Public Records in Private Devices: How Public Employees' Article I, Section 7 Privacy Rights Create a Dilemma for State and Local Government

• Jurisdiction: Washington,United States
• Citation: Vol. 90 No. 1
• Publication year: 2021

PUBLIC RECORDS IN PRIVATE DEVICES: HOW PUBLIC EMPLOYEES' ARTICLE I, SECTION 7 PRIVACY RIGHTS CREATE A DILEMMA FOR STATE AND LOCAL GOVERNMENT

Philip Paine

Abstract: The Washington Public Records Act (PRA or "the Act") is a wide-ranging law that heavily weighs in favor of public disclosure of government processes. Initially enacted as a citizen initiative in 1972, the Act has many beneficial uses. For example, it provides insight into a local government's decision-making process and ensures that citizens have access to their own government. However, the PRA's potential to be used to invade personal privacy raises significant constitutional concerns. When an employee in possession of a public record invokes the protection of article I, section 7 of the Washington State Constitution, which protects an individual's right to privacy, and refuses to consent to, for example, inspection of the employee's personal computer, the agency's obligation to produce the record should be at an end. This Comment argues that neither an agency nor a court may compel production of a public employee's private electronic device for inspection under the PRA because employee privacy interests in the device are protected under article I, section 7 of the Washington State Constitution. The PRA does not provide the necessary "authority of law" to justify such an invasion. While this constitutional protection may, in certain situations, frustrate the efforts of requestors to access the workings of their government agencies, it also provides the public employees of Washington some measure of comfort that their private affairs are entitled to the same level of constitutional protection as their fellow citizens. Ultimately, the legislature should amend the PRA to clarify the obligations of agencies and to strike an appropriate balance between employee privacy and governmental transparency.

INTRODUCTION

As state and local governments complete their move into the digital age, important questions concerning the intersection of the Washington Public Records Act (PRA or "the Act"),(fn1) privacy, and personal electronic devices remain unresolved. Recent lawsuits illustrate a growing tension between the PRA and Washington's constitutional right to privacy.(fn2) As courts struggle to define the PRA's mandates in an era of electronic records and mobile devices, the resulting decisions have the potential to create a considerable dilemma for state and local government. Under current PRA case law, a local government or state agency could face a situation where it has a duty to produce public records it does not possess and cannot constitutionally obtain.(fn3) The problem is that while agencies have a duty to produce public records, the PRA does not provide the necessary tools, such as a warrant provision, that would allow an agency to acquire records protected by article I, section 7 of the Washington State Constitution.(fn4) While this Comment focuses on the dilemma as it relates to public records contained in a private computer or email account, an analogous situation arises where a public employee sequesters records in his or her home. To illustrate the general problem, consider the following hypothetical:

A public employee of a Washington city decides to take his city laptop computer home with him. The next day, the city receives a public records request demanding documents contained on the employee's city computer. The employee claims he has no idea where the computer has gone, but city officials are reasonably certain that the computer is in the employee's home. The employee insists the computer is not at his home and that the city may not search his home to look for it. Can the city, solely on the basis of PRA, inspect the employee's home in order to recover and produce responsive public records?

The answer to this question should be a definitive no. A government search of the employee's home would clearly implicate the employee's state and federal constitutional rights, including the employee's right to privacy under article I, section 7 of the Washington State Constitution.(fn5) That provision provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."(fn6) Historically, courts have interpreted the "authority of law" requirement to mean a validly issued search warrant.(fn7)

While the above hypothetical envisions a public computer contained inside a private home, it is not clear how the analysis would be materially different for a public record contained inside a private computer. A private computer or smartphone may contain considerable information on the private affairs of an individual.(fn8) Recently, the United States Supreme Court held that a person's smartphone is entitled to Fourth Amendment protection against searches, much the same way as a person's home.(fn9) In other words, the government may not search either without a warrant.(fn10)

This Comment argues that agencies lack the necessary "authority of law" under the PRA to compel inspection of a public employee or elected official's private device. This Comment further argues that public employees do not forfeit their constitutional rights merely by working for government. Like the prohibition against government searching of a public employee's home,(fn11) government should not be permitted to search an individual's private smartphone or computer without a valid warrant based on probable cause. However, the dilemma this creates for local governments and state agencies is substantial.(fn12) It is plausible that agencies will be obligated under the PRA to disclose records that they cannot constitutionally access.(fn13) In this situation, agencies should not face statutory penalties for failing to do the impossible.

Tension between the PRA and Washington's constitutional right to privacy has created a dilemma in which governments may have a duty to produce records they cannot constitutionally access. Part I of this Comment provides background on the PRA and its expansion in the digital age. Part I also provides background on the privacy protections of article I, section 7 of the Washington State Constitution and details the tensions that have arisen between article I, section 7 and the PRA. Part II of this Comment explores the dilemma facing Washington governments, details how the dilemma arose, and examines its causes. Part III suggests steps that the legislature should take to address the dilemma and ensure that the PRA strikes an appropriate balance between personal privacy and open access to government records.

I. SETTING THE STAGE: CONSTITUTIONAL PRIVACY IN THE PUBLIC RECORDS ERA

A. The Washington Public Records Act

On November 7, 1972 the voters of Washington State overwhelmingly adopted ballot Initiative Measure 276 ("Initiative 276"), enacting into law what would become the Washington Public Disclosure Act (PDA).(fn14) The initiative was part of a broad societal push to provide transparency in government operations, particularly in the area of campaign finance.(fn15) The initiative was enormously popular and enjoyed the support of seventy-two percent of Washington voters.(fn16) Today we know the public records part of the original PDA as the Washington Public Records Act (PRA),(fn17) a "strongly worded mandate for broad disclosure of public records."(fn18)

Initiative 276 was more focused on campaign finance transparency than on the disclosure of government records.(fn19) The 1972 law prescribed a variety of disclosure rules for government officials, candidates, and lobbyists,(fn20) and it was these campaign finance provisions that drew the majority of debate and media coverage at the time.(fn21) Candidates for political office were made to disclose both the source and size of their campaign contributions(fn22) and lobbyists were required to register with the state government.(fn23) However, a lasting impact of the initiative would be its requirement that state agencies and municipalities provide access to government records for inspection and copying.(fn24)

The PRA generally requires state agencies, including municipal corporations, to make all records reflecting the workings of government available for public inspection and copying.(fn25) The PRA defines "public record" expansively to include any "writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."(fn26) Generally, Washington courts have, consistent with the declared intent of the Act,(fn27) construed the PRA's disclosure provisions expansively, limited only by narrowly construed exceptions.(fn28) In other words, the PRA sweeps broadly, and only records that fit within the specific statutory exemptions may be withheld from its grasp.(fn29)

The PRA provides a variety of procedural rules that agencies must follow to fully comply with the PRA's mandate. For example, agencies must respond to records requests promptly.(fn30) This means that within five business days an agency must either (1) provide the requested records, (2) provide a reasonable estimate of the time needed to fill the request, or (3) deny the request.(fn31) If the request appears unclear, the agency may ask the requestor to provide clarification on the records being sought.(fn32) If the requestor...