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Editorial: Public work on private devices must remain public

Thu., May 7, 2015

As public employees move from workplace computers to private devices, they may believe they’ve left the old rules behind.

That’s false. Just ask Hillary Clinton. She took much of her communication as secretary of state offline by using her personal email account. She said this was more convenient, but it also put her work out of reach of those who wanted to examine what should be considered public records. The State Department assured Congress this week that this practice has been discontinued.

Clinton isn’t the only public official who uses private devices for public work, so government on all levels must make it clear that public work is the public’s business.

The Washington Supreme Court decided in March to take a case that should clarify the matter for public workers in this state. On Monday, the Attorney General’s Office weighed in with an encouraging brief that places the Public Records Act above a potentially damaging privacy argument.

The case, Nissen vs. Pierce County, goes back to 2011, when Deputy Sheriff Glenda Nissen claimed Pierce County Prosecutor Mark Lindquist had public information on his private cell phone. Lindquist didn’t deny using his private phone for government work, but he said a request for its contents, including text messages, was an invasion of his privacy.

A Thurston County court agreed, but last September a Court of Appeals unanimously overruled the judge, saying the only way to know whether public information was on a private phone was to look at it. That might seem like an obvious conclusion, but Pierce County appealed to the Supreme Court, maintaining that Lindquist’s privacy rights would be infringed, even if it were just a judge reading the messages.

As of last October, Pierce County had spent more than $250,000 on outside counsel to support Lindquist’s position, according to the News Tribune of Tacoma. The Supreme Court could spare taxpayers a great deal of money with a clear-cut ruling that says the work product of a government worker is a public record, regardless of how it was produced.

That’s Attorney General Bob Ferguson’s opinion in a nutshell, and it echoes the points made by former Attorney General Rob McKenna and former State Auditor Brian Sonntag in an op-ed published last fall in the Seattle Times. “Public records do not become private property when created and stored on personal devices,” they wrote.

Imagine if that were not the case. Imagine the court carving out a “Lindquist Exemption.” As the attorney general’s brief states, “it would severely undermine the (Public Record) Act’s purpose if public employees could escape its reach by simply using a personal device to conduct government business.”

The Supreme Court should disconnect this line of secrecy once and for all.