Most private businesses have policies that restrict the use of company-owned computers, cellphones and email to work-related communications. No employee expects a right to privacy on the company’s equipment. For private communication, employees must use their own phones or computers.
For public officials, there is an additional twist. They must not use their own personal phones and computers to skirt the state’s Public Records Act. Recent court rulings have made it clear that when public officials use personal computers and cellphones to conduct public business, they cannot hide those conversations from public disclosure.
In September, a state Court of Appeals ruled that Pierce County Prosecutor Mark Lindquist could not withhold calls and texts made from his personal cellphone from a public records request. The state’s Public Records Act does not distinguish between digital or paper documents, or between personal and government-owned devices.
If public business is discussed, then regardless of what technology was used, the public has a right to view that public record.
In 2010, the state Supreme Court ruled that officials in the City of Shoreline could not hide public information transmitted and stored on personal computers.
Several months ago, a King County Superior Court went further, ruling that two Bainbridge Island City Council members conducting business on home computers were subject to the same records retention requirements as a government entity. The court ordered digital forensic experts to investigate the officials’ private computers.
The goal is not to invade the privacy of public officials by using government business as a Trojan Horse to peer into their personal correspondence. But conversations about public business belongs to the people, regardless of how discomfiting that is to an individual.
Technology should be used to enhance government transparency, not make it less accessible to public scrutiny.
But public officials around the nation are trying to do the opposite, and meeting strong public and legal condemnation. Texting is just the latest method being tested by a small cadre of unscrupulous public officials to conduct public business in secret. The Mississippi Ethics Commission recently set a precedent for all public officials in that state by issuing an opinion that text messages about government business are public records.
In an op-ed article in the Seattle Times, former state auditor Brian Sonntag and former attorney general Rob McKenna wrote, “The right to public information transcends the technology used to create it.”
There is no good reason to use a personal device for government business except to hide information from the public, which is antithetical to the principle of a free and democratic society. If public officials don’t want to open their personal digital accounts to public view, they shouldn’t use them for public business.