                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      November 8, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    ARTHUR WEST,                                                   No. 48601-6-II

                               Respondent,

          v.

    STEVE VERMILLION, CITY OF                                 PUBLISHED OPINION
    PUYALLUP,

                               Appellants.


         LEE, J. — Arthur West submitted a public records request under the Public Records Act1

(PRA) to the city of Puyallup (City) for the “communications received or posted” through a

personal website and associated e-mail account run by city council member Steve Vermillion.

Clerk’s Papers (CP) at 41. Vermillion refused to provide records that were in his home, on his

personal computer, or in the e-mail account associated with his website, citing privacy provisions

of the Washington and United States Constitutions. The City supported Vermillion’s position.

West sued. The superior court granted West’s motion for summary judgment requiring Vermillion

to search for and produce the requested records. Vermillion and the City appeal, arguing that the

superior court erred because article I, section 7 of the Washington Constitution and the First and

Fourth Amendments to the United States Constitution protect the requested documents.


1
    Ch. 42.56 RCW.
No. 48601-6-II


       We hold that it was proper for the superior court to require Vermillion to produce to the

City e-mails in his personal e-mail account that met the definition of a public record under RCW

42.56.010(3) and to submit an affidavit in good faith attesting to the adequacy of his search for the

requested records. We further hold that the First and Fourth Amendments to the United States

Constitution and article I, section 7 of the Washington Constitution do not afford an individual

privacy interest in public records contained in Vermillion’s personal e-mail account. Therefore,

we affirm, but we remand for the superior court to amend its order in light of Nissen v. Pierce

County, 183 Wn.2d 863, 357 P.3d 45 (2015).

                                              FACTS

       In 2009, Vermillion created a website and an e-mail account associated with the website to

aid in his state congressional campaign. Vermillion continued to use the website and e-mail after

the campaign ended for various civic groups with which he was involved.

       In 2011, Vermillion began using the website and e-mail to campaign for a position on the

Puyallup City Council. Vermillion was elected to the Puyallup City Council effective January 1,

2012. After being elected, Vermillion occasionally received e-mails from constituents, as well as

people from the City, through his website and personal e-mail account. Vermillion also used his

website and e-mail to coordinate with other city council candidates.

       When Vermillion received an e-mail that required an official response or action, he would

forward the e-mail to the appropriate person at the City and then delete it from his e-mail.

Vermillion said he used his City e-mail account when conducting City business, and he considered

his website and the associated e-mail account to be “personal papers.” CP at 70.




                                                 2
No. 48601-6-II


       West submitted a public records request to the City for the communications received or

posted through city council member Steve Vermillion’s website that “concern[ed] the City of

Puyallup, City business, or any matters related to City governance the City Council and mayor, or

his membership on the City Council.” CP at 40. Vermillion refused to provide records that were

at his home, on his personal computer, or in his non-City e-mail account. The City informed West

that the records he sought were not within the City’s possession or control. West filed a public

records request action against the City and Vermillion.

       West, the City, and Vermillion filed cross-motions for summary judgment. The superior

court denied the City’s motion, but granted West’s motion in part, ruling that (1) the Fourth

Amendment’s protections against search and seizure were not implicated because Vermillion had

no reasonable expectation of privacy in communications “related to the public’s business”; (2) the

privacy protections under article I, section 7 did not apply because West was not seeking private

information; (3) the First Amendment was not implicated because West was not asking for political

activity records; (4) Vermillion was not subject to the City’s policy prohibiting City employees

and volunteers from performing city business on personal or third-party “technology resource[s],”

which include electronic or digital communications and commingling of City and non-City data

files; and (5) the public has a right to inspect public records located on a personal computer unless

the records are “highly offensive to a reasonable person and are not of legitimate public concern.”

CP at 183-85. The superior court then ordered Vermillion “under penalty of perjury [to] produce

records that are within the scope of [p]laintiff’s records request.” CP at 185. The superior court

also granted a CR 54(b) certification.




                                                 3
No. 48601-6-II


       Vermillion and the City appealed directly to the Washington Supreme Court. The Supreme

Court transferred the appeal to this court for review.

                                            ANALYSIS

       Our Supreme Court’s decision in Nissen, 183 Wn.2d 863, controls. Accordingly, we

conclude that the arguments raised by Vermillion and the City fail, but we remand for the superior

court to amend its order to conform to the language and procedure set forth in Nissen.

A.     STANDARD OF REVIEW

       We review PRA requests and summary judgment orders de novo. RCW 42.56.550(3);

Nissen, 183 Wn.2d at 872; West v. Thurston County, 169 Wn. App. 862, 865, 282 P.3d 1150

(2012). We also review “the application of a claimed statutory exemption without regard to any

exercise of discretion by the agency.” Newman v. King County, 133 Wn.2d 565, 571, 947 P.2d

712 (1997).

       The PRA “‘is a strongly worded mandate for broad disclosure of public records.’”

Progressive Animal Welfare Soc. v. Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994)

(plurality opinion) (quoting Hearst Corp. v . Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1994)).

We are required to construe the PRA’s disclosure provisions liberally and its exemptions narrowly.

Progressive Animal Welfare, 125 Wn.2d at 251 (plurality opinion).

       “The burden of proof shall be on the agency to establish that refusal to permit public

inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole

or in part of specific information or records.” RCW 42.56.550(1). Unless the requested record

falls within a specific exemption of the PRA, or other statute that exempts or prohibits disclosure




                                                 4
No. 48601-6-II


of specific information or records, the agency must produce the record. Soter v. Cowles Publ’g

Co., 162 Wn.2d 716, 730, 174 P.3d 60 (2007); RCW 42.56.070(1).

B.     NISSEN V. PIERCE COUNTY

       Subsequent to West’s request, the superior court’s decision, and the parties’ submission of

appellate briefs, our Supreme Court decided Nissen, 183 Wn.2d 863. The parties then filed

supplemental briefing addressing Nissen. The Nissen opinion is dispositive of the issues raised on

appeal in this case.

       In Nissen, the court considered whether an elected county prosecutor’s text messages on

work-related matters sent and received from a private cell phone may be public records. 183

Wn.2d at 873. The records request asked for production of “any and all of [elected county

prosecutor’s] cellular telephone records for [private telephone number] or any other cellular

telephone he uses to conduct his business including text messages from August 2, 2011,” and for

“[elected county prosecutor’s] cellular telephone records for [private telephone number] for June

7, 2010.” Nissen, 183 Wn.2d at 869-70 (footnotes omitted). Nissen first considered whether

records of government business conducted on a private phone were “public record[s]” as defined

in the PRA; then whether the specific records requested were “public record[s]”; and finally, how

“public records” in the exclusive control of public employees could be sought and obtained. 183

Wn.2d at 873.

       First, Nissen held 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




                                                5
No. 48601-6-II


other requirements of RCW 42.56.010(3).”2 183 Wn.2d at 877. In reaching this conclusion, the

court noted that a public record is “‘prepared, owned, used, or retained by [a] state or local

agency’” but that state and local agencies “lack an innate ability to prepare, own, use, or retain any

record” independently, and “instead act exclusively through their employees and other agents.”

Nissen, 183 Wn.2d at 876 (alteration in original) (quoting RCW 42.56.010(3)). Thus, when the



2
    RCW 42.56.010 states:

         The definitions in this section apply throughout this chapter unless the context
         clearly requires otherwise.
                  (1) “Agency” includes 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
         district, or any office, department, division, bureau, board, commission, or agency
         thereof, or other local public agency.
                  (2) “Person in interest” means the person who is the subject of a record or
         any representative designated by that person, except that if that person is under a
         legal disability, “person in interest” means and includes the parent or duly
         appointed legal representative.
                  (3) “Public record” includes 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. For the office of the secretary of the senate and
         the office of the chief clerk of the house of representatives, public records means
         legislative records as defined in RCW 40.14.100 and also means the following: All
         budget and financial records; personnel leave, travel, and payroll records; records
         of legislative sessions; reports submitted to the legislature; and any other record
         designated a public record by any official action of the senate or the house of
         representatives.
                  (4) “Writing” means handwriting, 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 from which information may be obtained or
         translated.


                                                   6
No. 48601-6-II


employee or other agent “acts within the scope of his or her employment, the employee’s actions

are tantamount to ‘the actions of the [body] itself.’” Nissen, 183 Wn.2d at 876 (alteration in

original) (quoting Houser v. City of Redmond, 91 Wn.2d 36, 40, 586 P.2d 482 (1978)). “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.” Nissen, 183 Wn.2d at 878 (quoting

Greene v. St. Paul-Mercury Indem. Co., 51 Wn.2d 569, 573, 320 P.2d 11 (1958)).

       Second, the Nissen court considered whether the specific records requested were public

records. The court noted that the text messages were a writing, and considered whether the

requested records “‘relat[e] to the conduct of government or the performance of any governmental

or proprietary function’” and were “‘prepared, owned, used, or retained’ by an agency.” Nissen,

183 Wn.2d at 880-81 (alteration in original) (quoting RCW 42.56.010(3)). The court held that the

content of the text messages requested were potentially public records subject to disclosure

because the requester sufficiently alleged that the elected prosecutor put “‘work related’” outgoing

text messages “‘into written form’” and “‘used’” incoming text messages “while within the scope

of employment,” thereby satisfying the three elements of a public record in RCW 42.56.010(3).

Nissen, 183 Wn.2d at 882-83.

       Third, the court considered “the mechanics of searching for and obtaining public records

stored by or in the control of an employee.” Nissen, 183 Wn.2d at 883. The court rejected the

county’s and prosecutor’s arguments that various constitutional provisions, including the Fourth

Amendment and article I, section 7, protected the records on a private phone from disclosure.

Nissen, 183 Wn.2d at 883. The court reasoned that “an individual has no constitutional privacy

interest in a public record.” Nissen, 183 Wn.2d at 883. Instead, the court held that the agency



                                                 7
No. 48601-6-II


employees and agents are required to search their own “files, devices, and accounts for records

responsive to a relevant PRA request,” and must then “produce any public records (e-mails, text

messages, and any other type of data)” to the agency for the agency to then review for disclosure.

Nissen, 183 Wn.2d at 886.        The employee or agent may submit “‘reasonably detailed,

nonconclusory affidavits’ attesting to the nature and extent of their search,” to show the agency

conducted an adequate search. Nissen, 183 Wn.2d at 885 (quoting Neighborhood All. of Spokane

County v. Spokane County, 172 Wn.2d 702, 721, 261 P.3d 119 (2011)). But the court held:

       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.

Nissen, 183 Wn.2d at 886.

C.     PUBLIC RECORDS ON PERSONAL ACCOUNTS

       1.      Personal E-mail Accounts are Subject to the PRA

       Appellants argue that the superior court erred in ordering Vermillion “to produce e[-]mails

from his personal e[-]mail account and swear under [penalty of] perjury that he had complied.”

Br. of Appellant (Vermillion) at 3. Specifically, Vermillion argues that the PRA does not

“authorize an agency to require an elected official to search a personal e[-]mail account.” Br. of

Appellant (Vermillion) at 4. We reject Vermillion’s argument.

       Nissen squarely addressed this argument and held that an agency’s employees or agents

must search their own “files, devices, and accounts,” and produce any public records, including

“e-mails,” to the employer agency that are responsive to the PRA request. 183 Wn.2d at 886. The

Nissen court also held that affidavits by the agency employees, submitted in good faith, are



                                                8
No. 48601-6-II


sufficient to satisfy the agency’s burden to show it conducted an adequate search for records. 183

Wn.2d at 885. Thus, we hold that it was proper for the superior court to require Vermillion to

produce3 to the City e-mails in his personal e-mail account that meet the definition of a public

record under RCW 42.56.010(3) and to submit an affidavit in good faith attesting to the adequacy

of his search for the requested records.

       2.      No Individual Constitutional Privacy Interests in Public Records

       Appellants argue that the superior court “erred in ruling that a search would not violate

Vermillion’s privacy rights,” and that the PRA does not provide sufficient guidance to distinguish

between what e-mails should be produced to the city and what should be protected by Vermillion’s

constitutional privacy rights. Br. of Appellant (Vermillion) at 3. In support, Vermillion relies on

article I, section 7 and the Fourth Amendment to argue that the entirety of his personal e-mail

account is protected from a compelled search. Vermillion also relies on the First Amendment to

argue that the content of his e-mails is protected by his right to associate privately. We disagree.

               a. Fourth Amendment and Article I, Section 7

       In Nissen, the court held that “an individual has no constitutional privacy interest in a public

record.” 183 Wn.2d at 883. Like the appellants, the elected prosecutor and Pierce County in

Nissen “primarily cite[d] to the Fourth Amendment to the United States Constitution and article I,




3
  We are mindful of the distinction between the terms “produce” and “disclose,” along with the
variations of each word, as discussed in White v. City of Lakewood, 194 Wn. App. 778, 374 P.3d
286 (2016). Here, “produce” is used because “produce” is the term that the Supreme Court uses
in Nissen and the term “produce” only contemplates production to the city, which then reviews the
entire set of responsive records before deciding what will be disclosed to the requester. 183 Wn.2d
at 873 (ordering the prosecutor “to obtain, segregate, and produce those public records to the
County”).


                                                  9
No. 48601-6-II


section 7 of the Washington Constitution” in asserting constitutional rights to privacy in the place

potentially containing public records. 183 Wn.2d at 883 n.9. Vermillion’s argument differs only

in that the place potentially containing public records is his personal e-mail account rather than a

personal cell phone.     Vermillion does not argue that this factual distinction changes the

constitutional analysis, and we hold that it does not. Because our Supreme Court considered and

rejected the argument that the Fourth Amendment and article I, section 7 afford an individual

privacy interest in public records held on a personal cell phone, we also reject the argument that

the Fourth Amendment and article I, section 7 afford an individual privacy interest in public

records contained in a personal e-mail account.

               b. First Amendment Right To Associate

       Vermillion and the City submitted supplemental briefs addressing what they believed the

effect Nissen has on the case here. Appellants argue that the Nissen court did not address the

“privacy of associational communications” afforded by the First Amendment. Suppl. Br. of

Appellants at 9. We hold that (1) the language of the Nissen holding is not limited to the

constitutional principles explicitly expressed by the Nissen court, (2) the Nissen opinion shows the

court was mindful of the First Amendment’s associational privacy rights, and (3) even if individual

constitutional protections could prevent disclosure of public records, the absence of specificity as

to the particular records claimed to be protected here would render any opinion as to those records

similarly vague and wholly advisory.

       As stated above, “an individual has no constitutional privacy interest in a public record.”

Nissen, 183 Wn.2d at 883. The language of this holding does not limit it to only certain

constitutional privacy interests nor to only those privacy interests enumerated under certain



                                                  10
No. 48601-6-II


constitutional provisions.    Instead, Nissen was clear that an individual does not have a

constitutional privacy interest in public records. Nissen’s holding was mindful of the associational

privacy rights the First Amendment affords elected officials, as evidenced by the court’s citation

to Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 426, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977)

(considering First Amendment associational privacy rights of President Nixon as they related to

the Presidential Recordings and Materials Preservation Act of 1974 (Act)4) immediately following

its holding. 183 Wn.2d at 883 n.10. We, therefore, reject appellants’ argument that the First

Amendment’s right to association protects public records in Vermillion’s personal e-mail account

from disclosure because associational privacy rights under the First Amendment are constitutional

privacy rights, and “an individual has no constitutional privacy interest in a public record.” Nissen,

183 Wn.2d at 883.

       Nissen also concluded that “it [wa]s impossible at th[at] stage to determine if any of the

messages are in fact public records,” and directed the elected prosecutor to “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 [the Nissen] opinion.” 183 Wn.2d at 888. This would then allow

the County to conduct its review just as it would any other public records request. Nissen, 183

Wn.2d at 888.

       Similarly here, the record before us does not contain information upon which we can

determine whether e-mails contained in Vermillion’s personal e-mail account could be subject to

First Amendment protections, let alone if they are public records. The closest thing to the actual



4
 Specifically, Title I of Pub. L. No. 93-526, 88 Stat. 1695, note following 44 U.S.C. § 2107
(Supp. V 1970).


                                                 11
No. 48601-6-II


e-mails in dispute that is in our record is a “fictitious e[-]mail . . . based on an actual e[-]mail at

issue in a case that involves this exact issue currently being litigated in Skamania Superior Court.”

Reply Br. of Appellant (Vermillion) at 19 n.40; see also Suppl. Br. of Appellants at 17 n.35

(reproducing the same “fictitious e-mail”). A fictitious e-mail that is similar in an unexplained

way to an e-mail in an unrelated case cannot be the basis for us to issue an opinion as to the

character of a real e-mail in this case. Were we to issue such an opinion, it would be, at best,

advisory. See Walker v. Munro, 124 Wn.2d 402, 418, 879 P.2d 920, (1994) (“We choose instead

to adhere to the longstanding rule that this court is not authorized under the declaratory judgments

act to render advisory opinions or pronouncements upon abstract or speculative questions.”).

Therefore, we hold that even if individual constitutional protections under the First Amendment

could allow Vermillion to not disclose public records in his personal e-mail account, it is

impossible for us to determine if any of the e-mails are subject to First Amendment protections or

are even public records.

       3.      Amicus Briefing

       The Washington Coalition for Open Government (WCOG) filed an amicus curiae brief.

Appellants responded jointly to the Amicus brief.

               a. Elected Officials—Legislative vs. Executive

       WCOG argues that the PRA applies to elected officials. As explained above, the Nissen

court held that the PRA applied to elected officials when it ruled that Pierce County’s elected

prosecutor was subject to the PRA. 183 Wn.2d at 879.

       In reply, appellants argue, for the first time, that the result must be different as applied to

them because Vermillion was an elected legislative official, rather than an elected executive



                                                  12
No. 48601-6-II


official. Appellants contend that this distinction is important because “unlike an elected executive

official such as a county prosecutor, an elected legislative official has no legal authority to act on

behalf of the city through e[-]mail, or to take any unilateral action on behalf of the City at all.”

Joint Response to Amicus Br. at 2. We disagree.

        A record subject to disclosure under the PRA is not contingent on its possessor’s ability to

take unilateral action on behalf of the agency. Instead, a record is subject to disclosure under the

PRA if it is “a record that an agency employee prepares, owns, uses, or retains in the scope of

employment.” Nissen, 183 Wn.2d 876. And the record is “‘within the scope of employment’ only

when the job requires it, the employer directs it, or it furthers the employer’s interests.” Nissen,

183 Wn.2d at 878 (quoting Greene, at 573). Thus, whether a record is subject to disclosure hinges

on if the record was prepared, owned, used, or retained “within the scope of employment,” not if

the record was prepared, owned, used, or retained within the scope of employment by the executive

branch of the government. Nissen, 183 Wn.2d at 879. Appellants’ attempt to distinguish Nissen

on the basis that Vermillion was an elected legislative official rather than an elected executive

official fails.

                  b. First Amendment

        WCOG argues that the First Amendment does not bar the e-mails that are public records

from disclosure. WCOG relies on the holding in Nissen that “an individual has no constitutional

privacy interest in a public record.” 183 Wn.2d at 883.

        Instead of addressing Nissen, appellants rely entirely on Nixon to support the proposition

that “Vermillion’s correspondence with constituents qualifies as political association, which would

be ‘seriously infringed’ if subjected to disclosure under the PRA.” Joint Response to Amicus Br.



                                                 13
No. 48601-6-II


at 4 (citing Nixon, 433 U.S. at 467). Appellants seize on the Nixon Court’s recognition “that

involvement in partisan politics is closely protected by the First Amendment.” 433 U.S. at 467.

The Nixon Court was considering whether a subpart of the Act that provided the “scheme for

custody and archival screening of the materials” disclosed under the Act “‘necessarily inhibits

[the] freedom of political activity [of future Presidents] and thereby reduces the quantity and

diversity of the political speech and association that the Nation will be receiving from its leaders.’”

433 U.S. at 468 (alterations in original) (quoting “Brief of Appellant 168”). The Nixon Court held

that the Act did not inhibit the freedom of political activity and did not reduce the quantity and

diversity of political speech and association. 433 U.S. at 468.

       Appellants’ reliance on Nixon rather than Nissen is not persuasive. Appellants do not argue

that Nixon and Nissen are in conflict with one another. Nor do appellants analyze the significant

factual dissimilarities between Nixon and the case at bar. Nissen interpreted the same statute at

issue here, under similar facts, and citing to Nixon, held that under Washington’s PRA, “an

individual has no constitutional privacy interest in a public record.” 183 Wn.2d at 883. We follow

Nissen and hold Vermillion has no constitutional privacy interest in public records that are

contained in his personal e-mail account.

                                          CONCLUSION

       Under Nissen, appellants’ arguments fail. However, because the superior court issued its

order before our Supreme Court decided Nissen, we remand this case for the superior court to

amend its order to conform to the language and procedure set forth in Nissen. This will include

requiring Vermillion to conduct “‘an adequate search’” of the undisclosed e-mails. Nissen, 183

Wn.2d at 885 (quoting Neigh. All., 172 Wn.2d at 721). In doing so Vermillion must “in good faith



                                                  14
No. 48601-6-II


. . . submit ‘reasonably detailed, nonconclusory affidavits’ attesting to the nature and extent of

[his] search.” Nissen, 183 Wn.2d at 885 (quoting Neigh. All., 172 Wn.2d at 721). Those affidavits

must be submitted “with facts sufficient to show the information [he decides not to disclose] is not

a ‘public record’ under the PRA.” Nissen, 183 Wn.2d at 886.5

         We affirm, but we remand for the superior court to amend its order in light of Nissen v.

Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015).



                                                                            Lee, J.
    We concur:



                   Johanson, P.J.




                     Sutton, J.




5
  Nissen recognized that this “adequate” and “good faith” procedure was subject to abuse. 183
Wn.2d at 886. The court made two points regarding this potential for abuse that are applicable
here. First, the superior court has the authority 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.” Nissen, 183 Wn.2d at 885. And, second, where an
“employee asserts a potential responsive record is 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” disclosure. Nissen, 183 Wn.2d at 886 (quoting Grand Cent.
P’ship, Inc. v. Cuomo, 166 F.3d 473, 480-81 (2d Cir. 1999) (adopting procedure used by federal
courts for the Freedom of Information Act)). Thus, the possibility for in camera review is not
foreclosed, but is not immediately required.


                                                  15
