Academic journal article Washington Law Review

Public Records in Private Devices: How Public Employees' Article I, Section 7 Privacy Rights Create a Dilemma for State and Local Government

Academic journal article Washington Law Review

Public Records in Private Devices: How Public Employees' Article I, Section 7 Privacy Rights Create a Dilemma for State and Local Government

Article excerpt

INTRODUCTION

As state and local governments complete their move into the digital age, important questions concerning the intersection of the Washington Public Records Act (PRA or "the Act"),1 privacy, and personal electronic devices remain unresolved. Recent lawsuits illustrate a growing tension between the PRA and Washington's constitutional right to privacy.2 As courts struggle to define the PRA's mandates in an era of electronic records and mobile devices, the resulting decisions have the potential to create a considerable dilemma for state and local government. Under current PRA case law, a local government or state agency could face a situation where it has a duty to produce public records it does not possess and cannot constitutionally obtain.3 The problem is that while agencies have a duty to produce public records, the PRA does not provide the necessary tools, such as a warrant provision, that would allow an agency to acquire records protected by article I, section 7 of the Washington State Constitution.4 While this Comment focuses on the dilemma as it relates to public records contained in a private computer or email account, an analogous situation arises where a public employee sequesters records in his or her home. To illustrate the general problem, consider the following hypothetical:

A public employee of a Washington city decides to take his city laptop computer home with him. The next day, the city receives a public records request demanding documents contained on the employee's city computer. The employee claims he has no idea where the computer has gone, but city officials are reasonably certain that the computer is in the employee's home. The employee insists the computer is not at his home and that the city may not search his home to look for it. Can the city, solely on the basis of PRA, inspect the employee's home in order to recover and produce responsive public records?

The answer to this question should be a definitive no. A government search of the employee's home would clearly implicate the employee's state and federal constitutional rights, including the employee's right to privacy under article I, section 7 of the Washington State Constitution.5 That provision provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."6 Historically, courts have interpreted the "authority of law" requirement to mean a validly issued search warrant.7

While the above hypothetical envisions a public computer contained inside a private home, it is not clear how the analysis would be materially different for a public record contained inside a private computer. A private computer or smartphone may contain considerable information on the private affairs of an individual.8 Recently, the United States Supreme Court held that a person's smartphone is entitled to Fourth Amendment protection against searches, much the same way as a person's home.9 In other words, the government may not search either without a warrant.10

This Comment argues that agencies lack the necessary "authority of law" under the PRA to compel inspection of a public employee or elected official's private device. This Comment further argues that public employees do not forfeit their constitutional rights merely by working for government. Like the prohibition against government searching of a public employee's home,11 government should not be permitted to search an individual's private smartphone or computer without a valid warrant based on probable cause. However, the dilemma this creates for local governments and state agencies is substantial.12 It is plausible that agencies will be obligated under the PRA to disclose records that they cannot constitutionally access.13 In this situation, agencies should not face statutory penalties for failing to do the impossible.

Tension between the PRA and Washington's constitutional right to privacy has created a dilemma in which governments may have a duty to produce records they cannot constitutionally access. …

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