      FI~E\
      1~1 O,PICI . ,
         CLERICS
aJPR6ME COURT, ITlVI 0/1. .-.al

:   DATE     &IIG   z'   201~
?~·g~



           IN THE SUPREME COURT OF THE STATE OF WASHINGTON

     GLENDA NISSEN, an individual                 )
                                                  )
                             Respondent,          )
                                                  )
                                                  )   No.   90875~3
                                                  )
             v.                                   )
                                                  )
                                                  )   En Bane
                                                  )
     PIERCE COUNTY, a public agency,              )
     PIERCE COUNTY PROSECUTING                    )
     ATTORNEY'S OFFICE, a public                  )
     agency, and PROSECUTOR MARK                  )   Filed      AUG 2 7 2015
     LINDQUIST,                                   )
                                                  )
                                   Petitioners.   )
                                  _____ )
            Yu, J.-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."

    0 'Neill v. City ofShoreline, 170 Wn.2d 138, 150, 240 P.3d 1149 (2010). Today we
Nissen v. Pierce County, No. 90875-3

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

      This case involves two requests for public records that Glenda Nissen, a

sheriffs 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-[XXXX 1] 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]J2]

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.




       1
           Though redacted in the record before us, the requests contained the full 10-digit telephone
number.
       2 The County has not challenged the breadth or specificity of these requests, and we pass
no opinion.


                                                   2
Nissen v. Pierce County, No. 90875-3

      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.

      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.

       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



                                           3
Nissen v. Pierce County, No. 90875-3

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 V erizon' s servers. 3

       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




       3 The messages apparently no longer exist on Lindquist's phone. In conjunction with her
PRA requests, however, Nissen's lawyer contacted Verizon and asked it to preserve all
"communications and data [on Lindquist's account] ... pending the issuance of a subpoena or
other legal process." CP at 200. The propriety of that request is not before us.


                                              4
Nissen v. Pierce County, No. 90875-3

CR 12(b)(6). It argued the records at issue could not be public records as a matter

oflaw, because they related to a personal cell phone rather than a county-issued one.

      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 Wn. 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 (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.

      We granted the County's and Lindquist's petitions for review, Nissen v.

Pierce County, 182 Wn.2d 1008, 343 P.3d 759 (2015), and now affirm in part and

remand with further instructions.

                             STANDARD OF REVIEW

       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 Wn.2d 837, 842, 154 P.3d 206 (2007)



                                           5
Nissen v. Pierce County, No. 90875-3

(quoting Tenore v. AT&T Wireless Servs., 136 Wn.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 Wn.2d 415,420,755 P.2d 781 (1988)

(quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE§

357, at 604 (1969)).

      Our standard of review in PRA cases is also de novo. Neigh. All. of Spokane

County v. Spokane County, 172 Wn.2d 702, 715, 261 P.3d 119 (2011).

                                    ANALYSIS

      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.




                                          6
Nissen v. Pierce County, No. 90875-3

      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 of the County, regardless of

the public or private nature of the device used to create them; and we order Lindquist

to obtain, segregate, and produce those public records to the County.

I. THE PRA REACHES EMPLOYEE-OWNED CELL PHONES WHEN USED FOR AGENCY
                             BUSINESS

      Our analysis begins with the text of the PRA. By its plain language, the PRA

applies "when an 'agency' is requested to disclose 'public records.'" Dawson v.

Daly, 120 Wn.2d 782, 788, 845 P.2d 995 (1993). Because those are both defined

terms, we must interpret the statutory definitions to decide if records of public

business an employee conducts on his or her private cell phone are public records.

Senate Republican Campaign Comm. v. Pub. Disclosure Comm 'n, 133 Wn.2d 229,

239, 943 P.2d 1358 (1997). The PRA defines "agency" very broadly as

       all state agencies and all local agencies. "State agency" includes every
       state office, department, division, bureau, board, commission, or other
       state agency. "Local agency" includes every county, city, town,
       municipal corporation, quasi-municipal corporation, or special purpose



                                          7
Nissen v. Pierce County, No. 90875-3

      district, or any office, department, division, bureau, board, commission,
      or agency thereof, or other local public agency.

RCW 42.56.010(1). This definition in turn affects what information is a "public

record" since it is incorporated into the statutory definition of that term. Under the

PRA, a "public record" is

      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) (emphasis added).

            The definitions of "agency" and "public record" are each comprehensive

on their own and, when taken together, mean the PRA subjects "virtually any record

related to the conduct of government" to public disclosure. 4 0 'Neill, 170 Wn.2d at

147. This broad construction is deliberate and meant to give the public access to

information about every aspect of state and local government. See LAws                 OF   1973,

ch. 1, § 1(11 ). As we so often summarize, the PRA "is a strongly worded mandate

for broad disclosure of public records." Yakima County v. Yakima Herald-Republic,

170 Wn.2d 775,791,246 P.3d 768 (2011) (quoting Soter v. Cowles Publ'g Co., 162

Wn.2d 716, 731, 174 P.3d 60 (2007) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d

123, 127, 580 P.2d 246 (1978))).



       4
          Disclosing that a public record exists in response to a request does not mean the record
will ultimately be produced. Agencies must consider whether any applicable exemption precludes
production of part or all of a record. Sanders v. State, 169 Wn.2d 827, 836, 240 P.3d 120 (2010).


                                                8
Nissen v. Pierce County, No. 90875-3

 A. Agency Employees Working within the Scope of Employment Create Public
                                Records

      Despite that mandate, the County argues public employees can avoid the PRA

simply by using a private cell phone, even if they use it for public business and even

if the same information would be a public record had they used a government-issued

phone instead. 5 The County finds this large gap in the PRA by isolating the statute's

definition of "agency," which does not expressly refer to individual employees as

agencies.    RCW 42.56.01 0(1 ).        Since county employees like Lindquist are not

literally a "county," the County argues its employees and the records they control

are completely removed from the PRA's scope.

       While that reasoning may have superficial appeal, it misses the central

question here. We cannot interpret statutory terms oblivious to the context in which

they are used. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10-11,

43 P.3d 4 (2002). As this case does not ask if a public employee is an "agency" with

independent obligations separate from those the PRA imposes on the employer,

interpreting "agency" in isolation is unhelpful. Nissen's request was directed at the

County, not Lindquist. 6 Our task instead is to decide if records that a public


       5
          The County admits that this is the natural result of its interpretation of the PRA. Wash.
Supreme Court oral argument, Nissen v. Pierce County, No. 90875-3 (June 11, 2015), at 3 min., 4
sec., and 6 min., 57 sec., audio recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org.
        6 Whether an elected official is independently subject to the PRA is an unsettled question.

See Bldg. Indus. Ass 'n of Wash. v. McCarthy, 152 Wn. App. 720, 746, 218 P.3d 196 (2009). Here,



                                                9
Nissen v. Pierce County, No. 90875-3

employee generates while working for an agency are "public records" that the

agency must disclose. Thus we must interpret the statutory definitions of "agency"

and "public record" together, keeping in mind the purpose those definitions are

intended to further. See Hearst Corp., 90 Wn.2d at 128.

       One characteristic of a public record is that it is "prepared, owned, used, or

retained by any state or local agency." RCW 42.56.010(3). The County is correct

that every agency the PRA identifies is a political body arising under law (e.g., a

county). But those bodies lack an innate ability to prepare, own, use, or retain any

record. They instead act exclusively through their employees and other agents, and

when an employee acts within the scope of his or her employment, the employee's

actions are tantamount to "the actions of the [body] itself." Houser v. City of

Redmond, 91 Wn.2d 36, 40, 586 P.2d 482 (1978) (as to cities); Hailey v. King

County, 21 Wn.2d 53, 58, 149 P.2d 823 (1944) (as to counties). Integrating this

basic common law concept into the PRA, a record that an agency employee prepares,

owns, uses, or retains in the scope of employment is necessarily a record "prepared,

owned, used, or retained by [a] state or local agency." RCW 42.56.010(3).




however, Nissen did not sue Lindquist, either in his individual or official capacity. She instead
sued the County, alleging that Lindquist's use of his cell phone resulted in public records of the
County; Lindquist is a party only because he intervened to enjoin disclosure. The relevant question
then is not whether Lindquist is individually subject to the PRA but, rather, whether records he
handles in his capacity as the prosecutor are county public records.


                                                10
Nissen v. Pierce County, No. 90875-3

       That interpretation is the only logical one considering how agencies conduct

business and carry out their obligations under the PRA. See Dawson, 120 Wn.2d at

789 (public records were "prepared by the prosecutor's office" because two

employees created and compiled them).          If the PRA did not capture records

individual employees prepare, own, use, or retain in the course of their jobs, the

public would be without information about much of the daily operation of

government. Such a result would be an affront to the core policy underpinning the

PRA-the public's right to a transparent government. That policy, itself embodied

in the statutory text, guides our interpretation of the PRA. RCW 42.56.030; LAWS

OF   1973, ch. 1, § 1(11); Hearst Corp., 90 Wn.2d at 128.

           B. The PRA Captures Work Product on Employee Cell Phones

        With that understanding, it is clear that an agency's "public records" include

the work product of its employees. And we find nothing in the text or purpose of

the PRA supporting the County's suggestion that only work product made using

agency property can be a public record. To the contrary, the PRA is explicit that

information qualifies as a public record "regardless of [its] physical form or

characteristics." RCW 42.56.01 0(3 ). In 0 'Neill we held that a city official stored a

public record on a private computer in her home by using the computer for city

business, 170 Wn.2d at 150, which is consistent with the idea that employees can

use their own property and still be within the scope of their employment.



                                          11
Nissen v. Pierce County, No. 90875-3

Dickinson v. Edwards, 105 Wn.2d 457, 467-68, 716 P.2d 814 (1986). There is no

reason to treat cell phones differently. We hold that records an agency employee

prepares, owns, uses, or retains on a private cell phone within the scope of

employment can be a public record if they also meet the other requirements ofRCW

42.56.010(3).

      Applying the PRAto employee cell phone use is not new. Though an issue

of first impression in this court, many state and local agencies implementing the

PRA already conclude that using a private cell phone to conduct public business can

create a public record. Over the last several years, agencies have begun adopting

policies about private cell phone use and advising employees of the agencies'

obligation to preserve all public records. Just as examples:

   • "Employees utilizing cell phones for City business must not utilize
     written cell phone capabilities such as text messaging or email for City
     business unless such phone is synchronized with the City's computer
     system so that such electronic records can be maintained according to
     the State records retention requirements."         CITY OF PROSSER,
     PERSONNEL POLICY MANUAL 32 (2009) (Policy 403: Cell Phone
     Allowance).

   • "All county business generated on personal mobile devices are subject
     to the Public Records Act. ... Text messages sent and received on a
     personal mobile device are not stored in any other form. Employees
     shall not use texting for any County business." THURSTON COUNTY
     ADMINISTRATIVE MANUAL (2012) § 10 (Personal Mobile Device
     Policy).

   • "Employees should be aware that work-related texts and voice
     messages on cell phones are public records subject to the Public
     Records Act. Employees have a duty to maintain such records in

                                         12
Nissen v. Pierce County, No. 90875-3

      accordance with the Washington Local Government Record Retention
      Schedules." CITY OF GRANDVIEW, PERSONNEL POLICY MANUAL 88
      (2013) (use of personal cellular telephones to conduct city business),
      http://www.grandview.wa.us/wp-content/uploads/2013/03/
      Personnel-Policy-Manuall.pdf.

These policies are comparable to many others around the state and are consistent

with the attorney general's understanding of the PRA. See WAC 44-14-03001(3).

While these interpretations do not bind us, 0 'Neill, 170 Wn.2d at 149, they discredit

the County's assertion that private cell phone use has always been treated as outside

the PRA.

      Similarly unpersuasive is the County's warning that every "work-related"

personal communication is now a public record subject to disclosure. Traditional

notions of principal-agency law alleviate this concern. For information to be a public

record, an employee must prepare, own, use, or retain it within the scope of

employment. An employee's communication is "within the scope of employment"

only when the job requires it, the employer directs it, or it furthers the employer's

interests. Greene v. St. Paul-Mercury Inde.m. Co., 51 Wn.2d 569, 573, 320 P.2d 311

(1958) (citingLunz v. Dep 't ofLabor &Indus., 50 Wn.2d 273, 310 P.2d 880 (1957);

Roletto v. Dep 't Stores Garage Co., 30 Wn.2d 439, 191 P.2d 875 (1948)). This

limits the reach of the PRA to records related to the employee's public

responsibilities. For instance, employees do not generally act within the scope of

employment when they text their spouse about working late or discuss their job on



                                          13
Nissen v. Pierce County, No. 90875-3

social media. Nor do they typically act within the scope of employment by creating

or keeping records purely for private use, like a diary. None of these examples would

result in a public record "prepared, owned, used, or retained" by the employer

agency in the usual case. 7

      Agencies can act only through their employee-agents. With respect to an

agency's obligations under the PRA, the acts of an employee in the scope of

employment are necessarily acts of the "state and local agenc[ies]" under RCW

42.56.010(3). We therefore reject the County's argument that records related to an

employee's private cell phone can never be public records as a matter of law.

Instead, records an employee prepares, owns, uses, or retains within the scope of

employment are public records if they meet all the requirements of RCW

42.56.010(3). This inquiry is always case- and record-specific. Cf Predisik v.

Spokane Sch. Dist. No. 81, 182 Wn.2d 896, 906, 346 P.3d 737 (2015).

     II. APPLYING THE PRATO THE CALL AND TEXT MESSAGE LOGS AND TEXT
                                MESSAGES

       We next apply RCW 42.56.010(3) to the records at issue here-the call and

text message logs and text messages.                To be a public record under RCW

42.56.010(3), information must be (1) a writing (2) related to the conduct of




       7
        We offer these generic illustrations in response to hypotheticals raised by the County and
some amici. Of course, the facts of every case vary. We do not intend these illustrations to have
precedential effect.


                                               14
Nissen v. Pierce County, No. 90875-3

government or the performance of government functions that is (3) prepared, owned,

used, or retained by a state or local agency. Confederated Tribes of the Chehalis

Reservation v. Johnson, 135 Wn.2d 734,746, 958 P.2d 260 (1998). The first element

is not in dispute-the parties agree that the call and text message logs and text

messages are "writings" under the PRA. See RCW 42.56.010(4). The remaining

two elements are discussed in turn.

               A. Records Relating to the Conduct of Government

      Public records must "relat[ e] to the conduct of government or the performance

of any governmental or proprietary function." RCW 42.56.010(3). This language

casts a wide net. In Confederated Tribes, for example, we held that records of money

paid by Indian tribes into a common fund related to the conduct of the government

even though the records related primarily to tribal gaming operations. 135 Wn.2d at

739-43. Since the state received money from the common fund, we determined tribal

contributions impacted state government and therefore records of those

contributions were public records. Id. at 748.

      We adopted a similarly broad interpretation in Oliver v. Harborview Med.

Ctr., 94 Wn.2d 559, 618 P.2d 76 (1980), which involved medical records ofpatients

hospitalized at a state-owned facility. The records there unquestionably related to

individual patients and did not explicitly discuss government operations, but we still

held that the records "relat[ ed] to the conduct of government" under RCW



                                         15
Nissen v. Pierce County, No. 90875-3

42.56.010(3). From them the public could learn about the "administration of health

care services, facility availability, use and care, methods of diagnosis, analysis,

treatment and costs, all of which are carried out or relate to the performance of a

governmental or proprietary function." Oliver, 94 Wn.2d at 566.

      Together these cases suggest records can qualify as public records if they

contain any information that refers to or impacts the actions, processes, and functions

of government. 8

           B. Records Prepared, Owned, Used, or Retained by an Agency

      As explained previously, a public record must also be "prepared, owned, used,

or retained" by an agency, which includes an agency employee acting within the

scope of employment. But the parties still quarrel over the meaning of these verbs,

which requires that we further interpret RCW 42.56.010(3). Statutory interpretation

starts with the plain meaning of the language; the plain meaning controls if it is

unambiguous. Campbell, 146 Wn.2d at 11-12. We may use a dictionary to discern

the plain meaning of an undefined statutory term. HomeStreet, Inc. v. Dep 't of

Revenue, 166 Wn.2d 444,451,210 P.3d 297 (2009) (citing Garrison v. Wash. State

Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1996)).




       8
         It is worth repeating that records an employee maintains in a personal capacity will not
qualify as public records, even if they refer to, comment on, or mention the employee's public
duties.


                                               16
Nissen v. Pierce County, No. 90875-3

      "Prepared." "Prepare" is defined as "to put together"; to "MAKE, PRODUCE";

"to put into written form." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

1790 (2002).    This interpretation is consistent with previous cases that treat

"preparing" a record as creating it. See Dawson, 120 Wn.2d at 787 (agency prepared

record by "creat[ing] one ofthe files"); Oliver, 94 Wn.2d at 566 (records of patient's

hospitalization prepared by the hospital).

      "Owned." To "own" a record means "to have or hold [it] as property."

WEBSTER's, supra, at 1612; see also 0 'Neill v. City ofShoreline, 145 Wn. App. 913,

925, 187 P.3d 822 (2008).

       "Used." We previously addressed what it means for an agency to "use" a

record. We broadly interpreted the term in Concerned Ratepayers Ass 'n v. Pub. Uti!.

Dist. No. 1 of Clark County, 138 Wn.2d 950, 960,983 P.2d 635 (1999), holding that

the "critical inquiry is whether the requested information bears a nexus with the

agency's decision-making process." A record that is prepared and held by a third

party, without more, is not a public record. But if an agency "evaluat[es], review[s],

or refer[ s]" to a record in the course of its business, the agency "uses" the record

within the meaning of the PRA. Id. at 962.

      "Retained." To "retain" a record means "to hold or continue to hold [it] in

possession or use." WEBSTER'S, supra, at 1938.




                                             17
Nissen v. Pierce County, No. 90875-3

C. The Text Messages Are Potentially Public Records; the Call and Text Message
                               Logs Are Not

      We now apply those definitions to decide if the complaint sufficiently alleges

that the call logs and text messages are "public records." Absent an allegation that

the County used the call and text message logs, the logs in this case are not public

records. The call and text message logs were prepared and retained by Verizon, and

Nissen does not contend that the County evaluated, reviewed, or took any other

action with the logs necessary to "use" them. Concerned Ratepayers, 138 Wn.2d at

962. Though they evidence the acts of a public employee, the call and text message

logs played no role in County business as records themselves. We hold that the

complaint fails to allege the call and text message logs are "public records" of the

County within the meaning of RCW 42.56.010(3) because the County did nothing

with them.

      We reach a different conclusion as to text messages. Nissen sufficiently

alleges that Lindquist sent and received text messages in his official capacity "to

take actions retaliating against her and other official misconduct." CP at 14. When

acting within the scope of his employment, Lindquist prepares outgoing text

messages by "putting them into written form" and sending them. Similarly, he

"used" incoming text messages when he reviewed and replied to them while within

the scope of employment. Since the County and Lindquist admit that some text




                                         18
Nissen v. Pierce County, No. 90875-3

messages might be "work related," the complaint sufficiently alleges that those

messages meet all three elements of a "public record" under RCW 42.56.010(3).

       Transcripts of the content of those text messages are thus potentially public

records subject to disclosure, consistent with the procedure discussed below.

                      III. SEARCHING FOR PUBLIC RECORDS WITHIN
                                 AN EMPLOYEE'S CONTROL

       We finally turn to the mechanics of searching for and obtaining public records

stored by or in the control of an employee. The County and Lindquist suggest that

various provisions of the state and federal constitutions categorically prohibit a

public employer from obtaining public records related to private cell phone use

without consent. 9 Because an individual has no constitutional privacy interest in a

public record, 10 Lindquist's challenge is necessarily grounded in the constitutional

rights he has in personal information comingled with those public records. We are

mindful that today's mobile devices often contain "a 'wealth of detail about [a

person's] familial, political, professional, religious, and sexual associations."'

State v. Hinton, 179 Wn.2d 862, 869, 319 P.3d 9 (2014) (alteration in original)

(quoting United States v. Jones, 565 U.S._, 132 S. Ct. 945, 955, 181 L. Ed. 2d

911 (2012) (Sotomayor, J., concurring)). As nearly two-thirds of Americans can


       9
           They primarily cite to the Fourth Amendment to the United States Constitution and article
I, section 7 of the Washington Constitution.
         10
            See Nixon v. Adm 'r of Gen. Servs., 433 U.S. 425, 457, 97 S. Ct. 2777, 53 L. Ed. 2d 867
(1977) (noting public officials have "constitutionally protected privacy rights in matters of
personal life unrelated to any acts done by them in their public capacity" (emphasis added)).


                                                19
Nissen v. Pierce County, No. 90875-3

now communicate, access the Internet, store documents, and manage appointments

on their smartphone, cell phones are fast becoming an indispensable fixture in

people's private and professional lives. Text messaging is the most widely used

smartphone feature; e-mail is not far behind. Aaron Smith, US. Smartphone Use in

2015, PEW RESEARCH CTR. (Apr. 1, 2015), http://www.pewinternet.org/2015/04/01/

us-smartphone-use-in-2015.

      Yet the ability of public employees to use cell phones to conduct public

business by creating and exchanging public records-text messages, e-mails, or

anything else-is why the PRA must offer the public a way to obtain those records.

Without one, the PRA cannot fulfill the people's mandate to have "full access to

information concerning the conduct of government on every level." LAws OF 1973,

ch. 1, § 1( 11 ). As noted earlier, many counties, cities, and agencies around the state

recognize the need to capture and retain public records created on personal devices.

Some of those entities provide employees with a way to preserve public records and

avoid any inquiry into their private affairs by, for example, syncing work-related
                                                I


documents, e-mails, and text messages to an agency server or other place accessible

to the employer. The County apparently has no such policy.

      While a policy easing the burden on employees of preserving public records

is certainly helpful, it cannot be a precondition to the public's right to access those

records. If it were, the effectiveness of the PRA would hinge on "the whim of the



                                           20
Nissen v. Pierce County, No. 90875-3

public officials whose activities it is designed to regulate." Mead Sch. Dist. No.

354 v. Mead Educ. Ass 'n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975). The legislature

tasks us with interpreting the PRA liberally and in light of the people's insistence

that they have information about the workings of the government they created. RCW

42.56.030.   Of course, the public's statutory right to public records does not

extinguish an individual's constitutional rights in private information. But we do

not read the PRA as a zero-sum choice between personal liberty and government

accountability. Instead, we turn to well-settled principles of public disclosure law

and hold that an employee's good-faith search for public records on his or her

personal device can satisfy an agency's obligations under the PRA.

      Though technology evolves, segregating public records from nonpublic ones

is nothing new for agencies responding to a PRA request. Whether stored in a file

cabinet or a cell phone, the PRA has never authorized "unbridled searches" of every

piece of information held by an agency or its employees to find records the citizen

believes are responsive to a request. Hangartner v. City of Seattle, 151 Wn.2d 439,

448, 90 P.3d 26 (2004). The onus is instead on the agency-necessarily through its

employees-to perform "an adequate search" for the records requested. Neigh. All.,

172 Wn.2d at 720-21. To satisfy the agency's burden to show it conducted an

adequate search for records, we permit employees in good faith to submit

"reasonably detailed, nonconclusory affidavits" attesting to the nature and extent of



                                         21
Nissen v. Pierce County, No. 90875-3

their search. Id. at 721. The PRA allows a trial court to resolve disputes about the

nature of a record "based solely on affidavits," RCW 42.56.550(3), without an in

camera review, without searching for records itself, and without infringing on an

individual's constitutional privacy interest in private information he or she keeps at

work.

        Federal courts implementing the Freedom of Information Act (FOIA), Pub. L.

No. 89-487, 80 Stat. 250, allow individual employees to use the same method to self-

segregate private and public records. See, e.g., Media Research Ctr. v. US. Dep 't

of Justice, 818 F. Supp. 2d 131, 139-40 (D.D.C. 2011) (declarations sufficient to

determine e-mails were not sent in employee's official capacity); Consumer Fed'n

ofAm. v. Dep 't of Agric., 455 F.3d 283, 288-89 (D.C. Cir. 2006) (affidavits from

employees about character of electronic calendars); Bloomberg, LP v. US. Sec. &

Exch. Comm 'n, 357 F. Supp. 2d 156, 163 (D.D.C. 2004) (affidavits about "telephone

logs" and message slips); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11-12

(D.D.C. 1995); Gallant v. Nat'l Labor Relations Bd., 26 F.3d 168, 171 (D.C. Cir.

1994). While "[a]n agency cannot require an employee to produce and submit for

review a purely personal document when responding to a FOIA request[,] ... it does

control the employee to the extent that the employee works for the agency on agency

matters." Ethyl Corp. v. US. Envt'l Prot. Agency, 25 F.3d 1241, 1247 (4th Cir.

1994). Thus, where a federal employee asserts a potentially responsive record is



                                          22
Nissen v. Pierce County, No. 90875-3

personal, he or she must provide the employer and "the courts with the opportunity

to evaluate the facts and reach their own conclusions" about whether the record is

subject to FOIA. Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 480-81 (2d Cir.

1999). We already incorporate FO IA' s standard for adequate searches into the PRA,

Neigh. All., 172 Wn.2d at 720, and we similarly adopt FOIA's affidavit procedure

for an employee's personally held public records.

      Therefore, we hold agency employees are responsible for searching their files,

devices, and accounts for records responsive to a relevant PRA request. Employees

must produce any public records (e-mails, text messages, and any other type of data)

to the employer agency. The agency then proceeds just as it would when responding

to a request for public records in the agency's possession by reviewing each record,

determining if some or all of the record is exempted from production, and disclosing

the record to the requester. See generally Resident Action Council v. Seattle Hous.

Auth., 177 Wn.2d 417, 436-37, 327 P.3d 600 (2013).

       Where an employee withholds personal records 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. So long as the affidavits give the requester and the trial

court a sufficient factual basis to determine that withheld material is indeed

nonresponsive, the agency has performed an adequate search under the PRA. When

done in good faith, this procedure allows an agency to fulfill its responsibility to



                                          23
Nissen v. Pierce County, No. 90875-3

search for and disclose public records without unnecessarily treading on the

constitutional rights of its employees.

      We recognize this procedure might be criticized as too easily abused or too

deferential to employees' judgment. Certainly the same can be said of any search

for public records, not just for records related to employee cell phone use. But we

offer two specific responses. First, an employee's judgment would often be required

to help identify public records on a cell phone, even in an in camera review. Text

messages, for example, are short communications whose meaning may not be self-

apparent.   Unlike a chain of e-mails where the preceding messages are often

replicated in the body of each new reply, text messages may contain only a few

words. The employee then might be needed to put that message into context to

determine if it meets the statutory definition of a "public record."

       Second, those criticisms spotlight why agencies should develop ways to

capture public records related to employee cell phone use. The people enacted the

PRA "mindful ofthe right of individuals to privacy," LAWS OF 1973, ch. 1, § 1(11),

and individuals do not sacrifice all constitutional protection by accepting public

employment. City of Ontario v. Quon, 560 U.S. 746, 756, 130 S. Ct. 2619, 177 L.

Ed. 2d 216 (20 10). Agencies are in the best position to implement policies that fulfill

their obligations under the PRA yet also preserve the privacy rights of their

employees. E-mails can be routed through agency servers, documents can be cached



                                          24
Nissen v. Pierce County, No. 90875-3

to agency-controlled cloud services, and instant messagmg apps can store

conversations. Agencies could provide employees with an agency-issued device that

the agency retains a right to access, or they could prohibit the use of personal devices

altogether. That these may be more effective ways to address employee cell phone

use, however, does not diminish the PRA's directive that we liberally construe it

here to promote access to all public records. RCW 42.56.010(3).

                                   CONCLUSION

      We affirm the Court of Appeals in part. Records that an agency employee

prepares, owns, uses, or retains on a private cell phone within the scope of

employment can be "public records" of the agency under RCW 42.56.010(3).

Nissen's complaint thus sufficiently alleges that at least some of the text messages

at issue may be public records subject to disclosure. Because it is impossible at this

stage to determine if any messages are in fact public records, on remand the parties

are directed as follows. Lindquist must obtain a transcript of the content of all the

text messages at issue, review them, and produce to the County any that are public

records consistent with our opinion. The County must then review those messages-

just as it would any other public record-and apply any applicable exemptions,

redact information if necessary, and produce the records and any exemption log to

Nissen. As to text messages that Lindquist in good faith determines are not public




                                           25
Nissen v. Pierce County, No. 90875-3

records, he must submit an affidavit to the County attesting to the personal character

of those messages. The County must also produce that affidavit to Nissen.

      We note that the County responded to Nissen's records requests and produced

records in a timely manner based on what we presume was its good-faith

interpretation of the PRA. Though we now hold that interpretation is incorrect,

penalties are not warranted at this early stage before the County has had the

opportunity to comply with our opinion and supplement its response to Nissen's

requests accordingly. We reserve for the trial court the issue of penalties going

forward.




                                          26
Nissen v. Pierce County, No. 90875-3




WE CONCUR:




                                            U~-/)2
                                            Yf;~,~




                                       27
