Seattle Times Editorial, June 18, 2014, Seattle Times
A SPATE of public-records cases in Washington state are raising a question that shouldn’t have to be asked at all: Should public officials be allowed to evade public-records requests when they use their own cellphones, computers and email accounts? Of course not, but that hasn’t kept them from trying.
Take Pierce County Prosecutor Mark Lindquist. Sometimes he uses his personal cellphone to send text messages about county business, and not his county-issued cellphone. He says he ought to be able to keep those messages secret because he is paying the phone bill. When Lindquist refused to cooperate with a Public Records Act request, a detective in the Sheriff’s Department filed a suit that currently awaits a ruling in the state appeals court’s Division II.
Lining up on Lindquist’s side are the Washington Federation of State Employees and the Washington Education Association, which have filed briefs on his behalf.
But the judges should have no trouble seeing the flaws in Lindquist’s legal reasoning. A private cellphone really is no different from a private email account; and where email is concerned, the courts have been clear. A series of rulings have established that, whether a public official uses a personal mailbox or an official one, the emails still must be disclosed.
The state Supreme Court laid down that rule in a City of Shoreline case in 2010, and last month a Kitsap County Superior Court judge further clarified the issue. Two Bainbridge Island council members, David Ward and Steven Bonkowski, did public business from their personal computers, and they deleted their emails before two island residents filed public-records requests. Judge Jeanette Dalton ruled the council members were subject to the same records-retention requirements as the city, and she ordered Bainbridge Island to conduct a forensic investigation of the council members’ home computers.
When the council members conducted city business on personal computers or with personal email accounts, the judge said they created public records that are subject to inspection. That means they have implied their consent to a search of their personal accounts.
The principle should apply to cellphone text messages as well. Yet Lindquist and allies are trying to turn the case into something it’s not — a case concerning privacy rights. The union brief asserts that “the privacy rights of approximately one-half million [Washington] public employees (and their families) are at risk.”
Nonsense. If that argument prevails, public officials would have established a new way to evade disclosure.
The Washington Coalition for Open Government points out that in other states, numerous public officials are using private texts to get around public-records requirements — like the San Jose council members who were given voting instructions by text during a meeting by representatives of unions and other special interests.
If Lindquist and other state public employees wish to avoid opening their personal messaging accounts to public inspection, they shouldn’t use them.
The public’s business should be conducted in the open — that’s why we have the public-records law in the first place.