The following essays represent the analysis and viewpoints of their authors.

Finding 2: Public Officials and Agencies Obstruct Requesters

Some Officials Use Technology To Avoid Disclosure Laws

By Peggy Watt

More than a decade ago, the Washington state Supreme Court ruled that public documents saved on personal cell phones and other private devices were still public records. But it’s sometimes difficult to enforce the rule without lengthy and expensive investigations.

Those ubiquitous smartphones are handy communications tools, but they are also a temptation to abuse the transparency required under Washington’s Public Records Act. Although Washington courts have affirmed that a public official can’t sidestep the PRA by using personal devices or personal accounts for public communications, some officials have tried to elude the rule.

What’s more, when an errant public official is caught and reprimanded, the taxpayers are often the ones who pay the price in court costs and penalties.

More than a decade ago, the Washington state Supreme Court affirmed that public records on personal devices or accounts are still subject to the PRA. (O’Neill v. City of Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010).) Organizations that train and advise public agencies about compliance -- the Washington Association of Public Records Officers, Municipal Research and Services Center, Association of Washington Cities -- all advise public employees and officials to use their professional email and devices for professional communications. Some agencies even provide officials with separate cell phones to use for official business.

But advice and action differ. How often do public employees and officials try to make an end run around disclosure laws by using their personal cell phones or email accounts? It’s impossible to say because the issue only surfaces when communications are sought and denied -- and that launches a lengthy and expensive process.

A dramatic example was the eight-year battle involving former Pierce County Prosecutor Mark Lindquist, who refused to produce text messages that were on his private cell phone. The state Supreme Court ruled unanimously in 2015 that when public employees use personal devices for public business, the records created are indeed public records subject to disclosure under the PRA. Glenda Nissen, a Pierce County Sheriff’s detective, sought access to information on Lindquist’s personal cell phone. (Nissen v Pierce County, 183 Wn. 2d 863, 869, 357 P. 3d 45, (2015).)

But the public interest didn’t end there. The Pierce County Council paid $950,000 to Nissen for her legal costs and compensation for her original complaint that Lindquist retaliated against Nissen for her public criticism. The county’s real costs, however, topped $2.35 million in legal fees defending Lindquist as a public official.

A similar case involved Puyallup City Councilman Steve Vermillion, who continued using a personal website and email he set up for his campaign even after he was elected. After a four-year fight, the Pierce County Superior Court ruled that the city and Vermillion were wrong to not disclose emails related to public business, even though they were on Vermillion’s private website, and ordered the city to pay a $131,064 penalty. Puyallup spent more than $285,000 on attorneys as the case went through the court system, with Vermillion appealing to the Washington state Supreme Court and then to the U.S. Supreme Court. (West v Vermillion and City of Puyallup, 384 P.3d 634,196 Wash.App. 627, (2016)), which declined to reconsider the lower court’s ruling. The city defended Vermillion although it had no access to the correspondence that was sought, noted Puyallup City Attorney Kevin Yamamoto.

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“What ability do I have to get [a council member] to fess up or supply their smartphone or personal computer so I can search that?” Yamamoto said in an interview. “A 1972-73 act never anticipated the way we communicate today.”

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That’s dramatically illustrated with another type of technology that can subvert the PRA: Use of messaging apps that routinely delete messages after a short time. For example, messages sent on Signal, Confide, Snapchat and others can automatically self-destruct after a specified period, even if the conversation is a group chat among multiple users. Public officials' use of this software may also violate record retention laws, and could enable an end run around open meetings laws.

The challenge, of course, is that the evidence vanishes. Exposure relies on public servants (or their correspondents) with a conscience. Recent research by the Colorado Freedom of Information Coalition found that only Michigan has expressly prohibited state departments and agencies from using any technology that prevents them from maintaining or preserving electronic public records as required by law. The Colorado FOI Coalition is advocating for similar legislation in their state, and Washington should consider the same.

In addition to these cases, the PRA clarifies identifying a public record as “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)). But not all public officials have learned this costly lesson, perhaps in part because it doesn’t cost them. Allegations have been made of similar end runs in other agencies, where public employees have even been encouraged to keep certain correspondence on private devices.

Peggy Watt is a longtime journalist and a professor at Western Washington University who has been on the WashCOG board since 2011.