Appeals court: Public business conducted on prosecutor’s private phone is still public

Call records and text messages from Pierce County Prosecutor Mark Lindquist’s personal mobile phone aren’t private if they’re related to public business.

The idea drives a unanimous ruling issued Tuesday by the Washington State Court of Appeals.

“That such government-business-related text messages were contained on a personal cellular phone is irrelevant,” states the ruling, authored by Judge J. Robin Hunt.

The decision adds new reasoning to a growing list of cases that address government officials’ use of private devices to conduct public business, and the implications for the public’s right to know.

Lindquist admits using his private phone for government work, according to the court’s ruling. That doesn’t open a window into his phone – but it opens a latch.

In essence, the three-judge panel reversed a lower court’s dismissal and found that the lower court must review Lindquist’s phone records and text messages to determine whether any of them meet the standard for public disclosure.

The News Tribune sought comment from Lindquist Tuesday. Questions were referred to deputy prosecutor Dan Hamilton, who leads one of the prosecutor’s civil teams.

“In the interest of openness, the county previously turned over any telephone records that may have related to work,” Hamilton said via email. “The appellate court rejected the plaintiff’s overreaching definition of a public record, as did the superior court. We remain confident we will continue to prevail and protect the privacy rights of public servants and everyone who communicates with them.”

Joan Mell, the attorney for sheriff’s Deputy Glenda Nissen, who filed the lawsuit that spawned Tuesday’s ruling, said she and her client were elated.

“The decision is sound, and a huge victory that protects against government operating behind closed doors or offline,” Mell said. “We hope the prosecutor immediately turns over his work-related texts and call log so the public can see he is indeed transparent and using public resources wisely.”

Open-government advocates had been watching the case closely. Toby Nixon, a Kirkland city councilman and former state representative who chairs the Washington Coalition for Open Government, applauded Tuesday’s ruling.

“The Court of Appeals correctly decided that records of government business are public records even if they are sent, received or stored on a private device,” he said. “I think this was as good a decision as access advocates could hope for given the issues and facts in this case.”

The underlying case, Nissen v. Pierce County, is intricate. In two tendrils, it’s climbed to the state Supreme Court and back. It’s been argued in Thurston County Superior Court to avoid potential conflicts of interest.

In 2011, Nissen sued the county after filing a whistleblower complaint. Nissen’s suit demanded access to Lindquist’s personal phone records and copies of text messages sent over a period of a few days, arguing that they contained material relevant to public business.

Initially, in the context of the whistleblower complaint, Lindquist and the county provided records of Lindquist’s phone bill. The records listed 32 calls described as work-related. Other calls and associated numbers were redacted in the billing record, typically on the basis of privacy.

The same records included listings of 16 text messages described as work-related. The records listed the sender’s number and the recipients’; the actual messages were not provided.

After providing the phone bill records, Lindquist and county attorneys opposed further disclosure. In response, Nissen sued.

County attorneys and Lindquist argued that allowing unfettered access to his private phone records violated his constitutional right to privacy. County attorneys also argued that they had no authority to obtain public records from Lindquist’s private cell phone account.

Nissen and Mell questioned the redactions and the county’s arguments. They sought an in-camera (private) review from a judge to determine whether the phone records and text messages involved public business.

In 2011, Thurston County Superior Court Judge Christine Pomeroy, since retired, sided with the county and dismissed Nissen’s suit. Pomeroy declined to conduct an in-camera review, and found that Lindquist’s phone bill wasn’t a public record.

Nissen appealed. Tuesday’s ruling from the Court of Appeals reversed Pomeroy’s decision, and ordered further review of the phone records.

The appeals judges granted concessions to both sides.

Nissen and Mell had argued that the presence of any public record on the phone meant everything on the device was open to disclosure under the state Public Records Act. The court refused to go that far.

“Purely personal communications of government officials are not public records subject to PRA disclosure,” the ruling states. “Nor does a government employee’s use of a single device for both work and personal communications transform all records relating to that device into ‘public records.’ ”

At the same time, the court noted that Lindquist’s decision to use his personal phone for public business, “rendered his cellular phone use no longer purely personal.”

The ruling went on to cite a prior Supreme Court case, stating, “If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.”

Tuesday’s ruling closed with a nod toward a dilemma: The actual phone records haven’t been formally reviewed by a judge. As a result, the appeals judges had no way to determine whether individual elements of the records were public or private. The ruling leaves that task to the lower court.

“The superior court must make this determination,” the ruling states.