Nissen v. Pierce Cnty.

• Decision Date: 09 September 2014
• Docket Number: No. 44852–1–II.,44852–1–II.
• Citation: 333 P.3d 577
• Court: Washington Court of Appeals
• Parties: Glenda NISSEN, an individual, Appellant, v. PIERCE COUNTY, a public agency; Pierce County Prosecutor's Office, a public agency, Respondent. Prosecutor Mark Lindquist, Intervenor.

333 P.3d 577

Glenda NISSEN, an individual, Appellant,

v.PIERCE COUNTY, a public agency; Pierce County Prosecutor's Office, a public agency, Respondent.

Prosecutor Mark Lindquist, Intervenor.

No. 44852–1–II.

Court of Appeals of Washington,

Division 2.

Sept. 9, 2014.

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

Daniel Ray Hamilton, Attorney at Law, Michael Lee Sommerfeld, Pierce County Prosecutors Office, Tacoma, WA, for Respondent.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, for Respondent Intervenor.

Pamela Beth Loginsky, Washington Assoc of Prosecuting Atty, Olympia, WA, for Amicus Curiae on behalf of Wa Association of Prosecuting Attotneys.

Peter B. Gonick, Washington Attorney General's Office, Olympia, WA, for Amicus Curiae on behalf of General of Washington.

Judith A. Endejan, Garvey Schubert Barer, Seattle, WA, for Amicus Curiae on behalf of Wa COAlition for Open Government.

Ramsey E. Ramerman, City of Everett, Everett, WA, for Amicus Curiae on behalf of Washington State Association of Municipal.

Anita Hunter, Washington Federation of State Employees, Olympia, WA, for Amicus Curiae on behalf of Wa Federation of State Emp International Assoc of Fire Fighters.

HUNT, J.

¶ 1 Glenda Nissen appeals the superior court's CR 12(b)(6) dismissal of her Public Records Act (PRA) ¹ action against Pierce County and the Pierce County Prosecutor's Office (County); she also appeals several other related superior court orders. At issue is whether a government employee's private cellular telephone call log records and text messages are “public records” subject to disclosure under the PRA. We hold that (1) call logs for a government official's private cellular phone constitute “public records” only with regard to the calls that relate to government business and only if these call logs are used or retained by a government agency; (2) text messages sent or received by a government official constitute “public records” only if the text messages relate to government business; and (3) because some of the private cellular phone call logs and text messages Nissen requested may qualify as “public records,” the superior court erred in granting the County's CR 12(b)(6) motion to dismiss her PRA complaint. We also hold that the superior court did-not err in staying discovery until after the CR 12(b)(6) hearing. We reverse the superior court order granting the County's motion to dismiss and remand to the superior court to reinstate Nissen's action and to develop the record.²

FACTS

I. Public Records Requests

¶ 2 Glenda Nissen is a detective with the Pierce County Sheriff's Department (Department) and a member of the Pierce County Deputy Sheriff's Guild (Guild). The Department hired her in 1997; she has worked there as a detective since 2000. 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.

¶ 3 In connection with a separate whistleblower action that Nissen filed, ³ the County produced (1) records showing that Lindquist generally used his County-provided cellular phone less than 10 minutes per month, and (2) heavily redacted records of Lindquist's personal cellular phone use. These redacted personal cellular phone call logs showed: 9 work-related calls totaling 41 minutes on August 3, 2011; 13 work-related calls totaling 72 minutes on August 2, 2011; 10 work-related calls totaling 46 minutes on June 7, 2010; and 16 work-related text messages on August 2 and 3, 2011.

¶ 4 On June 3, 2011, Nissen submitted a PRA request asking the County to preserve “any and all ... cellular telephone records” for Lindquist's personal cellular telephone number. Clerk's Papers (CP) at 29. On August 3, Nissen sent another PRA request to the County, which stated:

Please produce any and all of Mark Lindquist's cellular telephone records for number 253–861–[redacted here but provided in Nissen's records request ⁴] or any other cellular telephone he uses to conduct his business including text messages from August 2, 2011.

CP at 15.

¶ 5 On September 16, the County produced the first installment of requested records; on September 28 the County was “prepared” to release the remaining records that it considered responsive to Nissen's request. CP at 16. The County also provided a log of exemptions that it had used to support redacting the produced records. These claimed exemptions variably cited “RCW 42.56.050”; “Invasion of Privacy”; “Non–Public Information, Personal Phone Calls”; “Non–Public Information, Last 4 digits of employee's personal phone number redacted”; “Residential or personal wireless phone numbers, last 4 digits redacted”; “Non–Public Personal Phone Calls”; or “Non–Public Personal Text Messages.” CP at 88.

¶ 6 On September 13, Nissen submitted another PRA request, which stated, “The new public records request is for Mark Lindquist's cellular telephone records for number 253–861–[redacted here but stated in the records request] for June 7, [2010].” ⁵ CP at 17. This request, however, omitted Nissen's previous request's qualifier that the records be work related. The County responded on September 19 with heavily redacted records of Lindquist's personal cellular phone use and an exemption log citing the same exemptions it had previously cited when it produced records in response to Nissen's earlier request.

II. Procedure

¶ 7 On October 26, 2011, Nissen sued the County, asserting that it had claimed improper exemptions and had wrongfully redacted records in responding to her PRA requests.⁶Lindquist intervened.⁷ The superior court entered orders (1) striking and sealing all court filing references disclosing the last four digits of Lindquist's personal cellular phone number, and (2) staying all discovery pending a hearing on the County's CR 12(b)(6) motion to dismiss.⁸ Later ruling that private cellular phone records of elected government officials are not public records subject to the PRA, the superior court granted the County's motion to dismiss Nissen's complaint. ⁹ The superior court later denied Nissen's motion for reconsideration.

¶ 8 Nissen sought direct review by the Washington State Supreme Court of the superior court's orders (1) striking and sealing Lindquist's personal cellular phone number, (2) postponing discovery until after the hearing on the County's motion to dismiss, (3) dismissing her complaint, and (4) denying her motion for reconsideration. On May 1, 2013, the Supreme Court transferred Nissen's appeal to our court.

ANALYSIS

¶ 9 Nissen argues that the PRA does not, as a matter of law, insulate Lindquist's personal cellular phone call logs and text messages from public records release requests, especially where such records contain communications about government business.¹⁰ To the extent that an elected public official uses a private cellular phone to conduct government business, we agree.

I. Standard and Scope of Review

¶ 10 We review de novo a superior court's CR 12(b)(6) dismissal of a plaintiff's action. Burton v. Lehman, 153 Wash.2d 416, 422, 103 P.3d 1230 (2005). Dismissal under CR 12(b)(6) is appropriate only “if ‘it appears beyond doubt that the plaintiff cannot prove any set of facts which would justify recovery.’ ” Burton, 153 Wash.2d at 422, 103 P.3d 1230 (quoting Tenore v. AT & T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104 (1998)). We presume Nissen's allegations to be true; and we “ ‘may consider hypothetical facts not included in the record.’ ” Burton, 153 Wash.2d at 422, 103 P.3d 1230 (quoting Tenore, 136 Wash.2d at 330, 962 P.2d 104).

¶ 11 We interpret the PRA in light of the principle that full access to information concerning the conduct of every level of government is a fundamental and necessary precondition to the sound governance of a free society. Neighborhood Alliance of Spokane County v. Spokane County, 172 Wash.2d 702, 714–15, 261 P.3d 119 (2011). We balance this free and open government principle against the countervailing principle that individuals, including government employees, should be free from unreasonable searches and intrusions into their private affairs. Wash. Const. art. I § 7; U.S. Const. amend. IV; see Freedom Found. v. Gregoire, 178 Wash.2d 686, 695, 310 P.3d 1252 (2013) (“PRA must give way to constitutional mandates”).

II. CR 12(b)(6) Dismissal of PRA Claim

¶ 12 The PRA applies only to requests for “public records,” which consist of three elements: (1) “any writing”; (2) “containing information relating to the conduct of government or the performance of any governmental or proprietary function”; (3) “prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” RCW 42.56.010(3). Washington courts “liberally construe” the term “public record” as referring to “nearly any conceivable government record related to the conduct of government.” O'Neill v. City of Shoreline, 170 Wash.2d 138, 147, 240 P.3d 1149 (2010). We address each of these three public record components in turn.

A. Writing

¶ 13 Nissen's PRA requests included two types of “writings”: (1) a call detail log ¹¹ 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. Both types of records fit within the PRA's broad definition of a “writing” as

[h]andwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations...