Tiberino v. Spokane County

• Decision Date: 14 December 2000
• Docket Number: No. 18870-1-III., No. 18830-2-III
• Court: Washington Court of Appeals
• Parties: Gina TIBERINO, Appellant, v. SPOKANE COUNTY, Office of the Prosecuting Attorney; Cowles Publishing Company; and Spokane Television, Inc., Respondents.

13 P.3d 1104

103 Wn. App. 680

103 Wash. App. 680

Gina TIBERINO, Appellant, v. SPOKANE COUNTY, Office of the Prosecuting Attorney; Cowles Publishing Company; and Spokane Television, Inc., Respondents.

Nos. 18830-2-III, 18870-1-III.

Court of Appeals of Washington, Division 3, Panel Six.

December 14, 2000.

Mary E. Schultz, Spokane, for Appellant.

James P. Emacio, Deputy Prosecutor, Spokane, for Spokane County.

Laurel H. Siddoway, Randall & Danskin, Spokane, for Spokane Television, Inc.

KURTZ, C.J.

Gina Tiberino's employment as a secretary for the Spokane County Prosecutor's Office was terminated based on her unsatisfactory work performance, including her use of e-mail for personal matters. Ms. Tiberino threatened the County with a lawsuit. In response, the County printed all e-mails Ms. Tiberino sent or received from her work computer. The County subsequently received public records requests from Cowles Publishing Company and Spokane Television, Inc., for the e-mails. The court denied Ms. Tiberino an injunction preventing release of the e-mails. Ms. Tiberino appeals contending: (1) the court erred by finding Ms. Tiberino's e-mails were public records, (2) the court erred by finding the e-mails were not exempt from disclosure as personal information, (3) disclosure of the e-mails constituted a violation of Ms. Tiberino's right to privacy, and (4) Ms. Tiberino is entitled to her attorney fees. We agree with the superior court that the e-mails are "public records" that come within the scope of the public records act (the Act). But we further conclude that the e-mails were exempt from disclosure as personal information. For that reason, we reverse the order of the superior court.

FACTS

On August 26, 1998, Gina Tiberino was hired as a secretary in the Prosecuting Attorney's Office and assigned to the Special Assault Unit. Spokane County provided Ms. Tiberino with a personal computer equipped with electronic communications applications (e-mail). As part of her employee orientation, Ms. Tiberino attended a program that advised employees about their use of electronic communications. Employees were told that (i) Spokane County Information Systems Department had the capability of monitoring all e-mail; (ii) not to put anything on e-mail that they would not want on the front page of the newspaper, and (iii) County equipment was not for personal use. These admonitions were consistent with e-mail policies formally adopted by both the County and the Prosecutor.

In the early part of October 1998, the Prosecutor's Office Administrator, Travis Jones, received complaints from Ms. Tiberino's co-workers that she was using her computer to send personal e-mail via the Internet. One co-worker indicated that excessive amounts of personal e-mail were being sent by Ms. Tiberino and that the e-mail contained coarse and vulgar language. On October 13, 1998, Mr. Jones observed that when Ms. Tiberino left for the day, she failed to turn off her computer. As a result of the complaints from her co-workers, he viewed her "sent" mail folder.

Mr. Jones did not read the contents of all Ms. Tiberino's e-mail, but only randomly selected e-mail messages to determine whether or not they were work-related or of a personal nature. The "sent" mail folder revealed that approximately 214 e-mail messages had been sent. Of those messages, 200 were sent via the Internet to Ms. Tiberino's sister or mother. Approximately 10 to 15 appeared to be work-related. Mr. Jones recommended to Ms. Tiberino's supervisor that she be given an Event Report reminding her that County computers were not to be used for personal business and informing her that the volume of her personal e-mail strongly suggested that she was compromising her job responsibilities.

On November 10, 1998, Ms. Tiberino was discharged for unsatisfactory work performance. At the time of her discharge, Ms. Tiberino was told that she had alienated co-workers with her preoccupation with personal issues. Specifically, she was told that her co-workers resented performing her assigned job responsibilities while she was spending her time using the e-mail for nonbusiness purposes.

Approximately one month before Ms. Tiberino was discharged, she had advised her supervisor that over the prior weekend, she had been raped. Five weeks later, she was discharged from her position with the Special Assault Unit due to her preoccupation with personal issues.

On December 1, 1998, Ms. Tiberino's attorney sent a letter to the Prosecutor's Office claiming that Ms. Tiberino had been unlawfully discharged and demanding reinstatement. The letter threatened litigation. Ms. Tiberino ultimately filed a complaint with the Washington State Human Rights Commission.

As a result of Ms. Tiberino's threatened litigation, the Prosecutor's Office printed all e-mails in Ms. Tiberino's "sent" mail folder. The "sent" mail folder now contained 551 sent items. Of those, 467 were personal messages sent to a total of five addresses. Each of the 467 messages were time-stamped over a 40 working-day time frame between September 18, 1998, and November 10, 1998.

On December 16, 1998, a reporter for Cowles Publishing Company made a public record request to the Prosecutor's Office requesting release and copies of all e-mail correspondence received and generated by Ms. Tiberino. Thereafter, the Prosecutor's Office advised Ms. Tiberino's attorney that the 3,805 paginated/printed e-mails, with 147 pages redacted in whole or in part, would be made available to the newspaper. However, Ms. Tiberino was afforded sufficient time under RCW 42.17.330 to obtain injunctive relief to prohibit the release of her e-mails.

At Ms. Tiberino's request, the superior court issued a temporary restraining order preventing the Prosecutor from releasing her e-mail. The Cowles Publishing Company intervened in the litigation but later filed pleadings requesting that it be dismissed from the lawsuit. Spokane Television, Inc., subsequently intervened. Following oral argument and an in camera review performed at the request of the Prosecutor, the superior court held that Ms. Tiberino's e-mail communications were public records under RCW 42.17.020(36) and, except for the 147 redacted pages, were subject to disclosure to Spokane Television.

Ms. Tiberino's motion for reconsideration was denied. Ms. Tiberino filed a second motion for reconsideration and filed an appeal to the Washington Supreme Court. When the second motion for reconsideration was denied, Ms. Tiberino filed this appeal and moved for voluntary withdrawal of the Supreme Court appeal and transfer of the case to this court. The Supreme Court appeal was consolidated with this case.

ANALYSIS

Did the court err by concluding that Ms. Tiberino's e-mails were public records?

Because this case presents a question of law that was decided by the trial court solely on the basis of documentary evidence and legal arguments, review is de novo. Amren v. City of Kalama, 131 Wash.2d 25, 32, 929 P.2d 389 (1997); Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 35-36, 769 P.2d 283 (1989). The party seeking to prevent disclosure—in this case Ms. Tiberino — bears the burden of proof. Spokane Police Guild, 112 Wash.2d at 35, 769 P.2d 283. In reviewing an agency's action with regard to a public disclosure request, we must consider the public records act's policy that "free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment[.]" RCW 42.17.340(3). To fulfill the statutory purpose, courts are to liberally construe the Act's disclosure provisions and narrowly construe its exemptions. Limstrom v. Ladenburg, 136 Wash.2d 595, 604, 963 P.2d 869 (1998) (citing RCW 42.17.251); Progressive Animal Welfare Soc'y (PAWS) v. University of Washington, 125 Wash.2d 243, 251, 884 P.2d 592 (1994).

Generally, the Act requires disclosure of public records by governmental entities upon request unless exempted. Amren, 131 Wash.2d at 31, 929 P.2d 389. A "public record," subject to disclosure under the Act

includes [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.

Confederated Tribes v. Johnson, 135 Wash.2d 734, 746, 958 P.2d 260 (1998) (quoting RCW 42.17.020(36)).

Ms. Tiberino does not dispute that the e-mail records are writings and that they are prepared, owned, used or retained by a state agency. She contends that the e-mails are not "public records" because the second element of the definition of public record is not met. She argues that the e-mails do not contain any information relating to the conduct of governmental or proprietary function.

In answering the threshold inquiry whether a document is a public record, the courts have broadly interpreted this second element of the statutory definition of public record. For example, in Dawson v. Daly, 120 Wash.2d 782, 789, 845 P.2d 995 (1993), the court held that documents compiled by a prosecutor for use in cross-examining a defense expert in child sexual abuse cases were documents relating to the performance of prosecutorial functions, were used by the prosecutor's office in carrying out those governmental functions and, therefore, were public records. In Servais v. Port of Bellingham, 127 Wash.2d 820, 828, 904 P.2d 1124 (1995), the court concluded that research data—a cash flow analysis prepared by a consulting firm for the purposes of planning by the Port—was a writing which related to the conduct and performance of a governmental function and, thus, was a public record. In Oliver v. Harborview Medical Center, 94 Wash.2d 559, 566, 618 P.2d 76, 26 A.L.R.4th 692 (1980), the court held that medical records of a patient treated at a public hospital were public records. The court reasoned that...