Pierce prosecutor asks state Supreme Court to prevent disclosure of his phone records

Pierce County Prosecutor Mark Lindquist is taking the debate over disclosure of his phone records to the Washington Supreme Court.

In two briefings filed last week, attorneys representing the county and Lindquist asked the high court to review a Sept. 9 ruling by the state Court of Appeals.

The appeals court ruled that a lower court must examine Lindquist’s personal phone records and text messages to determine whether any meet the standard for public disclosure.

Appealing to the state’s highest court delays that examination. The Supreme Court could accept Lindquist’s petition — lengthening the debate — or reject it, theoretically triggering the lower court’s examination of the phone records.

The appeal also means more public money spent defending Lindquist’s position.

The county has paid $253,449 to outside attorneys working on the case, according to billing records from the county’s risk management division. The county’s recent petition to the Supreme Court was written by Seattle attorney Phil Talmadge, a former Supreme Court justice who charges $375 per hour.

Open-government advocates have been watching the phone-records case closely.

The argument adds to a growing list of legal disputes involving public officials using private devices for work-related communications. Former state Auditor Brian Sonntag and former Attorney General Rob McKenna recently co-wrote a guest opinion for The Seattle Times that touched on the issue and Lindquist’s role.

The underlying case, Nissen v. Pierce County, dates to 2011. Nissen, a sheriff’s deputy, sued for access to Lindquist’s personal cellphone records and copies of text messages sent over a period of a few days, arguing they contained material relevant to public business.

The county and Lindquist argued the records were private. The lower court agreed. Nissen appealed. The appeals court reversed the lower court, finding the records could be public if they pertained to public business.

“That such government-business-related text messages were contained on a personal cellular phone is irrelevant,” the appeals court ruled, citing prior decisions by the state Supreme Court.

In his brief to the Supreme Court, Talmadge, representing the county, called the effort to access Lindquist’s records “a fishing expedition.” He contends Lindquist doesn’t meet the definition of an “agency” under the public records law, and therefore isn’t subject to disclosure requirements.

Talmadge also accuses Court of Appeals judges of making “egregious factual misstatements” in their ruling.

The supposed misstatements: that Lindquist conceded the records in dispute were related to government business; and that Lindquist prefers to use his personal cellphone to conduct government business.

The brief states Lindquist didn’t concede the records were related to government business; only that they “may” be related.

Talmadge’s brief argues Lindquist used his personal phone to make political calls to obey state law and avoid using public resources for campaign purposes. Most of the calls and text messages in question were made in August 2011; Lindquist was elected in November 2010.

The timetable for the Supreme Court’s response is unclear. Nissen’s attorney, Joan Mell, and other interested parties are likely to file response briefs in the coming weeks.