Glenda Nissen is a detective with the Pierce County, Washington Sheriff’s Department. Mark Lindquist is the elected Pierce County Prosecutor. Lindquist has a County-provided cellular phone, which he rarely uses, apparently preferring instead to use his personal cellular phone to conduct government business.
When Nissen sued the County on a whistleblower claim, the County produced (1) records showing that Lindquist generally used his County-provided cellular phone less than ten minutes per month, and (2) heavily redacted records of Lindquist’s personal cellular phone use. These redacted personal cellular phone call logs showed nine work-related calls totaling 41 minutes on August 3, 2011; 13 work-related calls totaling 72 minutes on August 2, 2011; ten work-related calls totaling 46 minutes on June 7, 2010; and 16 work-related text messages on August 2 and 3, 2011.
Nissen then filed a request under Washington’s Public Records Act asking the County to produce all of Lindquist’s personal cell phone records. Nissen was seeking two types of “writings” (as the term is used in the Act): (1) A call detail log of incoming and outgoing calls from Lindquist’s personal cellular phone, and (2) copies of text messages sent and received by Lindquist from his personal cellular phone. Eventually, the Washington Court of Appeals was required to decide whether any of the records were public documents.
The Court started with the proposition that under Washington law, at least some of Lindquist’s personal cellular phone records satisfy the second element of a definition of a public record because they contained “information relating to the conduct of government or the performance of any governmental or proprietary function.” However, the Court was not willing to go as far as Nissen wanted and hold that all of Lindquist’s personal cellular phone records were public records because he used that phone to conduct government business.
Instead, the Court ruled that “purely personal communications of government officials are not public records subject to Public Record Act disclosure. Nor does a government employee’s use of a single device for both work and personal communications transform all records relating to that device into public records.
“The unique nature of Lindquist’s employment as Pierce County Prosecutor requires him to be available to fulfill public duties 24 hours a day, seven days a week. Nissen’s broad interpretation of what constitutes a ‘public record’ could conceivably subject all records of a public prosecutor’s personal phone calls to a records request, whether made on a government-owned device or on a personal device, thereby eradicating protections for purely personal information.
“Nevertheless, Lindquist’s decision to forego his County-issued cellular phone in favor of using his personal cellular phone to conduct government-related communications (1) rendered his cellular phone use no longer purely personal; and (2) thus, potentially subjected his personal cellular phone call detail log and text message records to agency scrutiny before release in response to a records request.”
How to draw the line? The Court held that those of Lindquist’s personal cellular phone records that “related to the conduct of government” were subject to disclosure. That meant that “text messages relating to government business that Lindquist sent and received on his personal cellular phone clearly were prepared and used in his capacity as a public official, and, therefore, are public records.” On the other hand, the Court found that personal cell phone records and text messages were not public records.
A more difficult question was whether Lindquist’s call logs were public records. In the end, the Court concluded that Lindquist’s personal cellular phone call logs were public records if (1) the calls reflected in the logs related to government business; and (2) Lindquist (or another public employee) reviewed, referred to, or otherwise used these records for government purposes or stored the records at a public office.”
Nissen v. Pierce County, 333 P.3d 577 (Wash. App. 2014).