Private Cell Phones now Subject to the PRA

August 27, 2015

The Washington State Supreme Court issued its ruling in Nissen v. Pierce County on August 17, 2015 which ruled that the personal cell phone of a public employee, if used to conduct public business, are now subject to disclosure under the Washington State Public Records Act. 

This article does not constitute legal advice nor does it create an attorney-client relationship. Contact an attorney at Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C. to find out more about the recent decision by the Washington State Supreme Court. 

Public Records Act.

The Public Records Act (“PRA”) applies when an agency is requested to disclose public records.  The Act defines a “public record” as “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”  RCW 42.56.010(3). 

Private Cell Phones.

In 2010, the Washington State Supreme Court ruled that the PRA applied to personal computers utilized by public employees to conduct official business.  O’Neill v. City of Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010).  The Nissen ruling further expands the reach of the PRA.  Following Nissen, communication on an employee’s personal cell phone that is “within the scope of employment” is now subject to the PRA.  The Court also limited the scope of the PRA by stating that purely personal communications which relate to work are not subject to the PRA.  Only those communications that are made “when the job requires it, the employer directs it, or it furthers the employer’s interests” are subject to the PRA.

Search of Private Cell Phones.

The Court is mindful of the “wealth of detail” that is often contained on a person’s personal cell phone.  The Court recognized that “the public’s statutory right to public records does not extinguish an individual’s constitutional rights to private information.”  Therefore, when performing an adequate search of a private cell phone for public records, the employee must search “their files, devices and accounts for records responsive to a relevant PRA request.”  The employees “must produce any public records to the employer agency.”  If an employee chooses to withhold a record from the employer, he or she “must submit an affidavit with facts sufficient to show the information is not a ‘public record’ under the PRA.”

Public employers and employees should be mindful of the PRA when utilizing personal devices to conduct public business.

Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C. attorneys advise clients in a variety of complex areas, including advising municipal entities and public employers on the disclosure requirements of the PRA.  Navigate to the Contact page to speak with an attorney today.

Jeffrey R. Galloway is an associate at Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C., in Spokane, Washington.  Mr. Galloway’s practice emphasizes civil litigation, employment law, medical malpractice, municipal law, and other complex litigation.

Disclaimer:  Accessing this website and the content above does not create an attorney-client relationship and does not constitute legal advice for any particular situation.