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

The Montana Supreme Court recently ruled that public employees have a reasonable expectation of privacy in their identity with respect to internal disciplinary matters, provided that the employee is not in a position of public trust and the misconduct resulting in discipline is not a violation of a duty requiring a high level of public trust. In Billings Gazette v. City of Billings, 313 P.3d 129 (Mont. 2013), the city rejected the local newspaper’s request for the identification of certain city employees who had been disciplined for accessing pornographic materials on city computers during work hours. The city provided the Gazette with materials that were responsive to its request, such as internal investigation documents and information regarding the specific discipline imposed, but it redacted the employees’ identifying information.

The Gazette sued to compel disclosure and argued that “unauthorized computer usage by disciplined [c]ity employees was subject to release under the ‘right to know’ provision of [the Montana Constitution] . . . and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know.” After in camera inspection, the district court agreed and ordered the city to disclose the investigative materials, with redactions only for uninvolved third parties.


Continue Reading

On Tuesday, June 9, the Chair of Foster Pepper’s Public Disclosure Team and editor of this blog, Ramsey Ramerman, will be arguing two cases on behalf of the City of Federal Way in the Washington State Supreme Court.  Here are the issue statements from the Supreme Court’s website:

City of Federal Way v. Koenig:

Open Government—Public Disclosure—“Local Agency”—What Constitutes—Municipal Court

Whether the Federal Way Municipal Court is a “local agency” subject to the disclosure requirements of the Public Records Act, chapter 42.56 RCW.


Continue Reading