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Text Messages Are Now Fair Game Under the Public Records Act

August 27, 2015


Curious about the text messages of your public officials on their personal phones? A ruling today by the Washington State Supreme Court just definitively gave you access. The Washington Supreme Court held that text messages sent and received by a public employee, in the employee's official capacity, are public records of the government employer—even if the employee used a private cell phone.

The ruling springs from a request made under the Public Records Act related to Pierce County Prosecutor Mark Lindquist. The requester sought Lindquist's cellular phone records on two dates—August 2, 2011 and June 7, 2010. The phone number listed on the Public Records Act request was for a phone bought by Lindquist—a phone for which he made the monthly service payments.

Lindquist—like many public employees—used his phone in the course of his job and for personal matters. In fact, nearly half of the text messages Lindquist sent or received and many of his phone calls during the relevant period seemed related to his job as the county's elected prosecutor. Lindquist decided to provide the county a call log and text log—created by the phone company—that listed whom he called and communicated with via text message. He did not provide to the county the content of the text messages. The county then redacted those calls and text references that were personal in nature, based upon Lindquist's guidance. The lawsuit began when no text messages were provided in full.

The Supreme Court found that text messages are clearly public records: if an employee could avoid disclosure by merely using a personal cell phone, the purposes of the Public Records Act  would be thwarted. But the Court held that the documents created by the phone company—the phone call and text message number log—were not actually public records because they were not prepared, owned, used, or retained by an agency.

Interestingly, the Supreme Court did provide guidance on how to segregate personal and private material from cell phones. It directed employees who have been asked to comply with the Public Records Act to submit an affidavit to their employer attesting to the personal character of those messages the employee chooses not to submit to the government employer for review. But if the messages are work related, they must be provided.

For the last several years, a number of state and local governments have begun enacting policies regarding personal smartphone records and the Public Records Act. These policies take a number of approaches, but generally include barring the use of text messaging or text documenting for public employee work unless a copy is being captured to be kept pursuant to record retention policies. Today's ruling supports this step and will likely lead to more entities enacting these policies and stronger enforcement of the existing policies.