Employment Law Daily Emails related to union organizing found on government servers may be public records
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Tuesday, September 10, 2019

Emails related to union organizing found on government servers may be public records

By Robert Margolis, J.D.

Question of whether records are prepared within “scope of employment” is relevant only if they are from private accounts or devices.

The Washington Supreme Court has reversed a state appellate court order upholding an injunction entered against the release of emails from University of Washington faculty members concerning union organizing, holding that the appellate court applied the wrong test when analyzing whether the records, found on government servers, are public records subject to release. The Supreme Court remanded the case to a trial court for proper consideration of the relevant statutory factors (Service Employees International Union Local 925 v. The University of Washington, September 5, 2019, Stephens, D.).

Public records request. The Freedom Foundation filed a public records request seeking records concerning union organizing by several faculty members at the University of Washington. The University asked one faculty member to search his emails and after receiving them, gave notice that it intended to release a portion of them unless an injunction was entered. The emails cane both from University and non-University accounts but were stored on University servers.

The union then moved in King County Superior Court for an injunction against the records’ release, arguing that as “personal and private emails related to union organizing,” they are not “public records” under the Washington Public Records Act. RCW 42.56. The trial court granted the injunction, which the court of appeals affirmed. The Foundation then petitioned to the Washington Supreme Court, arguing that the appellate court misapplied the “scope of employment” test from a recent Supreme Court decision in Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015).

Statutory definition. The Washington Public Records Act (PRA) defines a public record as follows, in relevant part: “[(1)] any writing [(2)] containing information relating to the conduct of government or the performance of any governmental or proprietary function [(3)] prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” RCW 42.56.010(3). A record must meet all three prongs of the test to be a public record.

“Scope of employment” test. The Washington Supreme Court in Nissen applied a “scope of employment” test to the third prong of the statutory public records definition, because it helps to determine whether records are “prepared, owned, used, or retained by an agency,” even if those records are found on an employee’s personal device. That was not the issue in this case, the Supreme Court noted, because the records were on agency servers. Thus, the question was whether the records, stored on agency servers, satisfied the second statutory prong: did they “contain information relating to the conduct of government or the performance of any governmental or proprietary function,” RCW 42.56.010(3). The appellate court incorrectly used the “scope of employment” test to address the second prong, the Supreme Court held.

The Supreme Court reviewed the Nissen decision and noted that it used a different test than “scope of employment” for the second prong, referencing requirements of a separate Washington statute, RCW 42.56.010(3). It is clear, according to the Supreme Court, that the “scope of employment” test is directed to the unique circumstances where personal accounts or devices are used, given employees’ heightened privacy expectations in those contexts. While a categorical exemption for records on personal devices or from personal accounts would be too broad, the “scope of employment” test strikes the appropriate balance “between employee privacy and government transparency,” the Supreme Court reasoned.

Thus, to the extent any of the emails at issue were on personal accounts, the “scope of employment” test may be appropriately applied on remand; but for emails “retained” by an agency, it is inapplicable, the court held.

Government function. The Foundation made two arguments that the emails at issue satisfy the second prong of the statutory definition of a public record. First, it argued that any email that a government employee sends using a government account or device is a public record because it indicates how the employee is using taxpayer resources. The Supreme Court rejected that argument as overbroad. If that were the test, it would effectively eliminate the first and second prongs of the statutory definition for all employee emails sent on government accounts, no matter their content. Courts in other jurisdictions have uniformly rejected such an argument, the Supreme Court pointed out.

The Foundation’s second argument was limited to emails and LISTSERVE postings relating to faculty working conditions and the University’s educational mission. The Foundation argued that any such records likely “relate to the state as an employer and the state as an educator,” and thus concern government conduct. The Supreme Court agreed, holding that how a state university treats its students and faculty “relat[e] to the conduct of government,” under the statute, RCW 42.56.010(3).

The Union cited case law from another jurisdiction holding that union-related emails are inherently personal, and thus not properly considered public records. But as the Supreme Court pointed out, the statute at issue in that case, from Michigan, is much narrower than the Washington Public Records Act, limited to writings prepared or used “in the performance of an official function,” Mich. Compiled Laws 15.232(e).

Thus, emails that include discussions of the University’s treatment of students or faculty, or discuss the University’s educational function, would meet the standard of public records, even in the context of union communications. The Supreme Court held that the appellate court erred when it held, as a matter of law, that “union activities” are outside the “scope of employment” because employers do not have the right to control those activities. As noted above, so long as the records discuss subjects that fall within government functions, they need not have been sent within the “scope of employment.”

Remand. Because the appellate court ruled that the emails were not public records because they were sent outside the “scope of employment,” it did not address other arguments the union made, invoking statutory and constitutional exemptions from the PRA. The Supreme Court thus remanded to the trial court.

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