# FI~E\**1~1** CLERICS O,PICI ., aJPR6ME COURT, ITlVI0/1 .. -.al : DATE 

## &IIG 

# z'**201~**

# ?~·g~

IN THE SUPREME COURT OFTHE STATE OFWASHINGTON GLENDA NISSEN, an individual ) ) Respondent, ) ) ) ) 

### v. ) ) ) ) PIERCE COUNTY, a public agency, ) PIERCE COUNTY PROSECUTING ) ATTORNEY'S OFFICE, a public ) agency, and PROSECUTORMARK ) LINDQUIST, ) ) Petitioners. )



### _____ 

## ) No.**90875~3**

En Bane

Filed 

## AUG 2 7 

## 2015

Yu, J.-Five years ago we concluded that the Public Records Act (PRA), chapter 42.56 RCW, applied to a record stored on apersonal 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 weNissen v. Pierce County, No. 90875-3 consider ifthe 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 apublic employee in the employee's official capacity are public records ofthe employer, even ifthe 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 MarkLindquist. One request stated: Please produce any and all of Mark Lindquist's cellular telephone records for number 253-861-[XXXX1] or any other cellular telephone he uses to conduct his business including text messages from August2, 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 Lindquistpersonally bought the phone, pays for its monthly service, and sometimes

uses it in the course ofhisjob.

1Thoughredacted in the record before us, the requests containedthe full 10-digittelephone number. 2 The County has not challenged the breadth or specificity ofthese requests, and we pass no opinion. 2Nissen v. Pierce County, No. 90875-3 In response to these requests, Lindquist obtained and provided the County with two types ofrecords. The first, which the parties refer to as the "call log," is similarto an itemized statement customers mightreceive from their serviceprovider each month. It contains information about the dates and times of calls made and received, the length ofthose calls, and the telephone number ofthe incoming or outgoing call. Lindquist's serviceprovider, VerizonWireless, generatedthe call log andprovided itto Lindquist at his request. He voluntarilyproduced itto the County. The second type ofrecord reveals information about text messages Lindquist sent and received over two days ("text message log"). The text message log does not reveal the content ofthose 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 thatthe County and Lindquist admit mightbe workrelated. See CP at 490 (Decl. ofMark Lindquist in Supp. ofMot. To Intervene & Join) ("I authorized the release ofrecords of calls that were related to the conduct of government or the

3Nissen 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 halfof the text messages Lindquist sent or received and many ofhis phone calls during the relevant period potentially related to hisjob as the elected prosecutor. The County did not produce the contents ofany text message, however, though copies ofthem exist on Verizon's servers.3 Dissatisfied with the County's disclosures, Nissen sued the County in Thurston County Superior Court. She sought an in camera review ofLindquist's textmessages andthe call andtextmessage logs to determine ifall ofthe information is apublic record. Lindquistintervened and moved for a temporaryrestraining order and preliminary injunction to enjoin further disclosure ofrecords 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. Thatsame daythe Countymovedto dismiss Nissen's complaintunder

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 ofthat request is not before us. 4Nissen 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, becausetheyrelatedto apersonal cell phone ratherthan a county-issued one. The trial court consolidated the two motions for a hearing. After argument, the trialjudge granted the County's CR 12(b)(6) motion, determining as a matter of lawthatrecords ofprivate cellphoneuse can neverbepublicrecords underthePRA. The Court ofAppeals 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 ofwhether the call logs also qualify as "publicrecord[s]," noting thatthe 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 ifwe conclude that "the plaintiffcannot prove 'any set offacts which wouldjustifyrecovery."' 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 "onlyinthe unusual case in whichplaintiff includes allegations that show on the face of the complaint that there is some insuperablebarto relief." 

### Hoffer v. State, 110Wn.2d415,420,755 P.2d781 (1988) (quoting 5 CHARLES ALAN WRIGHT & 

### ARTHUR R. MILLER, FEDERAL PRACTICE§ 357, at 604 (1969)). Our standard ofreview 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 everypiece ofdata on a smartphone. And it does not involve a citizen suing apublic employee for access to the employee's phone. Instead, this is

an action against an agency for two types ofrecords that, while potentially related to the agency's public business, are in the exclusive control of the agency's employee. This case asks whetherthoserecords cannonethelessbe "publicrecords" the agency must disclose and, ifso, 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 herethe call and text message logs and textmessages. Finally, we address the mechanics of searching for and obtaining public records held by or in the control ofpublic employees. As explained below, we hold that text messages sent or received by Lindquist in his official capacity can be public records ofthe County, regardless of thepublic orprivatenature ofthe deviceusedto createthem; andwe orderLindquist to obtain, segregate, andproduce those public records to the County. I. THE PRAREACHES EMPLOYEE-OWNED CELLPHONES WHENUSED FORAGENCY BUSINESS Our analysis begins with the text ofthe PRA. Byits 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. SenateRepublican Campaign Comm. v. Pub. Disclosure Comm 'n, 

### 133 Wn.2d 229, 239, 943 P.2d 1358 (1997). ThePRA defines "agency" verybroadly 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, oranyoffice, department, division, bureau, board, commission, or agencythereof, or otherlocal 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 ofthat 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 ofphysical form or characteristics. RCW42.56.010(3) (emphasis added). The definitions of"agency" and "publicrecord" are each comprehensive

ontheir own and, whentakentogether, meanthePRA subjects "virtuallyanyrecord related to the conduct ofgovernment" 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 ofstate and local government. 

### See 

### LAws OF 

### 1973, ch. 1, § 1(11). As we so often summarize, the PRA "is a strongly worded mandate forbroad disclosure ofpublicrecords." 

### Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775,791,246P.3d768 (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 willultimatelybeproduced. Agenciesmust considerwhether any applicable exemptionprecludes production ofpart or all ofarecord. 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 ofEmployment Create Public Records Despitethat mandate,the County argues public employees can avoidthe PRA simplybyusing aprivate cellphone, eveniftheyuse it for public business and even ifthe same informationwouldbeapublicrecordhad theyused a government-issued phone instead. 5 

### The Countyfinds this large gap inthePRAbyisolatingthe statute's definition of"agency," which does not expressly refer to individual employees as agencies. RCW 42.56.010(1). Since county employees like Lindquist are not literally a "county," the County argues its employees and the records they control

are completelyremoved from the PRA's scope. While that reasoning may have superficial appeal, it misses the central questionhere. We cannot interpret statutoryterms oblivious to the contextinwhich they are used. Dep't of Ecology v. Campbell & Gwinn, LLC, 

### 146 Wn.2d 1, 10-11, 43 P.3d4 (2002). As this case does not askifapublic employee is an "agency" with independent obligations separate from those the PRA imposes on the employer, interpreting "agency" in isolationis 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 ofits interpretation ofthe PRA. Wash. Supreme Court oral argument, Nissen v. Pierce County, No. 90875-3 (June 11, 2015), at 3min., 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 PRAis anunsettled 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. SeeHearst Corp., 

### 90 Wn.2d at 128. One characteristic ofa 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 exclusivelythrough their employees and other agents, and when an employee acts within the scope ofhis 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 basiccommonlaw conceptinto thePRA, arecordthat an agencyemployeeprepares, owns, uses, orretains in the scope ofemployment is necessarily arecord "prepared, owned, used, or retained by [a] state or local agency." RCW42.56.010(3).

however, Nissen did not sue Lindquist, either in his individual or official capacity. She instead sued the County, alleging that Lindquist's use ofhis cell phone resulted in public records ofthe County; Lindquistis apartyonlybecauseheintervenedto enjoin disclosure. Therelevant 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 countypublicrecords. 

### 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. 

### SeeDawson, 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 oftheirjobs, the public would be without information about much of the daily operation of government. Such a result would be an affront to the core policyunderpinning the PRA-thepublic's right to a transparent government. That policy, itselfembodied in the statutory text, guides our interpretation ofthe PRA. RCW 42.56.030; LAWS OF 

### 1973, ch. 1, § 1(11); 

### Hearst Corp., 90 Wn.2d at 128. B. The PRA Captures WorkProduct on Employee Cell Phones With that understanding, it is clear that an agency's "public records" include the work product ofits 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." RCW42.56.010(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.

11Nissen 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 apublicrecord ifthey also meetthe otherrequirements 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 aprivate cell phone to conductpublic 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 countybusiness 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 ofpersonal 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 ofthe PRA. See WAC 44-14-03001(3). Whilethese interpretations do notbindus, 

### 0 'Neill, 170 Wn.2d at 149, theydiscredit the County's assertion thatprivate cell phoneuse has always beentreated 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 ofprincipal-agencylaw alleviatethis concern. Forinformationto beapublic record, an employee must prepare, own, use, or retain it within the scope of employment. An employee's communication is "within the scope ofemployment" only when thejob requires it, the employer directs it, or it furthers the employer's interests. Greene v. St. Paul-MercuryInde.m. Co., 51 Wn.2d 569, 573, 320 P.2d 311 (1958) (citingLunz v. Dep 't of Labor &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 theirjob on

13

### Nissen v. Pierce County, No. 90875-3 social media. Nordo theytypically act within the scope ofemploymentbycreating

orkeepingrecordspurelyforprivateuse, like adiary. Noneoftheseexampleswould 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. APPLYINGTHEPRATOTHE 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

7Weofferthese generic illustrations inresponse to hypotheticals raisedbythe Countyand some amici. Ofcourse, the facts ofevery case vary. We do not intend these illustrations to have precedential effect. 

### 14

### Nissen v. Pierce County, No. 90875-3 government ortheperformanceofgovernmentfunctions thatis (3) prepared, owned, used, or retained by a state or local agency. Confederated Tribes of the Chehalis Reservation v. Johnson, 135 Wn.2d734,746, 958 P.2d260 (1998). Thefirst 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 ofGovernment Publicrecords must "relat[e] to theconduct ofgovernment ortheperformance ofany governmental or proprietary function." RCW 42.56.010(3). This language casts awidenet. In ConfederatedTribes, for example, weheldthatrecords ofmoney paid by Indian tribes into a common fund related to the conduct ofthe government

eventhough therecords relatedprimarilyto tribal gaming operations. 135 Wn.2d at 739-43. Sincethe statereceivedmoneyfrom the commonfund, wedeterminedtribal contributions impacted state government and therefore records of those contributions werepublic 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 involvedmedical records ofpatients hospitalized at a state-owned facility. The records there unquestionably related to individualpatients and did not explicitlydiscuss government operations, butwe still held that the records "relat[ed] to the conduct of government" under RCW

15Nissen v. Pierce County, No. 90875-3 42.56.010(3). From them the public could learn about the "administration ofhealth

care services, facility availability, use and care, methods of diagnosis, analysis, treatment and costs, all ofwhich 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 ifthey containany informationthatrefers to or impactsthe actions, processes, and functions ofgovernment.8 B. Records Prepared, Owned, Used, or Retained by an Agency As explainedpreviously, apublicrecord must also be "prepared, owned, used,

or retained" by an agency, which includes an agency employee acting within the scope ofemployment. But the parties still quarrel over the meaning ofthese verbs, whichrequires that we further interpret RCW42.56.010(3). Statutory interpretation starts with the plain meaning ofthe 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 ifthey refer to, comment on, or mention the employee's public duties. 16Nissen v. Pierce County, No. 90875-3 "Prepared." "Prepare" is defined as "to puttogether"; 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" arecord as creating it. SeeDawson, 120 Wn.2d at 787 (agencyprepared record by "creat[ing] one ofthe files"); Oliver, 94 Wn.2d at 566 (records ofpatient's hospitalization prepared bythe hospital). "Owned." To "own" a record means "to have or hold [it] as property." WEBSTER's, supra, at 1612;seealso 0 'Neillv. City of Shoreline, 145 Wn. App. 913, 925, 187 P.3d 822 (2008). "Used." We previously addressed what it means for an agency to "use" a record. Webroadly interpretedtheterm in ConcernedRatepayersAss '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, withoutmore, is not apublic record. Butifan agency "evaluat[es], review[s],

or refer[s]" to a record in the course ofits business, the agency "uses" the record within the meaning ofthe 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.

17Nissen 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 ifthe 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 necessaryto "use" them. ConcernedRatepayers, 138 Wn.2d at 962. Though they evidence the acts ofapublic 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" ofthe County within the meaning ofRCW 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 ofa "public record" under RCW42.56.010(3). Transcripts ofthe content ofthose 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 

### Wefinallyturnto themechanics ofsearching for and obtainingpublicrecords stored by orin the control ofan 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 ofAmericans can

9Theyprimarilyciteto the FourthAmendmentto theUnitedStates Constitutionand article I, section 7 ofthe Washington Constitution. 10 SeeNixon 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 unrelatedto any acts done by them in theirpublic capacity" (emphasis added)). 

### 19Nissen 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, PEWRESEARCH 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 wayto obtain those records. Without one, the PRA cannot fulfill the people's mandate to have "full access to information concerning the conduct ofgovernment 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 ofthose entities provide employees with a wayto preserve public records and avoid any inquiry into their private affairs by, for example, syncing work-related

I documents, e-mails, andtext messages to an agency server or otherplace accessible to the employer. The County apparentlyhas no such policy. While a policy easing the burden on employees ofpreserving public records is certainly helpful, it cannot be a precondition to the public's right to access those records. Ifit were, the effectiveness ofthe PRA would hinge on "the whim ofthe

20Nissen v. Pierce County, No. 90875-3 public officials whose activities it is designed to regulate." Mead Sch. Dist. No. 354 v. MeadEduc. Ass 'n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975). The legislature tasks us with interpreting the PRA liberally and in light ofthe people's insistence thattheyhave information aboutthe workings ofthe governmentthey 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 ofpublic 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 PRAhas never authorized "unbridled searches" ofevery piece ofinformation 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-necessarilythrough its employees-toperform "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

21Nissen v. Pierce County, No. 90875-3 their search. Id. at 721. The PRA allows a trial court to resolve disputes about the nature ofa 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 implementingthe Freedom ofInformationAct (FOIA), Pub. L. No. 89-487, 80 Stat. 250, allow individual employees to use the same methodto selfsegregate 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 ofelectronic calendars); Bloomberg, LP v. US. Sec. & Exch. Comm 'n, 357F. 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 apurelypersonal documentwhen responding to aFOIArequest[,]
...it does control the employee to the extentthatthe employee works for the agencyon 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

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### 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.3d473, 480-81 (2d Cir. 1999). We alreadyincorporateFOIA's standard for adequate searches into thePRA, 

### Neigh. All., 172 Wn.2d at 720, and we similarly adopt FOIA's affidavit procedure for an employee's personallyheldpublic records. Therefore, wehold agencyemployees are responsiblefor searchingtheirfiles, devices, and accounts for records responsive to a relevant PRArequest. Employees mustproduce anypublicrecords (e-mails, textmessages, and any othertype ofdata) to the employer agency. The agencythenproceedsjustas itwould whenresponding to a request for public records in the agency's possessionbyreviewing eachrecord, determining ifsome orall oftherecordis exempted from production, and disclosing the record to the requester. 

### See generallyResidentAction Council v. Seattle Hous. Auth., 177 Wn.2d 417, 436-37, 327 P.3d 600 (2013). Where an employeewithholdspersonalrecords from the employer, he or she must submitan affidavitwithfacts sufficientto showtheinformationis 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 agencyhas performed an adequate searchunderthe PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to

23Nissen v. Pierce County, No. 90875-3 search for and disclose public records without unnecessarily treading on the constitutional rights ofits employees. We recognize this procedure might be criticized as too easily abused or too deferential to employees' judgment. Certainly the same can be said ofany search for public records, notjust for records related to employee cell phone use. But we offertwo specificresponses. First, an employee'sjudgmentwould oftenbe 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 selfapparent. 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 ifitmeets the statutory definition ofa "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 oftheright ofindividuals to privacy," LAWS OF 1973, ch. 1, § 1(11), and individuals do not sacrifice all constitutional protection by accepting public employment. City ofOntario v. Quon, 560 U.S. 746, 756, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (20 1 0). Agencies are inthebestpositionto implementpoliciesthatfulfill their obligations under the PRA yet also preserve the privacy rights of their employees. E-mails canbe routedthrough agency servers, documents canbe cached

24Nissen v. Pierce County, No. 90875-3 to agency-controlled cloud services, and instant messagmg apps can store conversations. Agencies couldprovide employees with an agency-issueddevicethat the agencyretains arightto access, orthey couldprohibitthe use ofpersonal 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. RCW42.56.010(3). CONCLUSION We affirm the Court ofAppeals 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 ofthe text messages at issue may be public records subjectto disclosure. Because it is impossible at this stage to determine ifany messages are in fact public records, on remand the parties

are directed as follows. Lindquist must obtain a transcript ofthe content ofall the text messages at issue, review them, and produce to the County any that are public records consistentwith our opinion. The Countymustthenreviewthosemessagesjust as it would any other public record-and apply any applicable exemptions, redact information ifnecessary, and produce the records and any exemption log to Nissen. As to text messages that Lindquist in good faith determines are not public

25Nissen v. Pierce County, No. 90875-3 records, he must submit an affidavitto the County attesting to thepersonal character ofthose messages. The County must also produce that affidavitto Nissen. We note thatthe Countyrespondedto Nissen'srecords requests andproduced 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.

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

WE CONCUR:

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