Nissen v. Pierce Cnty.

Decision Date27 August 2015
Docket NumberNo. 90875–3.,90875–3.
Citation357 P.3d 45,183 Wash.2d 863
PartiesGlenda NISSEN, an individual, Respondent, v. PIERCE COUNTY, a public agency, Pierce County Prosecuting Attorney's Office, a public agency, and Prosecutor Mark Lindquist, Petitioners.
CourtWashington Supreme Court

Mark Evans Lindquist, Pierce County Prosc. Office, Daniel Ray Hamilton, Attorney at Law, Tacoma, WA, Philip Albert Talmadge, Talmadge/Fitzpatrick, Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, for Petitioners.

Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, for Respondent.

Anita Hunter, Washington Federation of State Employees, Olympia, WA, amicus counsel for Washington Federation of State Employees.

Martin S. Garfinkel, Schroeter Goldmark & Bender, Seattle, WA, amicus counsel for International Association of Fire Fighters.

Aimee Strand Iverson, WA Education Association, Federal Way, WA, amicus counsel for Washington Education Association.

Jeffrey Julius, Vick, Julius, McClure, P.S., Seattle, WA, amicus counsel for Washington Council of Police and Sheriffs.

Jeffrey Julius, Vick, Julius, McClure, P.S., Seattle, WA, amicus counsel for Washington State Patrol Troopers Association.

Scott R. Peters, Pierce County Prosecuting Attorney, Tacoma, WA, amicus counsel for Pierce County Prosecuting Attorneys Association.

Ramsey E. Ramerman, City of Everett, Everett, WA, amicus counsel for Washington State Association of Municipal Attorneys.

Peter B. Gonick, Callie Anne Castillo, WA State Attorney General Office, Olympia, WA, amicus counsel for Attorney General of Washington.

Judith A. Endejan, Garvey Schubert Barer, Seattle, WA, amicus counsel for Washington COAlition for Open Government.

William John Crittenden, Patrick Denis Brown, Attorney at Law, Seattle, WA, amicus counsel for League of Women Voters of Washington.

Nancy Lynn Talner, Douglas B. Klunder, Attorney at Law, Seattle, WA, amicus counsel for Aclu.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, amicus counsel for Washington Association of Prosecuting Attorneys.

Opinion

YU, J.

¶ 1 Five years ago we concluded that the Public Records Act (PRA), chapter 42.56 RCW, applied to a record stored on a personal computer, recognizing that [i]f government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.” O'Neill v. City of Shoreline, 170 Wash.2d 138, 150, 240 P.3d 1149 (2010). Today we consider if the PRA similarly applies when a public employee uses a private cell phone to conduct government business. We hold 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.

BACKGROUND

¶ 2 This case involves two requests for public records that Glenda Nissen, a sheriff's detective, sent to Pierce County (County). Both requests asked for records related to Pierce County Prosecutor Mark Lindquist. One request stated:

Please produce any and all of Mark Lindquist's cellular telephone records for number 253–861–[XXXX1 ] or any other cellular telephone he uses to conduct his business including text messages from August 2, 2011.

Clerk's Papers (CP) at 15. The other stated:

The new public records request is for Mark Lindquist's cellular telephone records for number 253–861–[XXXX] for June 7, [2010].[ 2 ]

Id. at 17 (second alteration in original). The telephone number identified in these requests is connected to Lindquist's private cell phone. There is no dispute that Lindquist personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

¶ 3 In response to these requests, Lindquist obtained and provided the County with two types of records. The first, which the parties refer to as the “call log,” is similar to an itemized statement customers might receive from their service provider each month.

It contains information about the dates and times of calls made and received, the length of those calls, and the telephone number of the incoming or outgoing call. Lindquist's service provider, Verizon Wireless, generated the call log and provided it to Lindquist at his request. He voluntarily produced it to the County.

¶ 4 The second type of record reveals information about text messages Lindquist sent and received over two days (“text message log”). The text message log does not reveal the content of those messages. Instead, similar to the call log, it itemizes the date and time of each message and provides the telephone number of the corresponding party. Lindquist also obtained the text message log from Verizon after receiving Nissen's PRA requests and produced it to the County.

¶ 5 The County reviewed the call and text message logs and disclosed partially redacted copies to Nissen. Accompanied by an exemption log, the redactions conceal line items for calls and text messages that Lindquist self-described as personal in nature. The remaining unredacted portions relate to calls and text messages that the County and Lindquist admit might be work related. See CP at 490 (Decl. of Mark Lindquist in Supp. of Mot. To Intervene & Join) (“I authorized the release of records of calls that were related to the conduct of government or the performance of any governmental or proprietary function.”); Pierce County's Pet. for Review at 3 ([T]he Prosecutor authorized the release of records of calls that ‘may be work related.’); Lindquist's Pet. for Review at 10 ([T]he Petitioner provided those communications that may be ‘work related.’). Thus nearly half of the text messages Lindquist sent or received and many of his phone calls during the relevant period potentially related to his job as the elected prosecutor. The County did not produce the contents of any text message, however, though copies of them exist on Verizon's servers.3

¶ 6 Dissatisfied with the County's disclosures, Nissen sued the County in Thurston County Superior Court. She sought an in camera review of Lindquist's text messages and the call and text message logs to determine if all of the information is a public record. Lindquist intervened and moved for a temporary restraining order and preliminary injunction to enjoin further disclosure of records related to his cell phone. He argued that compelling him to disclose his text messages would violate the state and federal constitutions and was prohibited by state and federal statutes. CP at 502–18. That same day the County moved to dismiss Nissen's complaint under CR 12(b)(6). It argued the records at issue could not be public records as a matter of law, because they related to a personal cell phone rather than a county-issued one.

¶ 7 The trial court consolidated the two motions for a hearing. After argument, the trial judge granted the County's CR 12(b)(6) motion, determining as a matter of law that records of private cell phone use can never be public records under the PRA. The Court of Appeals reversed. Nissen v. Pierce County, 183 Wash.App. 581, 333 P.3d 577 (2014). Applying the PRA's definition of “public record,” the Court of Appeals held that Lindquist's text messages were public records because he “prepared” them in his official capacity. Id. at 593–94, 333 P.3d 577 (citing RCW 42.56.010(3) ). The court further held that the factual record was not sufficiently developed on the issue of whether the call logs also qualify as “public record[s],” noting that the issue turned on whether Lindquist used or retained the logs in his capacity as prosecuting attorney. Id. at 595, 333 P.3d 577.

¶ 8 We granted the County's and Lindquist's petitions for review, Nissen v. Pierce County, 182 Wash.2d 1008, 343 P.3d 759 (2015), and now affirm in part and remand with further instructions.

STANDARD OF REVIEW

¶ 9 We review de novo a CR 12(b)(6) order dismissing a complaint. Dismissal is proper only if we conclude that “the plaintiff cannot prove ‘any set of facts which would justify recovery.’ Kinney v. Cook, 159 Wash.2d 837, 842, 154 P.3d 206 (2007) (quoting Tenore v. AT & T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104 (1998) ). Motions to dismiss are granted “only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.” Hoffer v. State, 110 Wash.2d 415, 420, 755 P.2d 781 (1988) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice § 357, at 604 (1969)).

¶ 10 Our standard of review in PRA cases is also de novo. Neigh. All. of Spokane County v. Spokane County, 172 Wash.2d 702, 715, 261 P.3d 119 (2011).

ANALYSIS

¶ 11 Before turning to the questions this case presents, it is helpful to clarify the questions it does not. This case does not involve a public employer seizing an employee's private cell phone to search for public records. It does not involve a records request for every piece of data on a smartphone. And it does not involve a citizen suing a public employee for access to the employee's phone. Instead, this is an action against an agency for two types of records that, while potentially related to the agency's public business, are in the exclusive control of the agency's employee. This case asks whether those records can nonetheless be “public records” the agency must disclose and, if so, whether there are limits to how the agency may search for and review those records.

¶ 12 With that in mind, we first interpret the PRA to determine if a record of government business conducted on a private cell phone is a “public record,” as the PRA defines the term. We then apply that definition to the specific records here—the call and text message logs and text messages. Finally, we address the mechanics of searching for and obtaining public records held by or in the control of public employees. As explained below, we hold that text messages sent or received by Lindquist in his official capacity can be public records...

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