Another decision has been handed down that should further discourage public officials from utilizing private email accounts to conduct public business. Certainly public officials are welcome to use any email account they wish, but they shouldn’t expect the use of a non-government account to shield their communications from the public. (And, if that’s the case, why bother using a private email account while working for the government? All it really does is give the impression you’re trying to hide something.)
In this case, a Puyallup, Washington councilman (Steve Vermillion) set up his own personal website and email address to use in conjunction with his state congressional run. He continued to use it after this effort had ended, and frequently received emails from constituents and city employees at the private email address. For the most part, Vermillion handled city business through a city account, but still answered questions and engaged in communications related to public work through his private account.
These emails were requested under the state’s public records law. Vermillion claimed emails contained in this account were not subject to the law. His legal theory — backed up by the city itself — was that any emails contained in this account were his “private papers.” The denial of the records request resulted in this lawsuit. A lower court found in favor of the records requester and the city immediately appealed it to the state’s Supreme Court. The Supreme Court dumped it back down a level to the Appeals Court, forcing the line-jumping defendants to exhaust their other options first.
Unusually (for a public records lawsuit), Vermillion theorized his constitutional rights were violated by the records request. These theories failed to persuade the lower court. From the decision [PDF] (via FourthAmendment.com):
The superior court denied the City’s motion, but granted West’s motion in part, ruling that (1) the Fourth Amendment’s protections against search and seizure were not implicated because Vermillion had no reasonable expectation of privacy in communications “related to the public’s business”; (2) the privacy protections under article I, section 7 did not apply because West was not seeking private information; (3) the First Amendment was not implicated because West was not asking for political activity records; (4) Vermillion was not subject to the City’s policy prohibiting City employees and volunteers from performing city business on personal or third-party “technology resource[s],” which include electronic or digital communications and commingling of City and non-City data files; and (5) the public has a right to inspect public records located on a personal computer unless the records are “highly offensive to a reasonable person and are not of legitimate public concern.” The superior court then ordered Vermillion “under penalty of perjury [to] produce records that are within the scope of [p]laintiff’s records request.”
The Fourth Amendment claim is especially interesting because I have yet to see this raised in conjunction with a public records request. The argument so completely misconstrues these protections it’s amazing the city stepped in to help support it. Then again, most government bodies will take any pitch-black port in a transparency storm, so pushing an argument that posits that a government entity searching for government documents somehow violates a government employee’s Fourth Amendment protections is one of those things you do just in case it might provide a blueprint for future opacity.
Fortunately, the court makes it clear that personal email accounts cannot be used to route around public records requests.
Appellants argue that the superior court erred in ordering Vermillion “to produce e[-]mails from his personal e[-]mail account and swear under [penalty of] perjury that he had complied.” Specifically, Vermillion argues that the PRA does not “authorize an agency to require an elected official to search a personal e[-]mail account.” We reject Vermillion’s argument. Nissen squarely addressed this argument and held that an agency’s employees or agents must search their own “files, devices, and accounts,” and produce any public records, including “e-mails,” to the employer agency that are responsive to the PRA request. The Nissen court also held that affidavits by the agency employees, submitted in good faith, sufficient to satisfy the agency’s burden to show it conducted an adequate search for records. Thus, we hold that it was proper for the superior court to require Vermillion to produce to the City e-mails in his personal e-mail account that meet the definition of a public record under RCW 42.56.010(3) and to submit an affidavit in good faith attesting to the adequacy of his search for the requested records.
The city raised another interesting argument on appeal. And by interesting, I mean novel. The city (and Council member Vermillion) attempted to push the brand new theory that Vermillion’s specific position within the city government somehow made his communications unreachable through records requests. The court found this theory equally unpersuasive.
In reply, appellants argue, for the first time, that the result must be different as applied to them because Vermillion was an elected legislative official, rather than an elected executive official. Appellants contend that this distinction is important because “unlike an elected executive official such as a county prosecutor, an elected legislative official has no legal authority to act on behalf of the city through e[-]mail, or to take any unilateral action on behalf of the City at all.” We disagree.
A record subject to disclosure under the PRA is not contingent on its possessor’s ability to take unilateral action on behalf of the agency. Instead, a record is subject to disclosure under the PRA if it is “a record that an agency employee prepares, owns, uses, or retains in the scope of employment.”
Despite there being very little legal precedent to support these obfuscatory tactics, government employees still hold out hope that the use of private email accounts and personal devices will allow them to skirt their obligations to the public. Sometimes it works simply because the public is unaware of these accounts or devices. You can’t FOIA what you don’t know exists. But even when the public is aware, it far too often requires going through the time and expense of a lawsuit to force the government to turn over these documents.