In SEIU Local 925 v. University of Washington, the Washington Supreme Court unanimously reversed the state court of appeals, concluding that the “scope of employment” test from Nissen v. Pierce County applies only to records on personal devices, rather than agency devices.
The Freedom Foundation submitted a public records request to the University of Washington (“UW”) seeking, among other records, UW employee emails related to union organizing. SEIU intervened to prevent disclosure of these records, arguing they were outside the statutory definition of a “public record.”
To be a “public record,” the record must (1) contain “information relating to the conduct of government or the performance of any governmental or proprietary function” and (2) be “prepared, owned, used, or retained by any state or local agency[.]” RCW 42.56.010(3). In Nissen, the Washington Supreme Court adopted a “scope of employment” test to address whether documents on an employee’s personal device were “prepared, owned, used, or retained” by the agency itself, or by the individual employee. The Court reasoned that if the employee was acting within the scope of his or her employment as to the record in question, then the record was prepared, owned, used or retained by the agency, even though stored on a personal device, and therefore met that portion of the definition of a public record.