Nissen v. Pierce County
183 Wash. 2d 863
Wash.2015Background
- Detective Glenda Nissen requested records relating to Pierce County Prosecutor Mark Lindquist’s private cell phone (call logs and text messages) for specified dates; Lindquist personally owned and paid for the phone but sometimes used it for official business.
- Lindquist obtained call and text logs from Verizon and produced partially redacted copies to Pierce County; the County disclosed partially redacted logs to Nissen but did not produce text message contents (which Verizon retained).
- Nissen sued the County seeking in camera review and disclosure; Lindquist intervened and sought an injunction to prevent disclosure; the trial court dismissed Nissen’s complaint on CR 12(b)(6), holding private cell phone records can never be public records.
- The Court of Appeals reversed, holding text messages prepared in an official capacity can be public records; this Court granted review to resolve whether the PRA covers employee-held private cell phone records and the proper search/production procedures.
- The Supreme Court held that text messages sent or received by a public employee in the employee’s official capacity can be public records of the agency even when created on a private device, but call/text logs created and retained solely by a third-party carrier are not agency records absent agency use.
Issues
| Issue | Plaintiff's Argument (Nissen) | Defendant's Argument (County / Lindquist) | Held |
|---|---|---|---|
| Does the PRA apply to records created or held on an employee’s private cell phone when used for agency business? | PRA covers records reflecting conduct of government regardless of device; employee-created records can be agency records. | Private-device records are outside PRA because employees are not "agencies"; PRA applies only to agency property. | Held: Yes. Records an employee prepares/uses/retains within scope of employment can be agency public records regardless of private device. |
| Are call logs and text message logs (carrier-generated itemizations) public records of the County? | Logs reflect government-related communications and thus are public records. | Logs were prepared/retained by Verizon, not the County; County did not use them, so they cannot be agency records. | Held: No, not as pleaded here—carrier-created logs are not County records absent evidence the County prepared, used, or retained them. |
| Are the contents of text messages potentially subject to disclosure under the PRA? | Texts sent/received in official capacity are writings relating to government conduct and thus public records. | Disclosure of private texts implicates privacy and constitutional limits; texts on private devices should be exempt. | Held: Yes—text message contents can be public records if sent/received within scope of employment; complaint sufficiently alleges some messages are public records. |
| What procedure governs searching employee-controlled personal devices/accounts for PRA compliance and privacy protection? | County must obtain message contents and disclose public records; employee privacy must be balanced. | Employers cannot force invasive searches of private devices; constitutional protections bar compelled production without safeguards. | Held: Employees must perform good‑faith searches and produce public records to the agency; employees may withhold personal material but must submit reasonably detailed affidavits attesting to nonpublic character; agency then reviews and applies exemptions. |
Key Cases Cited
- O’Neill v. City of Shoreline, 170 Wn.2d 138 (2010) (private computer used for government business can store public records)
- Dawson v. Daly, 120 Wn.2d 782 (1993) (PRA applies when an agency is requested to disclose public records)
- Neigh. All. of Spokane County v. Spokane County, 172 Wn.2d 702 (2011) (standard for adequate search under the PRA)
- Concerned Ratepayers Ass’n v. Pub. Util. Dist. No. 1 of Clark County, 138 Wn.2d 950 (1999) (agency "use" of records assessed by nexus to decision-making)
- Confederated Tribes of Chehalis Reservation v. Johnson, 135 Wn.2d 734 (1998) (broad construction of records "relating to the conduct of government")
- Oliver v. Harborview Medical Ctr., 94 Wn.2d 559 (1980) (medical records can relate to conduct of government)
- Houser v. City of Redmond, 91 Wn.2d 36 (1978) (acts of municipal employees are acts of the municipality)