Courts use a three-part test to determine if a record is a "public record." The document must be: A "writing," containing information "relating to the conduct of government" or the performance of any governmental or proprietary function, "prepared, owned, used, or retained" by an agency.1
A "public record" can be any writing "regardless of physical form or characteristics." RCW 42.17.020
(41). "Writing" is defined very broadly as: "…handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated." RCW 42.17.020
(48). An email is a "writing."
(2) Relating to the conduct of government.
To be a "public record," a document must relate to the "conduct of government or the performance of any governmental or proprietary function." RCW 42.17.020
(41). Almost all records held by an agency relate to the conduct of government; however, some do not. A purely personal record having absolutely no relation to the conduct of government is not a "public record." Even though a purely personal record might not be a "public record," a record of its existence might be. For example, a record showing the existence of a purely personal email sent by an agency employee on an agency computer would probably be a "public record," even if the contents of the email itself were not.2
(3) "Prepared, owned, used, or retained."
A "public record" is a record "prepared, owned, used, or retained" by an agency. RCW 42.17.020
A record can be "used" by an agency even if the agency does not actually possess the record. If an agency uses a record in its decision-making process it is a "public record."3 For example, if an agency considered technical specifications of a public works project and returned the specifications to the contractor in another state, the specifications would be a "public record" because the agency "used" the document in its decision-making process.4 The agency could be required to obtain the public record, unless doing so would be impossible. An agency cannot send its only copy of a record to a third party for the sole purpose of avoiding disclosure.5
Sometimes agency employees work on agency business from home computers. These home computer records (including email) were "used" by the agency and relate to the "conduct of government" so they are "public records." RCW 42.17.020
(41). However, the act does not authorize unbridled searches of agency property.6
If agency property is not subject to unbridled searches, then neither is the home computer of an agency employee. Yet, because the home computer documents relating to agency business are "public records," they are subject to disclosure (unless exempt). Agencies should instruct employees that all public records, regardless of where they were created, should eventually be stored on agency computers. Agencies should ask employees to keep agency-related documents on home computers in separate folders and to routinely blind carbon copy ("bcc") work emails back to the employee's agency email account. If the agency receives a request for records that are solely on employees' home computers, the agency should direct the employee to forward any responsive documents back to the agency, and the agency should process the request as it would if the records were on the agency's computers.
1Confederated Tribes of the Chehalis Reservation v. Johnson
, 135 Wn.2d 734, 748, 958 P.2d 260 (1998). For records held by the secretary of the senate or chief clerk of the house of representatives, a "public record" is a "legislative record" as defined in RCW 40.14.100
. RCW 42.17.020
2Tiberino v. Spokane County Prosecutor, 103 Wn. App. 680, 691, 13 P.3d 1104 (2000).
3Concerned Ratepayers v. Public Utility Dist. No. 1, 138 Wn.2d 950, 958-61, 983 P.2d 635 (1999).
5See Op. Att'y Gen. 11 (1989), at 4, n.2 ("We do not wish to encourage agencies to avoid the provisions of the public disclosure act by transferring public records to private parties. If a record otherwise meeting the statutory definition were transferred into private hands solely to prevent its public disclosure, we expect courts would take appropriate steps to require the agency to make disclosure or to sanction the responsible public officers.")
6See Hangartner v. City of Seattle, 151 Wn.2d 439, 448, 90 P.3d 26 (2004).
[Statutory Authority: 2005 c 483 § 4, RCW 42.17.348
. WSR 06-04-079, § 44-14-03001, filed 1/31/06, effective 3/3/06.]