In a decision issued late last week, the Kitsap County Superior Court concluded that, under Washington's Public Records Act, public agencies must produce emails sent or received from the private accounts of elected officials, as well as from City-owned servers. The case underscores the importance of having clear upfront policies in place limiting the use of personal devices to conduct official business and confining official communications to agency-owned equipment, or at least to segregated email accounts designated for official business.
In September, two local citizens sought the disclosure of emails between members of the City Council of the City of Bainbridge Island and the City's Utility Advisory Committee, as well as Council member emails addressing the City's utility department or city employees. The City produced responsive emails from its own servers but argued that it was not obligated to provide emails from the individual computers of Council members who do not consent to releasing records from their person computers. Litigation followed.
In last week's decision, the Kitsap County Superior Court rejected the City's defense. The Court agreed that Council members, acting in their individual capacities, have no obligations under the Public Records Act. However, when acting in their official capacities, Council members are obligated to comply with the Public Records Act and must release all non-exempt public records, regardless whether the records were created on the agency's system or the private emails of City Council members.
The judge has not yet ruled on whether the City Council members must produce the hard drives of their personal computers for inspection or whether some measure short of that will be sufficient to meet the City's Public Records Act obligation. But the Court's decision serves as a strong reminder of the broad scope of the Public Records Act and the need for public agencies to have a well-understood policy requiring official business to be conducted on agency-owned devices, or at least to have elected officials segregate their emails into different accounts and direct all emails related to public business into a public account. Following such policies may spare elected officials and employees the burden and potential embarrassment of having to turn over their private emails or even having to produce the hard drives of their personal computers for inspection.
If you have any questions about this post or the Washington Public Records Act, please contact a member of GTH's Municipalities & Municipal Entities practice group. We have decades of experience in assisting Washington cities, PUDs, and other municipal entities in dealing with the Public Records Act, the Open Meetings Act, the Washington Constitution, public contracting, and other aspects of municipal law in Washington.