In a 9-0 decision this morning the state Supreme Court ruled that the text messages of government employees that relate to official business, even on their private phone, are public records. From the ruling:
Five years ago we concluded that the Public Records Act (PRA), chapter 42.56 RCW, applied to a record stored on a personal 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." Today we consider if the 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 a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.
One potential loophole in this ruling, however, is the fact that the government employee would be the one to determine if the text messages on their private phone were public records. Responding to this dilemma the court wrote:
We recognize this procedure might be criticized as too easily abused or too deferential to employees' judgment. Certainly the same can be said of any search for public records, not just for records related to employee cell phone use . . .
Second, those criticisms spotlight why agencies should develop ways to capture public records related to employee cell phone use . . .
Agencies could provide employees with an agency-issued device that the agency retains a right to access, or they could prohibit the use of personal 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.
Now that the Supreme Court has ruled that all records related to official business are in fact public records state officials should adopt procedures to make sure that any public business conducted on private devices can be captured by agencies to ensure full compliance with the state's public records law.
