“It’s becoming a hotter issue,” Richard Kielbowicz, an associate professor at the UW who teaches classes on communication law and policy, said.
According to Kielbowicz, the issue of public records is coming up more and more in court cases. Are correspondences among union members private or public information? Earlier this month, the Washington State Supreme Court erred on the side of public.
“The courts are going to have to, in a lot of different situations, going to have to define how far you can go in sort of prying into people’s personal communications when they involve work-related activities,” Kielbowicz added.
In a loss for a major UW union, the high court ruled that the union should release internal correspondences relating to their organizing, despite the fact that some of these communications took place via personal devices.
The court’s unanimous opinion, filed Sept. 5 and written by Justice Debra Stephens, overturned an earlier Court of Appeals decision. The appeals court previously argued that the documents in question — those created by the Service Employees International Union (SEIU) Local 925 — existed outside of the “scope of employment,” and that the records, therefore, did not have to be released.
This saga dates back to a December 2015 public records request by the Freedom Foundation, a free-market conservative think tank located in Olympia seeking emails or other records from several UW faculty members and employees related to their union efforts.
While the UW said the “vast majority” of emails included for one of the union members — atmospheric sciences professor Robert Wood — were from his UW email address, others were “personal and private emails related to union organizing” among other topics, according to an April 2016 union complaint filed in King County Superior Court seeking to prevent the release of some of the records.
The complaint argued that, while some of the requested emails “probably related to government business,” the release of many “strictly personal” ones would chill union organizing efforts, restrain speech, and violate individuals’ privacy rights. It also said that the records being sought by the Freedom Foundation were not of legitimate public concern.
Early on in the case, the King County Superior Court ruled that state law did not require the union to release all 3,913 pages that the UW had originally identified. Instead, just over 100 pages were provided to the Freedom Foundation.
The Court of Appeals affirmed this decision, citing the “scope of employment” test. That test says documents can be a public record if they are prepared, owned, used, or retained “within the scope of employment,” the Washington Supreme Court argued in a 2015 case.
The Freedom Foundation then petitioned the court for review, saying that the "scope of employment" test applies only to records created or stored on an employee's personal device and should not be extended to records on public agencies' email servers. Most of the records the Foundation sought were stored on such servers.
The state Supreme Court agreed with this rationale, reversing the Court of Appeals decision. The court’s opinion says, “the Court of Appeals Erred by Applying [the scope of employment test] in This Case.”
The state Public Records Act (PRA) defines records under its jurisdiction as “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,” according to the court’s opinion.
The Washington State Supreme Court argued that the scope of employment test applies only to the third prong of the definition — whether the document in question was “prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
However, according to the high court’s decision, the question raised in this case is different: whether records stored on agency servers satisfy the second aspect of the definition, which is whether they contain “information relating to the conduct of government or the performance of any governmental or proprietary function.”
The Supreme Court said that in this case the emails “appear” to satisfy the second part of the definition of a public record.
In her decision, Justice Stephens wrote “Consistent with the PRA's ‘strongly worded mandate for broad disclosure of public records,’ we construe the statute's disclosure requirements liberally and its exemptions narrowly.”
The Washington Supreme Court sent the case back to the King County Superior Court so it could issue another ruling for “application of the proper analysis and further consideration of the Union's other arguments against release.”
The Freedom Foundation’s litigation counsel, Sydney Phillips said it was “extremely important that the Supreme Court was able to take a firm stance, to say that citizens are entitled to this information.”
She says it will likely take close to a year for a resolution to this case, almost five years after it began.
A representative for SEIU 925 could not be reached for comment.
Kielbowicz said that from the vantage point of the union, their best bet is to get the state Legislature to create an exemption from this in the law.
“Maybe that suggests the state Legislature should jump in, not just for union activities,” he said.
The UW didn’t take a side in the aftermath of the case.
“This case was largely between the Freedom Foundation and SEIU 925. Our primary interest throughout has been to gain clarity on our obligations under the state’s public records law,” university spokesperson Victor Balta said in a statement.
The case is SEIU 925 v. University of Washington.
Reach reporter Jake Goldstein-Street at email@example.com. Twitter: @GoldsteinStreet
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