Sides await ruling in Pierce County cellphone case

Staff writerMarch 16, 2014 

Does the public have a right to see Pierce County Prosecutor Mark Lindquist’s private phone records if they include work-related information?

On the other hand, does he have a legal right to keep the contents to himself?

The questions represent the core of two lawsuits filed in 2011 and 2012 that currently are parked at the Washington state Court of Appeals awaiting rulings.

Open-government and privacy advocates are watching closely, sensing a significant test of the line between public records and private interests in the digital age.

Heavy legal hitters have joined the debate. They include the Washington Coalition for Open Government, state newspaper publishers, state employee unions, the state teachers union, the state attorney general and Phil Talmadge, a former legislator who also served as a state Supreme Court justice.

The suits were filed by Glenda Nissen, a Pierce County sheriff’s deputy. She contends Lindquist retaliated against her and harmed her reputation by accusing her of sending an anonymous death threat to a former employee of the prosecutor’s office.

Nissen has repeatedly denied the accusation. She and others were investigated at the time, but the author of the threat was never identified, and no criminal charges were filed in connection with the incident.

Nissen subsequently filed public disclosure requests for Lindquist’s phone records and text messages, believing they could bolster her claim of retaliation.

At first, Lindquist voluntarily provided copies of the phone bill, with some information redacted on privacy grounds. Since then, he and county lawyers (as well as Talmadge) have filed briefs opposing additional disclosure, adding more fuel to the legal battle.

The early scorecard favors the county and Lindquist.

Two Thurston County Superior Court judges dismissed the suits, ruling that Lindquist’s private phone records don’t meet the definition of public records and that the courts have no power to compel their release.

Nissen and her attorney, Joan Mell, have appealed the decisions — and the debate has outgrown the original circumstances.

“I am concerned about the way the elected prosecutor is using the power of his position. I want to know and I want the people to know how he is conducting business,” Nissen said in a statement provided to The News Tribune.

“… He will not produce the text content to me. He is even refusing to give the records to the court to see so that the court can decide to only produce the work-related ones.

“He is refusing to be transparent in how he conducts the people’s business. He says he can do this because he used his personal phone for business instead of his county-issued phone.”

Lindquist responded with a statement of his own, referring to details of the original disclosure requests and his original response.

“In the interest of openness, the county was authorized to release private phone records belonging to (sheriff’s) detective Ed Troyer and me,” he wrote. “When (Nissen) sued anyway, it became clear that the requests were not about records, but instead an attempt to violate the constitutional privacy rights of public servants, our families and everyone we communicate with.

“We are taking a strong stand against frivolous and harassing lawsuits. The county no longer pays off nuisance value claims. … We successfully moved for dismissal and are seeking attorney fees.”

Lindquist acknowledges he uses his private phone for work purposes. No county policy or state law prevents him from doing so. County spokesman Hunter George said the county is developing a policy regarding personal devices, but it’s still in the early stages.

Lindquist’s phone bill includes records of calls and text messages, but not the content of the text messages, which (theoretically) are held by a third party: the cellphone provider.

According to court records, Lindquist identified 16 text messages that might be work-related based on who received them. He says he hasn’t seen the old messages in more than two years and doesn’t remember what they say.

Nissen and Mell, along with open-government advocates, have asked the courts to conduct a private in-camera review of the messages to determine whether they should be disclosed.

The sticking point: the cellphone provider would have to supply the messages, and Lindquist, who owns the records, would have to consent to the access.

The county and Lindquist oppose the review, arguing it would violate Article I, section 7 of the state constitution (which protects privacy) and the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures.

Both sides paint grim, slippery-slope pictures of potential outcomes if they lose the argument.

County attorneys and Lindquist say subjecting privately owned devices to public disclosure could open the door to combing through the private phones and computers of all public employees, such as teachers and firefighters.

A 2011 ruling by retired Thurston County Superior Court Judge Christine Pomeroy acknowledged that idea, finding the phone bill is not a public record, even if it contains government-related information.

“It is not a public record,” Pomeroy wrote. “The private cellphone records of a public elected official or a public employee are not public records. … just because you run for public office does not make you exempt in your maintaining of your right against search and seizure, either under the state constitution or the federal constitution.”

Open-government advocates say the practical result of denying disclosure would allow public officials to run “shadow governments” from private devices while avoiding disclosure.

They point to former Alaska Gov. Sarah Palin, who conducted much of her business through a Blackberry, and New York Gov. Andrew Cuomo, who operates in similar fashion. Palin’s phone records were disclosed to the public after a records request — but Alaska’s disclosure laws differ from Washington’s.

A legal brief filed by open-government advocates and newspaper publishers takes direct aim at such circumstances.

“The potential to wreak havoc to government transparency due to new digital technologies cannot be underestimated as new tools emerge that could allow public officials to skirt public records law unless constrained by the courts,” the brief states. “How will the public know if their elected officials act in the public interest if secret text messages direct their actions?”

Lindquist said a final answer should come from the Legislature rather than the courts.

“If legislators are concerned about public employees using private phones to discuss or text about work, the issue can be addressed by legislation, so long as the resulting laws comport with the U.S. and Washington state constitutions,” he wrote. “For example, while the Legislature likely could prohibit public officials from voting on official matters with private phones, I don’t believe the Legislature could prohibit teachers from talking with a student’s parents on their private phones.”

Two recent state Supreme Court decisions unrelated to the Nissen case also appear to carry weight in the overall argument. The rulings (State v. Roden and State v. Hinton) were tied to a criminal investigation of possible drug dealing. The Supreme Court ruled that text messages sent on private phones were protected from warrantless searches.

A brief in the Nissen lawsuits filed by state Attorney General Bob Ferguson tries to thread the legal needle and strike a balance between privacy rights and public disclosure.

The brief accepts the premise that a private phone bill is not a public record, but suggests individual text messages could be public records if they are created for governmental purposes.

Citing model rules for public disclosure, the brief suggests public employees should provide work-related messages to their employer, thus allowing governments to disclose them in standard fashion.

“The court should uphold the principles of open government while also acknowledging and protecting the personal right to privacy of government officials and employees,” the brief concludes.

“Thus, the attorney general suggests an analysis focusing on whether a government employee using a personal device is acting for work or personal purposes when determining whether a public record has been created.”

Sean Robinson: 253-597-8486

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