public agencies. Private parties may also assert that disclosure would produce a public loss, regardless of the agency’s position on the issue. However, the court declined to address the open question in Washington of the proper standard for an injunction based on an “other statute” exemption under RCW 42.56.070(1).

The law firm of Robbins, Geller, Rudman & Dowd sought to enjoin release of information that the firm submitted to the Washington Attorney General’s Office (“AGO”) as part of its response to a request for qualifications. Although the Court of Appeals held that the law firm could assert the proprietary information exemption under RCW 42.56.270(1), it reversed the trial court’s decision to issue a permanent injunction, finding that the law firm failed to prove that the exemption, or any other exemption, prevented disclosure of the information at issue in response to a public records request.

Continue Reading Court Of Appeals Determines That Public Records Act Exemption For Proprietary Information Obtained By Public Agencies Can Be Asserted By Private Parties