RECEIVED by MSC 9/11/2018 12:11:36 PM - Michigan Courts · , 183 Wash 2d 863; 357 P3d 45 (2015) F . Journal/Sentinel, Inc v Sch Bd of Sch Dist of Shorewood, 186 Wis 2d 443; 521 NW2d

STATE OF MICHIGAN

IN THE SUPREME COURT SUSAN BISIO, S. Ct. Case No. 158240 Plaintiff-Appellant, COA Docket No. 335422 Lower Court Case No. 15-150462-CZ v. THE CITY OF THE VILLAGE OF CLARKSTON, Defendant-Appellee. ______________________________________________________________________________

APPELLEE’S APPENDIX INDEX

Appendix Description

A Joseph Luginski Deposition Transcript

B MCL 15.233

C Previous Version MCL 15.232, effective until June 17, 2018

D Current Version MCL 15.232

E Nissen v Pierce Co, 183 Wash 2d 863; 357 P3d 45 (2015)

F Journal/Sentinel, Inc v Sch Bd of Sch Dist of Shorewood, 186 Wis 2d 443; 521 NW2d 165 (1994)

G Wash Rev Code Ann 42.56.010

H Wis Stat Ann 19.32

I Wis Stat Ann 19.36

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APPENDIX "A"

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In The Matter Of:

Bisio vs.

The City of the Village of Clarkston

Joseph Luginski

July 26, 2016

6!J/~~~li~QgJS www.bienenstock.com

Bingham Farms/Southfield • Grand Rapids Ann Arbor• Detroit• Flint• Jackson• Lansing• Mt. Clemens• Saginaw

Original File LUGJNSKI_JOSEPH.txt

llifin-U-Script® with ~Vord Index

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Bisio vs. The City of the Village of Clarkston

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1 STATE OF MICHIGAN

2 CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

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5 SUSAN BISIO,

OAKLAND COUNTY

6 Plaintiff, 7 vs. Case No. 2015-150462-CZ

8 Hon. Leo Bowman

9 THE CITY OF THE

10 VILLAGE OF CLARKSTON,

11 Defendant.

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15 The Deposition of JOSEPH LUGINSKI, 16

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Taken at 40701 Woodward Avenue, Suite 105,

Bloomfield Hills, Michigan, Commencing at 2:31 p.m.,

Tuesday, July 26, 2016,

Before Gregory L. Traylor, CSR-3757.

1 APPEARANCES:

2

3 RICHARD D. BISIO

4 Kemp Klein Law Firm

5 201 West Big Beaver Road 6 Suite 600

7 Troy, Michigan 48084

8 (248) 740-5698

9 [email protected]

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Joseph Luginski July 26, 2016

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TABLE OF CONTENTS

Witness

JOSEPH LUGINSKI

EXAMINATION BYMR. BISIO

EXHIBITS

Exhibit

(Exhibits attached to transcript.)

DEPOSITION EXHIBIT 1





1 Bloomfield Hills, Michigan

2 Tuesday, July 26, 2016

3 2:31 p.m. 4

5 JOSEPH LUGINSKI,

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6 was thereupon called as a witness herein, and after

7 having first been duly sworn to testify to the

8 truth, the whole truth and nothing but the truth,

9 was examined and testified as follows:

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Appearing on behalf of the Plaintiff. 10 EXAMINATION

',f•.

JAMES E. TAMM

O'Connor, DeGrazia, Tamm & 0 1 Connor, P.C. 40701 Woodward Avenue

Suite 105

Bloomfield Hills, Michigan 48304

(248) 433-2000

[email protected]

Appearing on behalf of the Defendant.

ALSO PRESENT:

Susan Bisio

11 BY MR. BISIO: 12 Q. Would you state your name, please? 13 A. Joe Luginski. 14 Q. And is Mr. Tamm here representing you individually as 15 well as representing the city?

16 A. That's -- I don't know the answer. We didn't -- yes, 17 I guess.

18 Q. Okay. And you are the Mayor of the City of the

19 Village of Clarkston, correct? 2 o A. Correct. 21 Q. When were you elected as mayor? 22 A. The first time? 23 Q. Yes.

24 A. It would have been November of 2010. 25 Q. Have you served continuously as mayor of the city

Bienenstock Court Reporting & Video (1) Pages 1 - 4 Ph: 248.644.8888 Toll Free: 888.644.8080

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1 since 2010? 2 A. Yes.

3 Q. You are aware that Thomas Ryan is the city attorney 4 for the city, correct?

5 A. Yes.

6 Q. Have you had occasion to have dealings with Mr. Ryan 7 in your capacity as mayor?

8 A. Sure.

9 Q. And have you had occasion to ask him for records or 10 documents from his files regarding city business? 11 A. I have not.

12 Q. Okay. Has he ever refused to give you a record 13 regarding city business?

14 A. No. 15 Q. Are you aware of any specific terms of Mr. Ryan's 16 employment as city attorney? 17 A. No. 18 Q. Are you aware of any provisions regarding records in 19 his possession regarding city business, like who owns 20 the records, who has access to them, anything of that 21 nature? 22 A. No, I do not. 23 Q. Are you aware of any retention or destruction policies 24 regarding records that Mr. Ryan has regarding city 25 business?

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1 A. No, I do not.

2 Q. Let me give you a hypothetical, 148 North Main, Curt 3 Catallo wants to convert the muffler shop into a 4 coffee shop. There's some questions about storm water 5 runoff and how that's going to affect Plymouth 6 contamination beneath the ground because that was a 7 former gas station. Mr. Ryan sends a letter to Neil 8 Wallace who's Curt's lawyer saying you're going to 9 need to do A or you're going to need to do B to deal

10 with this runoff question. Curt calls you up and says 11 your lawyer just sent my lawyer a letter, he's asking 12 us to do stuff that we never agreed to, I want you to 13 get involved. You hang up the phone, you call Mr. 14 Ryan and say Curt just called me about some letter 15 that you sent, can you send me a copy of that letter, 16 would Mr. Ryan send you that letter? 17 MR. TAMM: Objection to form and 18 foundation. It's compound. You can answer if you 19 can.

20 A. Yeah, I mean, I, I, I don't know. I mean, I never had 21 occasion to ask Mr. Ryan that so, I mean, I guess I 22 don't know if he would or if be wouldn't. I just 23 never have bad that be the situation. 24 BY MR. BISIO: 25 Q. So you've never had the situation where you've tried

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to get any kind of records from Mr. Ryan; is that right?

A. No, I have not.

Q. Do you know what this case is about? A. To be honest with you not exactly, no.

Q. As I understand it it's about whether the city

attorney can keep a separate private file with

correspondence and emails regarding his conducting of city business that is not subject to the Freedom of

Information Act so would you agree that that's proper?

MR. TAMM: Objection to the form, it calls for a legal conclusion. He's not a lawyer.

BY MR. BISIO: Q. Can you answer the question, please.

MR. TAMM: Ifyouknow.

A. Yeah, I don't know, I don't know, I don't know the answer.

BY MR. BISIO: Q. So you don't know if Mr. Ryan is authorized by anyone

in the city to keep private files on city business that nobody else can see?

A. Yeah, I do not know the answer to that.

MR. BISIO: I'm going to mark a series of invoices.

MR. TAMM: Starting with I?

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MR. BISIO: Yes.

MARKED FOR IDENTIFICATION

DEPOSITION EXHIBITS 1-5 2:40 p.m.

BY MR. BISIO: Q. I'm handing you what we have had marked as Exhibits I

through 5. These are invoices from Thomas J. Ryan,

P.C. to the City of the Village of Clarkston which the

city has admitted are invoices that were sent by Ryan

to the city, do you generally recognize what these are?

A. Um-hum, yes, I'm familiar with Tom's invoices.

Q. And these are generally included in the Consent Agenda

for the City Council meetings; is that correct? A. Um-hum, correct.

Q. And when the City Council votes on the Consent Agenda

voting to accept the Consent Agenda part of that is to approve the payment of invoices like this?

A. Correct.

Q. Okay. Is it fair to say that all of the items on

these particular invoices are for work that Mr. Ryan

does for the city?

A. Yeah, I would, I mean, yes, I would think that's

probably a fair statement.

Q. Somebody reviews these before they go into the Consent


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l Judgment? 2 MR. TAMM: Objection. 3 BY MR. BISIO: 4 Q. Consent Agenda; isn1t that correct? 5 MR. TAMM: Objection, form aod foundation. 6 If you know. 7 A. Yeah, I mean, I'm not going to say I know 100 percent, 8 but the city manager should be reviewing the invoices 9 prior to putting them into the council packet. That

10 would be the way it would be done. 11 BY MR. BISIO: 12 Q. If you look at Exhibit 1 there's a haodwritten marking 13 up at the top, do you recognize what that is? 14 A. You mean this, this thing? 15 Q. Yeah. 16 A. No, I have no idea what that is. 17 Q. Do you know if that's the city manager1s initials or 18 checking, check box or something of that nature 19 approving this invoice? 20 A. I honestly don't know. I honestly don't. 21 Q. Okay. If you look at Exhibit 2 on the bottom of the 22 first page there's a similar handwritten marking? 23 A. Um-hum, yeah, I do see that. 24 Q. Do you know what that is? 25 A. No, I don't.

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1 Q. And Exhibit 3 up at the top across from April 2, 2015 2 there's a similar marking? 3 A. Yeah, I see that. 4 Q. Do you know what that is? 5 A. No. 6 Q. Did you say you --7 A. I do not, no. 8 Q. You do not, okay. 9 A. But it looks, I mean, just this one on Exhibit 3 looks

10 like, I mean, they're all pretty scribbled, but it 11 looks like CW maybe. I don't know who CW, what CW 12 would stand for, but that's what it looks like to me, 13 do you see that? 14 Q. Yes. ls there aoybody in the city office with the 15 initials CW? 16 A. I know Carol is not, Carol Eberhardt is CE. Who was 17 that -- our treasurer was Sandy, that was an "S", 18 clerk is Sandra, Jennifer is an ordinance officer and 19 I'm losing her name that sits up in the front. 20 Q. Um-hum. 21 A. You know, the receptionist person -- Marcy, yeah, so I 22 don't know anybody with CW. 23 Q. Okay. Exhibit 5 up at the top there is a similar 24 marking there, do you recognize that? 25 A. I don't, oh, on 5? Yeah, well, no, I don't recognize

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it other than it looks similar to the other ones.

Q. Okay. On Exhibit 4 on the very last page there's a similar marking?

A. Okay. Q. Do you recognize that? A. No, I don't.

Q. Is it correct to say that when these types of invoices are on the Consent Agenda anyone on the council can raise a question about whether the invoice should be paid?

A. Um-hum, it's open to comment and questions at that time, yes.

Q. And so if the City Council votes to approve payment of the invoices then that means no one has raised any objections or if they have the objections have been resolved?

A. Correct.

Q. And is the work that Mr. Ryao does that's set out in these types of invoices work involving the city1s business?

21 A. Yes. 22 Q. And he does that work in his capacity as city 23 attorney, correct? 24 A. Yes. 25 Q. And to your knowledge has the city paid each of these

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1 invoices? 2 A. I, I would imagine the answer would be yes seeing that 3 these go back to -- when does it go back to -- last 4 year so I'm assuming the answer is, yes, that they've 5 all been paid. 6 Q. Okay. Let's look at Exhibit 1 the second page in the 7 entry for 1/30/2015, the second item on there involves 8 11correspondence from Neil Wallace, re: water table, 9 re: 148 North Main," is that something involving city

10 business? 11 A. Yes, I'm sure it is. 12 Q. And would you get a copy of that item if you asked Mr. 13 Ryan for it? 14 MR. TAMM: Objection to form and 15 foundation. 16 BY MR. BISIO: 17 Q. Can you answer the question, please? 18 A. Could you repeat the question? I'm sorry. 19 MR. BISIO: Would you read the question 20 back, please. 21 (The following record was 22 read by the reporter at 2:41 p.m.: 23 "QUESTION: And would you get a copy of 24 that item if you asked Mr. Ryan for it?") 25 A. I've never had a, had a reason or a situation come up


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1 that we've asked, I've asked Mr. Ryan for that so I, I 2 guess I don't know the answer.

3 BY MR. BISIO: 4 Q. This billing for that item is something that Mr. Ryan 5 billed the ci1y for in his capaci1y as ci1y attorney;

6 isn't that correct?

7 A. I would think so, yes.

8 Q. Okay. And are you aware of any reason why that would

9 be a confidential document? 10 MR. TAMM: Objection, form and foundation.

11 A. I don't know the answer to that, no. 12 BY MR. BISIO: 13 Q. Do you know if it involves trade secrets or commercial 14 or financial information?

15 A. I, I don't know the answer.

16 Q. Are you aware of any promise the city made to Neil

17 Wallace or anyone else that that would be kept

18 confidential?

19 A. Don't know. To my knowledge I do not know the answer 20 to that. 21 Q. Did you authorize any official promise of

22 confidentiality for that document?

23 A. No. 24 Q. I'm going to be going through all of the 18 records 25 that are at issue in this case and I'm going to have

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1 the same questions, but, I mean, let me see ifl can 2 shorten that up and ask you in general have you ever

3 authorized as mayor a promise of confidentiality for 4 any documents that the city receives or sends?

5 A. No. 6 MR. TAMM: Objection, form, foundation, 7 relevance.

8 A. No. 9 BY MR. BISIO:

10 Q. And are you aware of any description of confidential 11 information filed in the city offices regarding 12 documents that the city has made a promise of 13 confidentiality for?

14 A. No, I have not.

15 Q. You're the highest ranking elected official in the

16 city; is that correct?

17 A. Correct.

18 Q. Are you aware if the city manager has ever made an

19 official promise of confidentiality for any documents

20 in the ci1y?

21 A. I am not aware of anything like that.

22 Q. And this particular document is with regard to 148

23 North Main, I'm going to ask you a few questions about

24 that proper1y and about the issues that came up

25 regarding development of that proper1y as a coffee

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shop. One of the concerns was the handling of storm

water runoff; is that correct?

A. Um-hum, yes.

Q. And that was a concern because there might be an

effect on a plume of contaminated water running under

the site; is that correct?

A. To the best of my knowledge, yes. Q. The property used to be a gas station at some time in the past, correct?

A. Correct.

Q. And there was some type of contamination from the gas station operations, correct?

MR. TAMM: Objection to the form and

foundation.

A. I believe that's correct.

BY MR. BISIO: Q. Okay. And that was a question that was subject to

some public interest, correct?

A. Correct.

Q. There were newspaper articles about it? A. Yes. Q. Clarkston News? I don't know if it was in any other

newspapers, but is that --A. Yes, they, they were in the Clarkston News. I don't

know if there were any other. I don't get the

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articles.

Q. There were letters to the editor about it?

A. That's --

MR. TAMM: Objection to form and

foundation. A. I mean, to my knowledge, yes, there were letters to

the editor. BY MR. BISIO:

Q. Are you aware of any complaints or inquiries to the

city about those issues about possible water contamination?

A. Yeah, there was, well, I don't know that they were

complaints, but certainly people had questions about it, residents had questions about it.

Q. And were there emails to city officials about it?

A. From residents?

Q. Yes.

A. I don't remember, to be honest with you I don't

remember.

Q. Okay. Were there comments or questions about it at

City Council meetings?

A. There were.

Q. And at more than one City Council meeting, correct?

A. Correct.


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1 Q. Okay. Let's go to Exhibit 2, the first entry for

2 F ebrnary 4th, 2015. This involves, "correspondence 3 from John Cecil at HRC, re: having developer provide 4 correspondence from MDEQ, re: any impacts to the

5 existing contamination plume; NPDES permit waiver is 6 fine, re: 148 North Main Street,11 is that something 7 that relates to city business?

8 A. I, I would say, yes, I would say it would. 9 Q. And that would be city business that Mr. Ryan was

10 conducting in his capacity as city attorney, correct? 11 A. Correct.

12 Q. To your knowledge does that involve any trade secrets 13 or commercial or financial information? 14 A. Not to my knowledge. 15 Q. Let's look at the second item under 2/4/2015, "Review 16 correspondence from Neil Wal lace, re: steps and 17 walkway are not shoveled," do you know what steps and 18 walkway that refers to?

19 A. I do not. 20 Q. Are you aware there's a pathway between Neil Wallace's 21 building on the one side and the building to the south 22 of that that has concrete steps going down from Main 23 Street to the parking lot?

24 A. Yes, I am. I do know that particular path. 25 Q. Okay. And do you know who owns that?

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1 A. I do not. 2 Q. Do you know if the city is responsible for clearing 3 snow from that?

4 A. I don't know who owns it so I don't know the, you 5 know, depending on who owns it so I would say that I 6 don't know.

7 Q. Okay. In any event, did this correspondence involve 8 city business?

9 A. I mean, it, it would appear based on this, yes. 10 Q. Okay. And the work that Mr. Ryan did regarding this 11 particular item was done in 'his capacity as city

12 attorney, correct?

13 A. I'm sorry, correct, yes. 14 Q. You have to answer audibly.

15 A. I know, I'm sorry. 16 Q. Okay. Let's go to page 3. 17 A. The same --18 Q. The same Exhibit 2. Under 2/23/2015, the fourth item 19 involves correspondence from Neil Wallace regarding, 20 "response to Gary Tressel1s email regarding approval 21 ofMDEQ; data provided that this will not affect the 22 plume; Conditional Rezoning Agreement, re: 148 North 23 Main Street," is that a matter involving city 24 business? 25 A. Yes.

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Q. And was Mr. Ryan, Mr. Ryan's work on this item something that he did in his capacity as city

attorney?

MR. TAMM: Mr. Bisio, I'll stipulate that

all of these entries were done on city business and

with regard to Mr. Ryan in his capacity as city

attorney if that will move things along.

MR. BISIO: That certainly will move things

along because you refused to admit that in response to

a request for admission. Will you agree to amend your

requests for admission and withdraw the objections you

had to those questions and admit that formally in a

response to a request for admission? MR. TAMM: No.

MR. BISIO: Why not?

MR. TAMM: I don't have to explain myself

to you, Mr. Bisio. I've made my request for

admissions. You chose to take this deposition.

MR. BISIO: I chose to take this deposition

because the city has not properly responded to other

discovery requests so are you stipulating now on

behalf of the city that every entry in all five of

these exhibits involves a matter of city business and

a matter on which Mr. Ryan was conducting city

business in his capacity as city attorney?

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MR. TAMM: I expect that he was acting in

his capacity as city attorney because he billed the

city for them and it appears from the responses that

Mr. Luginski has given that these relate to city business.

MR. BISIO: You didn't answer the question clearly, though. You said you expect that.

MR. TAMM: Yes.

MR. BISIO: But are you stipulating to that as a fact?

MR. TAMM: I will stipulate for the purpose

of this deposition that that's the case.

MR. BISIO: Just for the purpose of this

deposition?

MR. TAMM: That's all we're doing right now, yes, sir.

MR. BISIO: So you will not stipulate to

that for the purpose of this case?

MR. TAMM: I've stipulated to it. I said

on the record that I stipulate so that we can move

along in this deposition that these entries were made

by Mr. Ryan and charged for as in his capacity as the city attorney.

MR. BISIO: But you're stipulation is

limited to this deposition; is that correct?


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1 MR. TAMM: I've made my stipulation and if 2 you, if you think it's in some way defective we can

3 talk about it, but I'm not going to have a colloquy on 4 the record about it.

5 MR. BISIO: Okay. You want to go off the

6 record?

7 MR. TAMM: Sure.

8 MR. BISIO: Let's go off the record then.

9 (Off the record at 2:57 p.m.)

10 (Back on the record at 3:05 p.m.)

11 MR. BISIO: While we were off the record 12 :Mr. Tamm and I had a discussion about a potential 13 stipulation that he offered and we were unable to 14 agree to a stipulation that would satisfy my concerns 15 about identifying these documents regarding whether 16 they are documents regarding city business that the 17 city attorney sent or received in his capacity as city 18 attorney.

19 MR. TAMM: Well, I think that Mr. 20 Luginski's testified what he1s testified to and I 21 don't think his answers are going to change with 22 regard to anything that's in the bills Exhibits I 23 through 3 based on his review of this; is that fair, 24 Mr. Luginski? 25 THE WITNESS: That's fair.

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1 MR. TAMM: So if you want to ask more

2 questions you can ask more questions, but I think that 3 based on the stipulation I offered and his testimony 4 the answers you receive are not going to be any 5 different if you go through line item by line item on 6 every one of these exhibits.

7 MR. BISIO: I'm still unclear as to what

8 you1re offering to stipulate to and it doesn1t satisfy 9 me that you make some general statement about Exhibits

10 1 through 3 when we have five exhibits here in front 11 ofus. 12 MR. TAMM: No, I'm sorry, I meant I through 13 5. !fl -- I misspoke. I was looking at I through 14 3. All the of exhibits that you've offered which are 15 invoices from Mr. Ryan1s office he's already indicated 16 his testimony isn't going to change with regard to any 17 of the items that he's already answered and you've 18 gone through two of them. 19 MR. BISIO: Let me see if I can understand 20 that.

21 BY MR. BISIO: 22 Q. Mr. Luginski, are you saying that every single entry 23 on every one of these five invoices is related to, 24 involving city business?

25 A. Yeah, I would, I would venture to say that that is an

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accurate statement Otherwise, I don't know why we

would have been billed for them to begin with. Q. Well, when you say you "would venture to say that"

that's a little equivocal and it's not clear to me

that you are acknowledging that all of these entries

are related to city business? A. Yeah, I, I would acknowledge that. Q. And that all of these entries involve Mr. Ryan's work

in his capacity as city attorney conducting city

business; is that correct?

A. Correct. Q. Okay. You say that not having looked at all of the

entries on these documents, though, do you want some

time to look through them and confirm what you've just testified to?

A. Sure, I can. Are you done with Exhibit 2?

Q. The last question I had on Exhibit 2 was for the

fourth entry on February 23rd, 2015, I don't remember

if! asked you the specific questions about that, but that is the last item on Exhibit 2 that I was

concerned with.

A. Where it says "review council packet"? Q. No.

A. No. Q. It's under 2/23/2015, the fourth item, "Review

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correspondence from Neil Wallace, re: response to Gary

Tressel's email regarding approval ofMDEQ; data

provided that this will not affect the plume;

Conditional Rezoning Agreement, re: 148 North Main Street."

A. Yes, I, I would agree to that. Q. Okay. You want to look through --A. Sure.

Q. -- all of the entries on Exhibits 3, 4 and 5 and --A. Okay. Q. -- confirm that these are all regarding city business

that the city attorney was conducting in the course of his responsibilities as city attorney?

A. Sure, give me a couple of minutes to look at them. Q. Sure. Go ahead.

MR. BISIO: While he's doing that could I

get a glass of water?

MR. TAMM: Certainly. Off the record.

(Off the record at 3:10 p.m.)

(Back on the record at 3:13 p.m.) 21 A. So after reviewing the last three exhibits I would 22 agree that the or they all have to do with city 23 business. 24 BY MR. BISIO: 25 Q. And that they have to do with the city attorney's


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1 conducting city business in his capacity as city 2 attorney, correct? 3 A. I would agree.

4 Q. And that was with respect to Exhibits 3, 4 and 5, 5 correct? 6 A. Correct.

7 Q. Okay. One of the subject matters of some of those was 8 the property at Main and Waldon and involved the 9 property owner's cutting down the trees on that

10 property, do you recall that? 11 A. Ido.

12 Q. And was that a subject of some public interest? 13 A. Itwas.

14 Q. And were there newspaper articles about that? 15 A. There was. 16 Q. Letters to the editor? 1 7 A. Correct. 18 Q. Were there communications to the city about what 19 happened there?

20 A. I, I don't recall. There may have been, I don't 21 recall any specific communications being email, 22 verbal, at meetings. 23 Q. Okay.

24 A. At meetings there was definitely some -- at council 25 meetings there was discussion, but I can't remember if

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1 I received any or if anybody received any emails 2 specifically to it. 3 Q. Okay. 4 A. But, yes. 5 Q. So there were comments and questions about that at 6 City Council meetings? 7 A. Correct. 8 Q. And in more than one City Council meeting, correct? 9 A. Correct.

10 Q. In your view is there anything in these records that 11 are referred to in Mr. Ryan's invoices that should not 12 be disclosed to the public? 13 MR. TAMM: Objection to form and 14 foundation. Calls for a legal conclusion.

15 A. I guess I, I don't know the answer to that. I mean, I 16 don't know what everything is that he has as far as 17 backup information to some of these individual billing 18 items so I don't, I don't know how to answer that. I 19 don't know the answer. 2 o BY MR. BISIO:

21 Q. Okay. What did you do to prepare for this deposition? 22 A. Nothing really. I had a 15 minute conversation with 23 Mr. Tamm. 24 Q. Did you discuss your deposition with anybody besides 25 Mr. Tanun?


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1 A. No. 2 Q. Did you review any documents beforehand? 3 A. I went back into my email to see if I had any emails 4 that would, you know, to this effect, but I couldn't 5 find any so that was all I did.

6 Q. When you say emails "to this effect" what kind of 7 emails were you looking for?

8 A. Things that would have been specific to the emails 9 that were talked about and, you know, copied or there

10 was a list of emails that bad to do with the, the 15 11 or 16 items on here and that you were questioning. 12 Q. Um-hum.

13 A. And I looked to see if I was copied or bad any of 14 those emails on those dates and I did not. 15 Q. Okay.

16 A. I didn't know ifl was copied on any of them and I 17 didn't see any. 18 Q. Okay.

19 MR. BISIO: Let's go off. 20 (Off the record at 3:15 p.m.) 21 (Back on the record at 3:22 p.m.) 22 MR. BISIO: I don't have any more 2 3 questions.

24 MR. TAMM: I have no questions. Thank 25 you.

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(The deposition concluded at 3:22 p.m.

Signature of the witness was not requested by counsel for the respective parties hereto.)

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CERTIFICATE OF NOTARY STATE OF MICHIGAN

ss COUNTY OF WAYNE

I, GREGORY L. TRAYLOR, certify that this

deposition was taken before me on the date

hereinbefore set forth; that the foregoing questions

and answers were recorded by me stenographically and

reduced to computer transcription; that this is a

true, full and correct transcript of my stenographic

12 notes so taken; and that I am not related to, nor of

13 counsel to either party nor interested in the event of

14 this cause. 15

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GREGORY L. TRAYLOR, CSR-3757

Notary Public, Wayne County, Michigan

My Commission expires: November 29, 2016

Bienenstock Court Reporting & Video Ph: 248.644.8888 Toll Free: 888.644.8080


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EXAMINATION (2) 3:6;4:10

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26:16 26:15 9:19;11:9 February (2) invoices (14)

17:2;23:18 H 7:24;8:7,9, 12, 18,21; few (1) 9:8; 11 :7, 14, 19; 12: 1;

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7:7 handling (1) 17:12;18:7;23:8 filed (1) 15:1 involved (2)

14:11 handwritten (2) 6:13;25:8 files (2) 9:12,22 involves (5)

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storm (2) 4:8,8,8 whole (1) 6:4;15:1 Tuesday (1) 4:8

Street (4) 4:2 who's (1) 17:6,23;18:23;24:5 two (1) 6:8

stuff (1) 22:18 withdraw (1) 6:12 type (1) 19:11

subject (4) 15: 11 Witness (4) 7:9;15:17;25:7, 12 types (2) 3:3;4:6;2 l :25;28:2

Sure (7) 11:7,19 work (7) 5:8;12:11;21:7; 8:21;11 :18,19,22; 23:16;24:8,14,15 u 18: 10;19:1;23:8

sworn (1) 4:7 Um-hum (7) y

8: 12, 15;9:23; I 0:20; T 11:11;15:3;27:12 year (1)

unable (1) 12:4 TABLE (2) 21:13

3:1;12:8 unclear (1)


1 (9)


1

3: 14;7:25;8:6;9:12; 12:6;21:22;22:10, 12, 13

1/30/2015 (1) 12:7

100 (1) 9:7

148 (6) 6:2; 12:9; 14:22; 17:6; 18:22;24:4

15 (2) 26:22;27:10

1-5(1) 8:3

16 (1) 27:11

18 (1) 13:24

2

2 (8) 3: 15;9:2 l; 10: I; 17: I; 18:18;23:16,17,20

2/23/2015 (2) 18:18;23:25

2/4/2015 (1) 17:15

2:31 (1) 4:3

2:40 (1) 8:4

2:41 (1) 12:22

2:57 (1) 21:9

2010 (2) 4:24;5:l

2015 (3) 10:1;17:2;23: 18

2016 (1) 4:2

23rd (1) 23:18

26 (1) 4:2

3

3 (9) 3: 16; 10: 1,9; 18: 16; 21 :23;22: I 0, l 4;24:9; 25:4

3:05 (1) 21:10

3:10 (1) 24:19

3:13 (1) 24:20

(4) right - 3:13

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3:15 (1) 27:20

3:22 (2) 27:21;28:l

4

4 (5) 3:7,17;11:2;24:9; 25:4

4th (1) 17:2

5

5 (7) 3: 18;8:7; 10:23,25; 22:13;24:9;25:4

8

8 (5) 3:14,15,16,17, 18

,\'I in-U-Sc ri pt'il' Bienenstock Court Reporting & Video Ph: 248.644.8888 Toll Free: 888.644.8080


(5) 3:15- 8

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APPENDIX "B"

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15.233. Inspection, copying and receipt of public records, right and ... , Ml ST 15.233

Michigan Compiled Laws Annotated Chapter 15. Public Officers and Employees (Refs & Annas)

Freedom of Information Act (Refs & Annas)

M.C.L.A. 15.233

15.233. Inspection, copying and receipt of public records, right and opportunity; subscriptions; custodian

Currentness

Sec. 3. (!) Except as expressly provided in section 13, 1 upon providing a public body's FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of the requested public record of the public body. A person has a right to subscribe to future issuances of public records that are created, issued, or disseminated on a regular basis. A subscription shall be

valid for up to 6 months, at the request of the subscriber. and shall be renewable. An employee of a public body who receives a request for a public record shall promptly forward that request to the freedom of information act coordinator.

(2) A freedom of information act coordinator shall keep a copy of all written requests for public records on file for no less than I year.

(3) A public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records, and shall furnish reasonable facilities for making memoranda or abstracts from its public records during the

usual business hours. A public body may make reasonable rules necessary to protect its public records and to prevent

excessive and unreasonable interference with the discharge of its functions. A public body shall protect public records from loss, unauthorized alteration, mutilation, or destruction.

( 4) This act does not require a public body to make a compilation, summary, or report of information, except as required

in section 11. 2

(5) This act does not require a public body to create a new public record, except as required in section 11, and to the

extent required by this act for the furnishing of copies, or edited copies pursuant to section 14(1), 3 of an already existing public record.

(6) The custodian of a public record shall, upon written request, furnish a requesting person a certified copy of a public record.

Credits Amended by P.A.1996, No. 553, § I, Eff. March 31, 1997.

Notes of Decisions (106)

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15.233. Inspection, copying and receipt of public records, right and ... , Ml ST 15.233

Footnotes M.C.L.A. § 15.243.

2 M.C.L.A. § 15.241.

3 M.C.L.A. § 15.244.

M. C. L.A. 15.233, MI ST 15.233

The statutes are current through P.A.2018, No. 222, also 227-336 of the 2018 Regular Session, 99th Michigan Legislature.

End of Docmn('nl '<'· 2013 Thomson Reuters. No claim to original U.S. Government Worh.

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APPENDIX "C"

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15.232. Definitions, Ml ST 15.232

Michigan Compiled Laws Annotated

Chapter 15. Public Officers and Employees (Refs & Annos) Freedom oflnformation Act (Refs & An nos)

This section has been npdated. Click here for tbe updated version.

M.C.L.A. 15.232

15.232. Definitions

Effective: [See Text Amendments] to June 16, 2018

<Section effective until June 17, 2018. See, also, section 15.232 effective June 17, 2018.>

Sec. 2. As used in this act:

(a) "Field name" means the label or identification of an element of a computer data base that contains a specific item

of information, and includes but is not limited to a subject heading such as a column header, data dictionary, or record layout.

(b) "FOIA coordinator" means either of the following:

(i) An individual who is a public body.

(i,) An individual designated by a public body in accordance with section 6 1 to accept and process requests for public records under this act.

(c) "Person" means an individual, corporation, limited liability company, partnership, firm, organization, association,

governmental entity, or other legal entity. Person does not include an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility.

( d) "Public body" means any of the following:

(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

(ii) An agency, board, commission, or council in the legislative branch of the state government.

(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.

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(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority.

(v) The judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.

(e) "Public record" means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Public record does not include computer software. This act separates public records into the following 2 classes:

(i) Those that are exempt from disclosure under section 13. 2

(ii) All public records that are not exempt from disclosure under section 13 and which are subject to disclosure under this act.

(f) "Software" means a set of statements or instructions that when incorporated in a machine usable medium is capable

of causing a machine or device having information processing capabilities to indicate, perform, or achieve a particular function, task, or result. Software does not include computer-stored information or data, or a field name if disclosure of that field name does not violate a software license.

(g) "Unusual circumstances" means any 1 or a combination of the following, but only to the extent necessary for the proper processing of a request:

(i) The need to search for, collect, or appropriately examine or review a voluminous amount of separate and distinct public records pursuant to a single request.

(ii) The need to collect the requested public records from numerous field offices, facilities, or other establishments which are located apart from the particular office receiving or processing the request.

(h) "Writing" means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps,

magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.

(i) "Written request" means a writing that asks for information, and includes a writing transmitted by facsimile, electronic mail, or other electronic means.

Credits Amended by P.A.1994, No. 131, § I, Imd. Eff. May 19, 1994; P.A.1996, No. 553, § 1, Eff. March 31, 1997.

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Footnotes M.C.L.A § 15.236.

2 M.C.L.A. § 15.243.

M. C. L.A. 15.232, MI ST 15.232

The statutes are current through P.A.2018, No. 222, also 227-336 of the 2018 Regular Session, 99th Michigan Legislature.

End of Document 'S 2013 Thomson Reuters. >To claim to original L'..S. Government iNorks

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APPENDIX "D"

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Michigan Compiled Laws Annotated Chapter 15. Public Officers and Employees (Refs & Annas)

Freedom of Information Act (Refs & Annas)

Sec. 2. As used in this act:

M.C.L.A. 15.232

15.232. Definitions

Effective: June 17, 2018 Currentness

(a) "Cybersecurity assessment" means an investigation undertaken by a person, governmental body, or other entity to identify vulnerabilities in cybersecurity plans.

(b) "Cybersecurity incident" includes, but is not limited to, a computer network intrusion or attempted intrusion; a breach of primary computer network controls; unauthorized access to programs, data, or information contained in a computer system; or actions by a third party that materially affect component performance or, because of impact to component systems, prevent normal computer system activities.

(c) "Cybersecurity plan" includes, but is not limited to, information about a person1s information systems, network security, encryption, network mapping, access control, passwords, authentication practices, computer hardware or software, or response to cybersecurity incidents.

( d) "Cybersecurity vulnerability" means a deficiency within computer hardware or software, or within a computer network or information system, that could be exploited by unauthorized parties for use against an individual computer user or a computer network or information system.

(e) "Field name" means the label or identification of an element of a computer database that contains a specific item of information, and includes but is not limited to a subject heading such as a column header, data dictionary, or record layout.

(!) "FOIA coordinator" means either of the following:

(1) An individual who is a public body.

(ii) An individual designated by a public body in accordance with section 6 1 to accept and process requests for public records under this act.

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(g) "Person" means an individual, corporation, limited liability company, partnership, firm, organization, association,

governmental entity, or other legal entity. Person does not include an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility.

(h) "Public body" means any of the following:

(i) A state officer, employee, agency, department, division, bureau, board,.commission, council, authority, or other body

in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

(ii) An agency, board, commission, or council in the legislative branch of the state government.

(iiz) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.

(iv) Any other body that is created by state or local authority or is primarily funded by or through state or local authority,

except that the judiciary, including the office of the county clerk and its employees when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.

(i) "Public record" means a writing prepared, owned, used, in the possession of, or retained by a public body in the

performance of an official function, from the time it is created. Public record does not include computer software. This act separates public records into the following 2 classes:

(i) Those that are exempt from disclosure under section 13. 2

(iz) All public records that are not exempt from disclosure under section 13 and that are subject to disclosure under this act.

U) "Software" means a set of statements or instructions that when incorporated in a machine usable medium is capable

of causing a machine or device having information processing capabilities to indicate, perform, or achieve a particular function, task, or result. Software does not include computer-stored information or data, or a field name if disclosure of that field name does not violate a software license.

(k) "Unusual circumstances" means any 1 or a combination of the following, but only to the extent necessary for the proper processing of a request:

(i) The need to search for, collect, or appropriately examine or review a voluminous amount of separate and distinct public records pursuant to a single request.

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(ii) The need to collect the requested public records from numerous field offices, facilities, or other establishments which are located apart from the particular office receiving or processing the request.

([) "Writing" means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps,

magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums,

hard drives, solid state storage components, or other means of recording or retaining meaningful content.

(m) "Written request" means a writing that asks for information, and includes a writing transmitted by facsimile, electronic mail, or other electronic means.

Credits Amended by P.A.1994, No. 131, § I, Imd. Eff. May 19, 1994; P.A.1996, No. 553, § 1, Eff. March 31, 1997; P.A.2018, No. 68, Eff. June 17, 2018.


Footnotes M.CLA § 15.236.

2 M.C.L.A. § 15.243.

M. C. L.A. 15.232, MI ST 15.232 The statutes are current through P.A.2018, No. 222, also 227-336 of the 2018 Regular Session, 99th Michigan Legislature.

End of Document ,(,_', 2018 Thomson Reuters. J\;o claim to origmaJ U.S. Government Works.

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APPENDIX "E"

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Nissen v. Pierce County, 183 Wash.2d 863 (2015)

357 P.3d 45, 43 Media L. Rep. 3150

183 Wash.2d 863 Supreme Court of Washington,

En Banc.

Glenda NISSEN, an individual, Respondent,

v.

PIERCE COUNTY, a public agency, Pierce County

Prosecuting Attorney's Office, a public agency,

and Prosecutor Mark Lindquist, Petitioners.

No. 90875-3.

I Argued June 11, 2015.

I Decided Aug. 27, 2015.

Synopsis Background: Sheriffs detective brought action under Public Records Act (PRA) against county and county prosecutor's office, seeking disclosure of call logs from prosecutor's personal cellular telephone and text messages. The Superior Court, Thurston County, Christine A. Pomeroy, J., graoted defendants' motion to dismiss. Defendant appealed. The Court of Appeals, 183 Wash.App. 581, 333 P.3d 577, reversed and remanded. Defendants filed petitions for review.

Holdings: The Supreme Court, en bane, Yu, J., held that:

[l] record prepared, owned, used, or retained by agency employee in the scope of employment was "prepared, owned, used, or retained by a state or local agency," under PRA;

[2] records an agency employee prepares, owns, uses, or retains on a private cellular telephone within the scope of employment can be a "public record";

[3] call and text message logs prepared aod retained by telephone company with respect to county employee's private cellular telephone were not "public records" of the county;

[4] content of work-related text messages sent and received by county prosecutor were "public records," and

[5] public employees are responsible for self-segregating

private and public records contained on their private devices.

Affirmed and remanded with instructions.

Attorneys and Law Firms

**48 Mark Evans Lindquist, Pierce County Prose. Office, Daniel Ray Hamilton, Attorney at Law, Tacoma, WA, Philip Albert Talmadge, Talmadge/Fitzpatrick, Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, for Petitioners.

Michele Lynn Earl-Hubbard, Allied Law Group LLC, Seattle, WA, for Respondent.

**49 Anita Hunter, Washington Federation of State Employees, Olympia, WA, amicus counsel for Washington Federation of State Employees.

Martin S. Garfinkel, Schroeter Goldmark & Bender, Seattle, WA, amicus counsel for International Association of Fire Fighters.

Aimee Strand Iverson, WA Education Association, Federal Way, WA, amicus counsel for Washington Education Association.

Jeffrey Julius, Vick, Julius, McClure, P.S., Seattle, WA, amicus counsel for Washington Council of Police and Sheriffs.

Jeffrey Julius, Vick, Julius, McClure, P.S., Seattle, WA, amicus counsel for Washington State Patrol Troopers Association.

Scott R. Peters, Pierce County Prosecuting Attorney, Tacoma, WA, amicus counsel for Pierce County Prosecuting Attorneys Association.

Ramsey E. Ramerman, City of Everett, Everett, WA, · amicus counsel for Washington State Association of Municipal Attorneys.

Peter B. Gonick, Callie Anne Castillo, WA State Attorney General Office, Olympia, WA, amicus counsel for Attorney General of Washington.

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Nissen v. Pierce County, 183 Wash.2d 863 (2015) 357 P.3d 45,43 Media L. Rep. 3150 · · · ···-··········-···-· ........... ,. ........... - ........... ··•··· ··

Judith A. Endejan, Garvey Schubert Barer, Seattle, WA, amicus counsel for Washington COAiition for Open Government.

William John Crittenden, Patrick Denis Brown, Attorney at Law, Seattle, WA, amicus counsel for League of Women Voters of Washington.

Nancy Lynn Talner, Douglas B. Klunder, Attorney at Law, Seattle, WA, amicus counsel for Adu.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, amicus counsel for Washington Association of Prosecuting Attorneys.

Opinion

YU,J.

*869 ,r l Five years ago we concluded that the Public Records Act (PRA), chapter 42.56 RCW, applied to a record stored on a personal computer, recognizing that "[i]f government employees could circumvent the PRA by using their home computers for government business, the

PRA could be drastically undermined." O'Neill v. City of

Shoreline, 170 Wash.2d 138,150,240 P.3d 1149 (2010). Today we consider if the PRA similarly applies when a public employee uses a private cell phone to conduct government business. We hold that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.

BACKGROUND

,r 2 This case involves two requests for public records that

Glenda Nissen, a sheriffs detective, sent to Pierce County (County). Both requests asked for records related to Pierce County Prosecutor Mark Lindquist. One request stated:

Please produce any and all of Mark Lindquist's cellular telephone records for number 253-861-

[XXXX 1 J or any other cellular telephone he uses to conduct his business including text messages from August 2, 2011.

Clerk's Papers (CP) at 15. The other stated:

*870 The new public records request is for Mark Lindquist's cellular telephone records for number 253-

861-[XXXXJ for June 7, [2010]. I 2 l

Id. at 17 (second alteration in original). The telephone number identified in these requests is connected to Lindquist's private cell phone. There is no dispute that Lindquist personally bought the phone, personally pays for its monthly service, and sometimes uses it in the course of his job.

,r 3 In response to these requests, Lindquist obtained and provided the County with two types of records. The first, which the parties refer to as the "call log," is similar to an itemized statement customers might receive from their service provider each month. **50 It contains

information about the dates and times of calls made and received, the length of those calls, and the phone number of the incoming or outgoing call. Lindquist's service provider, Verizon Wireless, generated the call log and provided it to Lindquist at his request. He voluntarily produced it to the County.

,r 4 The second type of record reveals information about text messages Lindquist sent and received over two days

("text message log"). The text message log does not reveal the content of those messages. Instead, similar to the call log, it itemizes the date and time of each message and provides the telephone number of the corresponding

party. Lindquist also obtained the text message log from Verizon after receiving Nissen1s PRA requests and produced it to the County.

,r 5 The County reviewed the call and text message logs and disclosed partially redacted copies to Nissen. Accompanied by an exemption log, the redactions conceal

line items for calls and text messages that Lindquist selfdescribed as personal in nature. The remaining unredacted portions relate to calls and text messages that the County and *871 Lindquist admit might be work related. See

CP at 490 (Deel. of Mark Lindquist in Supp. of Mot. To Intervene & Join) ("I authorized the release of records of calls that were related to the conduct of government or the performance of any governmental or proprietary function."); Pierce County's Pet. for Review at 3 ("[T]he Prosecutor authorized the release of records of calls that

'may be work related.' "); Lindquist1s Pet. for Review at 10 ("[T]he Petitioner provided those communications

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that may be 'work related.' "). Thus nearly half of the text messages Lindquist sent or received and many of his

phone calls during the relevant period potentially related to his job as the elected prosecutor. The County did not produce the contents of any text message, however,

though copies of them exist on Verizon's servers. 3

'II 6 Dissatisfied with the County's disclosures, Nissen sued the County in Thurston County Superior Court. She sought an in camera review of Lindquist's text messages

and the call and text message logs to detennine if all of the information is a public record. Lindquist intervened and

moved for a temporary restraining order and preliminary injunction to enjoin further disclosure of records related to his cell phone. He argued that compelling him to disclose his text messages would violate the state and federal constitutions and was prohibited by state and federal statutes. CP at 502-18. That same day the County moved to dismiss Nissen's complaint under CR 12(b)(6). It argued the records at issue could not be public records as a matter oflaw, because they related to a personal cell phone rather than a county-issued one.

'II 7 The trial court consolidated the two motions for a hearing. After argument, the trial judge granted the County's CR 12(b)(6) motion, determining as a matter of law that records of private cell phone use can never be public records *872 under the PRA. The Court of Appeals reversed. Nissen v. Pierce County, 183 Wash.App. 581, 333 P.3d 577 (2014). Applying the PRA's definition of "public record," the Court of Appeals held that Lindquist's text messages were public records because he "prepared" them in his official capacity. Id. at 593-94, 333 P.3d 577 (citing RCW 42.56.010(3)). The court further held that the factual record was not sufficiently developed on the issue of whether the call logs also qualify as "public record[s]," noting that the issue turned on whether Lindquist used or retained the logs in his capacity as prosecuting attorney. Id. at 595, 333 P.3d 577.

'II 8 We granted the County's and Lindquist's petitions for review, Nissen v. Pierce County, 182 Wash.2d 1008, 343 P.3d 759 (2015), and now affirm in part and remand with further instructions.

**51 STANDARD OF REVIEW

[1] [2] [3] 'II 9 We review de novo a CR 12(b)(6) order dismissing a complaint. Dismissal is proper only if we conclude that "the plaintiff cannot prove 'any set of facts which would justify recovery.' " Kinney v. Cook, 159 Wash.2d 837, 842, 154 P.3d 206 (2007) (quoting Tenore v. AT & T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104 (1998)). Motions to dismiss are granted "only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Hoffer v. State, 110 Wash.2d 415, 420, 755 P.2d 781 (1988) ( quoting 5 CHARLES ALAN WRIGHT & AR THUR R. MILLER, FEDERAL PRACTICE§ 357, at 604 (1969)).

[4] ,i 10 Our standard of review in PRA cases is also de novo. Neigh. All. of Spokane County v. Spokane County, 172 Wash.2d 702, 715, 261 P.3d 119 (2011).

ANALYSIS

'II 11 Before turning to the questions this case presents, it is helpful to clarify the questions it does not. This case does *873 not involve a public employer seizing an employee's private cell phone to search for public records. It does not involve a records request for every piece of data on a smartphone. And it does not involve a

citizen suing a public employee for access to the employee's phone. Instead, this is an action against an agency for two types of records that, while potentially related to the agency's public business, are in the exclusive control

of the agency's employee. This case asks whether those records can nonetheless be "public records" the agency

must disclose and, if so, whether there are limits to how the agency may search for and review those records.

'II 12 With that in mind, we first interpret the PRA to determine if a record of government business conducted on a private cell phone is a "public record," as the

PRA defines the term. We then apply that definition to the specific records here---the call and text message logs and text messages. Finally, we address the mechanics of

searching for and obtaining public records held by or in the control of public employees. As explained below, we hold that text messages sent or received by Lindquist in his official capacity can be public records of the County, regardless of the public or private nature of the device used to create them; and we order Lindquist to

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obtain, segregate, and produce those public records to the County.

I. THE PRA REACHES EMPLOYEE-OWNED CELL PHONES WHEN USED FOR AGENCY BUSINESS

'I[ 13 Our analysis begins with the text of the PRA. By its plain language, the PRA applies "when an 'agency' is requested to disclose 'public records.' " Dawson v. Daly,

120 Wash.2d 782, 788, 845 P.2d 995 (1993). Because those are both defined terms, we must interpret the statutory definitions to decide if records of public business an employee conducts on his or her private cell phone are public records. *874 Senate Republican Campaign

Comm. v. Pub. Disclosure Comm'n, 133 Wash.2d 229,239, 943 P.2d 1358 (1997). The PRA defines "agency" very broadly as

all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasimunicipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.

RCW 42.56.010(1). This definition in tum affects what information is a "public record" since it is incorporated into the statutory definition of that term. Under the PRA, a "public record" is

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.

RCW 42.56.010(3) (emphasis added).

[5] 16] 'I[ 14 The definitions of "agency" and "public record" are each comprehensive **52 on their own and, when taken together, mean the PRA subjects "virtually any record related to the conduct of government" to

public disclosure. 4 O'Neill, 170 Wash.2d at 147,240 P.3d 1149. This broad construction is deliberate and meant to give the public access to information about every aspect of state and local government. See LAWS OF 1973, ch. 1, § 1 (11 ). As we so often summarize, the PRA "is a strongly worded mandate for broad disclosure of public records." Yakima Caunty v. Yakima Herald-Republic, 170 Wash.2d 775, 791, 246 P.3d 768 (2011) (quoting Soter v. Cowles

Publ'g Co., 162 Wash.2d 716, 731, 174 P.3d 60 (2007) (quoting Hearst Corp. v. Hoppe, 90 Wash.2d 123,127,580 P.2d 246 (1978))).

*875 A. Agency Employees Working within the Scope of Employment Create Public Records

'II 15 Despite that mandate, the County argues public employees can avoid the PRA simply by using a private cell phone, even if they use it for public business and even if the same information would be a public record had they

used a government-issued phone instead. 5 The County finds this large gap in the PRA by isolating the statute's definition of "agency," which does not expressly refer to individual employees as agencies. RCW 42.56.010(1). Since county employees like Lindquist are not literally a "county," the County argues its employees and the records they control are completely removed from the PRA's scope.

[7] 'I[ 16 While that reasoning may have superficial appeal, it misses the central question here. We cannot interpret statutory terms oblivious to the context in which they are used. Dep't of Ecology v. Campbell & Gwinn,

LLC, 146 Wash.2d I, 10-11, 43 P.3d 4 (2002). As this case does not ask if a public employee is an "agency" with independent obligations separate from those the PRA imposes on the employer, interpreting "agency" in isolation is unhelpful. Nissen's request was directed at the

County, not Lindquist. 6 Our task instead is to decide if records that a public employee generates while working for an agency are "public records" that the agency must disclose. Thus we must *876 interpret the statutory definitions of "agency" and "public record" together, keeping in mind the purpose those definitions are intended

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to further. See Hearst Corp., 90 Wash.2d at 128, 580 P.2d 246.

[its] physical form or characteristics." RCW 42.56.010(3). In O'Neill we held that a city official stored a public record on a private computer in her home by using the computer

[8) [9) ,r 17 One characteristic of a public record is that for city business, 170 Wash.2d at 150, 240 P.3d 1149, it is "prepared, owned, used, or retained by any state or

local agency." RCW 42.56.010(3). The County is correct that every agency the PRA identifies is a political body arising under law (e.g., a county). But those bodies lack an innate ability to prepare, own, use, or retain any record.

They instead act exclusively through their employees and other agents, and when an employee acts within the scope

of his or her employment, the employee's actions are tantamount to "the actions of the [body] itself." Houser

v. City of Redmond, 91 Wash.2d 36, 40, 586 P.2d 482 (1978) (as to cities); Hailey v. King County, 21 Wash.2d 53, 58, 149 P.2d 823 (1944) (as to counties). Integrating this basic common law concept into the PRA, a record that an agency employee prepares, owns, uses, or retains in the

scope of employment is necessarily a record "prepared, **53 owned, used, or retained by [ a] state or local

agency." RCW 42.56.010(3).

,r 18 That interpretation is the only logical one considering how agencies conduct business and carry out their obligations under the PRA. See Dawson, 120 Wash.2d at 789, 845 P.2d 995 (public records were "prepared by the prosecutor's office" because two employees created and compiled them). If the PRA did not capture records individual employees prepare, own, use, or retain in the course of their jobs, the public would be without information about much of the daily operation of government. Such a result would be an affront to the core policy underpinning the PRA-the public's right to a transparent government. That policy, itself embodied in the statutory text, guides our interpretation of the PRA. RCW 42.56.030; LAWS OF 1973, ch. 1, § 1(11); Hearst Corp., 90 Wash.2d at 128, 580 P.2d 246.

*877 B. The PRA Captures Work Product on Employee Cell Phones

which is consistent with the idea that employees can use their own property and still be within the scope of their employment. Dickinson v. Edwards, 105 Wash.2d 457, 467-68, 716 P.2d 814 (1986). There is no reason to treat cell phones differently. We hold that records an agency employee prepares, owns, uses, or retains on a private cell phone within the scope of employment can be a public record if they also meet the other requirements of RCW 42.56.010(3).

[13) ,r 20 Applying the PRA to employee cell phone use is not new. Though an issue of first impression in this court, many state and local agencies implementing the PRA already conclude that using a private cell phone to conduct public business can create a public record. Over the last several years, agencies have begun adopting policies about private cell phone use and advising employees of the agencies' obligation to preserve all public records. Just as examples:

"Employees utilizing cell phones for City business must not utilize written cell phone capabilities such as text messaging or email for City business unless such phone is synchronized with the City's computer system so that such electronic records can be maintained according to the State records retention requirements." *878 CITY OF PROSSER, PERSONNEL POLICY MANUAL 32 (2009) (Policy 403: Cell Phone Allowance).

"All county business generated on personal mobile devices are subject to the Public Records Act.... Text messages sent and received on a personal mobile device are not stored in any other form. Employees shall not use texting for any County business." THURSTON COUNTY ADMINISTRATIVE MANUAL (2012) § IO (Personal Mobile Device Policy).

[10] [11) [12) ,r 19 With that understanding, it 1s • "Employees should be aware that work-related texts clear that an agency's "public records" include the work product of its employees. And we find nothing in the text or purpose of the PRA supporting the County's suggestion that only work product made using agency property can be a public record. To the contrary, the PRA is explicit that information qualifies as a public record "regardless of

and voice messages on cell phones are public records subject to the Public Records Act. Employees have a duty to maintain such records in accordance with the Washington Local Government Record Retention Schedules." CITY OF GRANDVIEW, PERSONNEL POLICY MANUAL 88 (2013) (use

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of personal cellular telephones to conduct city business), http://www.grand view. wa. us/wp-content/ uploads/2013/03/Personnel-Policy-Manuall. pdf.

These policies are comparable to many others around the state and are consistent with the attorney general's understanding of the PRA. See WAC 44--14--03001(3). While these interpretations do not bind us, O'Neill, 170 Wash.2d at 149,240 P.3d 1149, they discredit the County's assertion that private cell phone use has always been treated as outside the PRA.

Predisik v. Spokane Sch. Dist. No. 81, 182 Wash.2d 896, 906, 346 P.3d 737 (2015).

II. APPL YING THE PRA TO THE CALL AND TEXT MESSAGE LOGS AND TEXT MESSAGES

[17] ,r 23 We next apply RCW 42.56.010(3) to the records at issue here-the call and text message logs and text messages. To be a public record under RCW 42.56.010(3), information must be (I) a writing (2) related to the conduct of government or the performance of government

**54 (14] (15] [16] ,r 21 Similarly unpersuasive functions that is (3) prepared, owned, used, or retained is the County's warning that every "work-related" by a state or local agency. Confederated Tribes of the personal communication is now a public record subject Chehalis Reservation *880 v. Johnson, 135 Wash.2d 734, to disclosure. Traditional notions of principal-agency 746, 958 P.2d 260 (1998). The first element is not in dispute Jaw alleviate this concern. For information to be a -the parties agree that the call and text message logs and public record, an employee must prepare, own, use, or text messages are "writings" under the PRA. See RCW retain it within the scope of employment. An employee's 42.56.010(4). The remaining two elements are discussed in communication is "within the scope of employment" only when the job requires it, the employer directs it, or

it furthers the employer's interests. Greene v. St. Paul-Mercury Indern. Co., 51 Wash.2d 569, 573, 320 P.2d 311 (1958) (citing Lunz v. Dep't of Labor & Indus., 50 Wash.2d 273, 310 P.2d 880 (1957); *879 Roletto v. Dep't Stores Garage Co., 30 Wash.2d 439, 191 P.2d 875 (1948)). This limits the reach of the PRA to records related to the employee1s public responsibilities. For instance, employees do not generally act within the scope of employment when they text their spouse about working late or discuss their job on social media. Nor do they typically act within the scope of employment by creating or keeping records purely for private use, like a diary. None of these examples would result in a public record .. prepared, owned, used, or retained'' by the employer

agency in the usual case. 7

,r 22 Agencies can act only through their employee-agents. With respect to an agency's obligations under the PRA, the acts of an employee in the scope of employment are necessarily acts of the "state and local agenc[ies]" under RCW 42.56.010(3). We therefore reject the County's argument that records related to an employee's private cell phone can never be public records as a matter of law. Instead, records an employee prepares, owns, uses, or

retains within the scope of employment are public records

if they meet all the requirements of RCW 42.56.010(3). This inquiry is always case- and record-specific. Cf

turn.

A. Records Relating to the Conduct of Government

,r 24 Public records must "relat[e] to the conduct of government or the performance of any governmental or proprietary function." RCW 42.56.010(3). This language casts a wide net. In Confederated Tribes, for example, we held that records of money paid by Indian tribes into a common fund related to the conduct of the government even though the records related primarily to

tribal gaming operations. 135 Wash.2d at 739-43, 958 P.2d 260. Since the state received money from the common fund, we determined tribal contributions impacted state government and therefore records of those contributions

were public records. Id. at 748, 958 P.2d 260.

,r 25 We adopted a similarly broad interpretation m Oliver v. Harborview Med. Ctr., 94 Wash.2d 559, 618 P.2d 76 (1980), which involved medical records of patients hospitalized at a state-owned facility. The records there unquestionably related to individual patients and did not explicitly discuss government operations, but we still held that the records "relat[ed] to the conduct of government" under RCW 42.56.010(3). From them the public could learn about the "administration **55 of health care services, facility availability, use and care, methods of

diagnosis, analysis, treatment and costs, all of which are

carried out or relate to the performance of a governmental

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or proprietary function." Oliver, 94 Wash.2d at 566, 618 P.2d 76.

[18] [19] ,r 26 Together these cases suggest records can qualify as public records if they contain any information *881 that refers to or impacts the actions, processes, and

functions of government. 8

B. Records Prepared, Owned, Used, or Retained by an Agency

[20] [21] ,r 27 As explained previously, a public record must also be "prepared, owned, used, or retained" by an agency, which includes an agency employee acting within

the scope of employment. But the parties still quarrel over the meaning of these verbs, which requires that we further

interpret RCW 42.56.010(3). Statutory interpretation starts with the plain meaning of the language; the plain meaning controls if it is unambiguous. Campbell, 146 Wash.2d at 11-12, 43 P.3d 4. We may use a dictionary to discern the plain meaning of an undefined statutory term. HomeStreet, Inc. v. Dep't of Revenue, 166 Wash.2d 444, 451, 210 P.3d 297 (2009) (citing Garrison v. Wash. State Nursing Bd, 87 Wash.2d 195, 196, 550 P.2d 7 (1976)).

,r 28 "Prepared." "Prepare" is defined as "to put together"; to "MAKE, PRODUCE"; "to put into written form." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1790 (2002). This interpretation is consistent with previous cases that treat "preparing" a record as creating it. See Dawson, 120 Wash.2d at 787,845 P.2d 995 (agency prepared record by "creat[ing] one of the files"); Oliver, 94 Wash.2d at 566,618 P.2d 76 (records of patient's hospitalization prepared by the hospital).

,r 29 "Owned" To "own" a record means "to have or hold

[it] as property." WEBSTER'S, supra, at 1612; see also

O'Neill v. City of Shoreline, 145 Wash.App. 913, 925, 187 P.3d 822 (2008).

[22] ,r 30 "Used" We previously addressed what it means for an agency to "use" a record. We broadly interpreted the term in Concerned Ratepayers Ass'n v. Pub. Util. Dist.

No. 1 of *882 Clark County, 138 Wash.2d 950, 960, 983 P.2d 635 (1999), holding that the "critical inquiry is whether the requested information bears a nexus with the agency's decision-making process." A record that is prepared and held by a third party, without more, is not a

public record. But if an agency "evaluat[es], review[s], or refer[s ]" to a record in the course of its business, the agency

"uses" the record within the meaning of the PRA. Id at 962, 983 P.2d 635.

,r 31 "Retained." To "retain" a record means "to hold or continue to hold [it] in possession or use." WEBSTER'S, supra, at 1938.

C. The Text Messages Are Potentially Public Records; the Call and Text Message Logs Are Not

[23] ,r 32 We now apply those definitions to decide if the complaint sufficiently alleges that the call logs and text messages are "public records." Absent an allegation that the County used the call and text message logs, the logs in this case are not public records. The call and text message logs were prepared and retained by Verizon, and Nissen does not contend that the County evaluated, reviewed, or took any other action with the logs necessary to "use" them. Concerned Ratepayers, 138 Wash.2d at 962, 983 P.2d 635. Though they evidence the acts of a public employee, the call and text message logs played no role in County business as records themselves. We hold that the complaint fails to allege the call and text message logs are "public records" of the County within the meaning of RCW 42.56.010(3) because the County did nothing with them.

[24] ,r 33 We reach a different conclusion as to text messages. Nissen sufficiently alleges that Lindquist sent and received text messages in his official capacity "to take actions retaliating against her and other official misconduct." CP at 14. When acting **56 within the scope of his employment, Lindquist prepares outgoing text messages by "putting them into written form" and sending them. Similarly, he *883 "used" incoming text messages when he reviewed and replied to them while within the scope of employment. Since the County and Lindquist admit that some text messages might be "work related," the complaint sufficiently alleges that those messages meet all three elements of a "public record" under RCW 42.56.010(3).

,r 34 Transcripts of the content of those text messages are thus potentially public records subject to disclosure, consistent with the procedure discussed below.

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III. SEARCHING FOR PUBLIC RECORDS WITHIN AN EMPLOYEE'S CONTROL

[25[ ,r 35 We finally turn to the mechanics of searching for and obtaining public records stored by or in the control of an employee. The County and Lindquist suggest that various provisions of the state and federal constitutions categorically prohibit a public employer from obtaining public records related to private cell phone use without

consent. 9 Because an individual has no constitutional

privacy interest in a public record, 10 Lindquist's challenge

is necessarily grounded in the constitutional rights he has in personal information comingled with those public records. We are mindful that today's mobile devices often contain "a 'wealth of detail about [a person's] familial, political, professional, religious, and sexual associations.' " State v. Hinton, l 79 Wash.2d 862, 869, 319 P.3d 9 (2014) (alteration in original) (quoting United States v. Jones, 565 U.S. ~-, 132 S.Ct. 945, 955, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring)). As nearly twothirds of Americans can now communicate, access the Internet, store documents, and manage appointments on their smartphone, cell phones *884 are fast becoming an indispensable fixture in people's private and professional lives. Text messaging is the most widely used smartphone feature; e-mail is not far behind. Aaron Smith, US

Smartphone Use in 2015, PEW RESEARCH CTR. (Apr. 1, 2015), http://www.pewintemet.org/2015/04/0l/ us--smartphone-use-in-2015.

,r 36 Yet the ability of public employees to use cell phones to conduct public business by creating and exchanging public records-text messages, e-mails, or anything elseis why the PRA must offer the public a way to obtain those records. Without one, the PRA cannot fulfill the people's mandate to have "full access to information concerning the conduct of government on every level." LAWS OF 1973, ch. 1, § 1(11). As noted earlier, many counties, cities, and agencies around the state recognize the need to capture and retain public records created on personal devices. Some of those entities provide employees with a way to preserve public records and avoid any inquiry into their private affairs by, for example, syncing work-related documents, e-mails, and text messages to an agency server

or other place accessible to the employer. The County apparently has no such policy.

[26] [27] ,r 37 While a policy easing the burden on employees of preserving public records is certainly helpful, it cannot be a precondition to the public's right to access those records. If it were, the effectiveness of the PRA would hinge on "the whim of the public officials whose activities it is designed to regulate." ~Mead Sch. Dist. No. 354 v. Mead Educ. Ass'n, 85 Wash.2d 140, 145, 530 P.2d 302 (1975). The legislature tasks us with interpreting the PRA liberally and in light of the people's insistence that they have information about the workings of the government they created. RCW 42.56.030. Of course, the public's statutory right to public records does not extinguish an individual's constitutional rights in private information. But we do not read the PRA as a zerosum choice between personal liberty and government accountability. Instead, we turn to well-settled principles of public disclosure **57 law and hold that an employee's *885 good-faith search for public records on his or her

personal device can satisfy an agency's obligations under thePRA.

[28] [29] ,r 38 Though technology evolves, segregating public records from nonpublic ones is nothing new for agencies responding to a PRA request. Whether stored in a file cabinet or a cell phone, the PRA has never authorized "unbridled searches" of every piece of information held by an agency or its employees to find records the citizen believes are responsive to a request. Hangartner v. City of Seattle, 151 Wash.2d 439, 448, 90 P.3d 26 (2004). The onus is instead on the agency-necessarily through its employees-to perform "an adequate search" for the records requested. Neigh. All., 172 Wash.2d at 720-21, 261 P.3d 119. To satisfy the agency's burden to show it conducted an adequate search for records, we permit employees in good faith to submit "reasonably detailed, nonconclusory affidavits" attesting to the nature and extent of their search. Id at 721,261 P.3d 119. The PRA allows a trial court to resolve disputes about the nature of a record "based solely on affidavits," RCW 42.56.550(3), without an in camera review, without searching for records itself, and without infringing on an individual's constitutional privacy interest in private information he or she keeps at work.

[30] ,r 39 Federal courts implementing the Freedom of Information Act (FOIA), Pub. L. No. 89--487, 80 Stat. 250, allow individual employees to use the same method to self-segregate private and public records. See, e.g., Media Research Ctr. v. US Dep't of Justice, 818 F.Supp.2d 131,

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139-40 (D .D.C.2011) ( declarations sufficient to determine e-mails were not sent in employee's official capacity); Consumer Fecfn of Am., v. Dep't of Agric., 455 F.3d 283, 288-89 (D.C.Cir.2006) (affidavits from employees about character of electronic calendars); Bloomberg, LP v. U.S. Sec. & Exch. Comm'n, 357 F.Supp.2d 156, 163 (D.D.C.2004) (affidavits about "telephone logs" and message slips); *886 Judicial Watch. Inc. v. Clinton. 880 F.Supp. !, 11-12 (D.D.C. 1995); Gallant v. Nat'/ Labor Relations Bd., 26 F.3d 168, 171 (D.C.Cir.1994). While "[ a]n agency cannot require an employee to produce and submit for review a purely personal document when responding to a FOIA request[,] ... it does control the employee to the extent that the employee works for the agency on agency matters." Ethyl Corp. v. U.S. Envt'l Prat. Agency, 25 F.3d 1241, 1247 (4th Cir.1994). Thus, where a federal employee asserts a potentially responsive record is personal, he or she must provide the employer and "the courts with the opportunity to evaluate the facts and reach their own conclusions" about whether the record is subject to FOIA. Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 480-81 (2d Cir.1999). We already incorporate FOIA's standard for adequate searches into the PRA, Neigh. All., 172 Wash.2d at 720,261 P.3d 119, and we similarly adopt FOIA's affidavit procedure for an employee's personally held public records.

disclose public records without unnecessarily treading on the constitutional rights of its employees.

**58 ,r 42 We recognize this procedure might be criticized as too easily abused or too deferential to employees' judgment. Certainly the same can be said of any search for public records, not just for records related to employee cell phone use. But we offer two specific responses. First, an employee's judgment would often be required to help identify public records on a cell phone, even in an in camera review. Text messages, for example, are short communications whose meaning may not be selfapparent. Unlike a chain of e-mails where the preceding messages are often replicated in the body of each new reply, text messages may contain only a few words. The employee then might be needed to put that message into context to determine if it meets the statutory definition of a "public record."

[34] ,r 43 Second, those criticisms spotlight why agencies should develop ways to capture public records related to employee cell phone use. The people enacted the PRA "mindful of the right of individuals to privacy," LAWS OF 1973, ch. 1, § 1(11), and individuals do not sacrifice all constitutional protection by accepting public employment. City of Ontario v. Quon, 560 U.S. 746, 756, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010). Agencies are in

[31] [32] ,r 40 Therefore, we hold agency employees the best position to implement policies that fulfill their are responsible for searching their files, devices, and accounts for records responsive to a relevant PRA request. Employees must produce any public records (e-mails, text messages, and any other type of data) to the employer agency. The agency then proceeds just as it would when responding to a request for public records in the agency's possession by reviewing each record, determining if some or all of the record is exempted from production, and disclosing the record to the requester. See generally Resident Action Council v. Seattle Haus. Auth., 177 Wash.2d 417, 436-37, 327 P.3d 600 (2013).

[33] ,r 41 Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an *887 agency to fulfill its responsibility to search for and

obligations under the PRA yet also preserve the privacy rights of their employees. E-mails can be routed through agency servers, documents can be cached to agencycontrolled cloud services, and instant messaging apps can store conversations. Agencies could provide employees with an agency-issued device that the agency retains a right to access, or they could prohibit the use of personal devices altogether. That these may be more effective ways to address employee cell phone use, however, does not diminish the PRA's directive that we liberally construe it here to promote access to all public records. RCW 42.56.010(3).

*888 CONCLUSION

,r 44 We affirm the Court of Appeals in part. Records that an agency employee prepares, owns, uses, or retains on a private cell phone within the scope of employment can be "public records" of the agency under RCW 42.56.010(3). Nissen's complaint thus sufficiently alleges that at least

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some of the text messages at issue may be public records subject to disclosure. Because it is impossible at this stage

to determine if any messages are in fact public records, on remand the parties are directed as follows. Lindquist must obtain a transcript of the content of all the text messages at issue, review them, and produce to the County

any that are public records consistent with our opinion. The County must then review those messages-just as it

would any other public record~and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log to Nissen. As to text messages that Lindquist in good faith determines are not public records, he must submit an affidavit to the County attesting to the personal character of those messages. The County must also produce that affidavit to Nissen.

,r 45 We note that the County responded to Nissen's records requests and produced records in a timely

Footnotes

manner based on what we presume was its good-faith interpretation of the PRA. Though we now hold that interpretation is incorrect) penalties are not warranted at this early stage before the County has had the opportunity to comply with our opinion and supplement its response to Nissen1s requests accordingly. We reserve for the trial court the issue of penalties going forward.

MADSEN, C.J., and JOHNSON, OWENS, FAIRHURST, STEPHENS, WIGGINS, GONZALEZ, and MCCLOUD, JJ., concur.

All Citations

183 Wash.2d 863, 357 P.3d 45, 43 Media L. Rep. 3150

1 Though redacted in the record before us, the requests contained the full 10-digit telephone number.

2 The County has not challenged the breadth or specificity of these requests, and we pass no opinion.

3 The messages apparently no longer exist on Lindquist's phone. In conjunction with her PRA requests, however, Nissen's

lawyer contacted Verizon and asked it to preserve all "communications and data [on Lindquist's account] ... pending the issuance of a subpoena or other legal process." GP at 200. The propriety of that request is not before us.

4 Disclosing that a public record exists in response to a request does not mean the record will ultimately be produced.

Agencies must consider whether any applicable exemption precludes production of part or all of a record. Sanders v. State, 169 Wash.2d 827, 836, 240 P.3d 120 (2010).

5 The County admits that this is the natural result of its interpretation of the PRA. Wash. Supreme Court oral argument,

Nissen v. Pierce County, No. 90875-3 (June 11, 2015), at 3 min., 4 sec., and 6 min., 57 sec., audio recording by TVW, Washington State's Public Affairs Network, http:llwww.tvw.org.

6 Whether an elected official is independently subject to the PRA is an unsettled question. See Bldg. Indus. Ass'n of Wash.

v. McCarthy, 152 Wash.App. 720,746,218 P.3d 196 (2009). Here, however, Nissen did not sue Lindquist, either in his

individual or official capacity. She instead sued the County, alleging that Lindquist's use of his cell phone resulted in

public records of the County; Lindquist is a party only because he intervened to enjoin disclosure. The relevant question

then is not whether Lindquist is individually subject to the PRA but, rather, whether records he handles in his capacity as the prosecutor are county public records.

7 We offer these generic illustrations in response to hypotheticals raised by the County and some amici. Of course, the

facts of every case vary. We do not intend these illustrations to have precedential effect.

8 It is worth repeating that records an employee maintains in a personal capacity will not qualify as public records, even if they refer to, comment on, or mention the employee's public duties.

9 They primarily cite to the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution.

1 O See Nixon v. Adm'rof Gen. Servs., 433 U.S. 425,457, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (noting public officials have

"constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity" (emphasis added)).

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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APPENDIX "F"

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Journal/Sentinel, Inc. v. School Bd. of School Dist. of Shorewood, 186 Wis.2d 443 (1994)

521 N.W.2d 165, 94 Ed. Law Rep. 478, 22 Media L. Rep. 2245 . .

186 Wis.2d 443 Court of Appeals of Wisconsin.

JOURNAL/SENTINEL, INC., Bruce

Gill, Michael Bayer and Lawrence

Sussman, Plaintiffs-Respondents,

v. SCHOOL BOARD OF the SCHOOL DISTRICT

OF SHOREWOOD, Arny Lewis, in her capacity

as Shorewood School Board President, John L.

Linehan, in his capacity as School District Acting

Superintendent, von Briesen & Purtell, S.C., in

its capacity as Shorewood School District Agent

and Attorney, Defendants-Appellants.' ]]]

No. 93-3106.

I Oral Argument July 6, 1994.

I Opinion Released July 19, 1994.

I Opinion Filed July 19, 1994.

Synopsis Newspaper publisher and its employees brought action against school district1s board, board president, district's

acting superintendent, and district's law firm, seeking access to memorandum of understanding reciting settlement terms of former district superintendent's breach of contract and defamation action against board. The Circuit Court, Milwaukee County, Laurence C. Gram, Jr., J., granted summary judgment for plaintiffs. On appeal, the Court of Appeals, Fine, J., held that: (I) memorandum was "record" subject to public disclosure

under public records law, despite fact that memorandum was drafted largely by board's law firm with input from former superintendent's counsel; (2) memorandum was not "draft" excepted from public disclosure requirement of public records law; and (3) balance of interests did not allow board to withhold memorandum in response to publisher's request for disclosure.

Affirmed.

Attorneys and Law Firms

**166 *445 On behalf of the defendants-appellants, the cause was submitted on the briefs of Michael J. Morse, Warren L. Kreunen, and Brent P. Benrud ofvon Briesen & Purtell, S.C., Milwaukee. There was oral argument by Michael J. Morse, Milwaukee.

On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of Dennis L. Fisher of Meissner & Tierney, S.C., Milwaukee. There was oral argument by Dennis L. Fisher, Milwaukee.

Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.

Opinion

**167 FINE, Judge.

This is an appeal from the trial court's grant of summary judgment in favor of the publisher of Milwaukee's two newspapers of general circulation and three of its employees, directing the Board of Directors of the School District of the Village of Shorewood, the board president, the school district's acting superintendent, and the school board's attorneys to release, under Wisconsin's public records law,§§ 19.31-19.37, STATS., a document entitled "Memorandum of Understanding," which recited the settlement terms of a lawsuit between the school board and a former superintendent of the Shorewood school district. We affirm.

I.

In November of 1991, the school district's superintendent, Lynne Moore, sued the district and members of the school board, alleging breach of contract and *446 defamation. The case was settled and the settlement was approved by the school board at its meeting on August 20, 1992.

A stipulation for "voluntary withdrawal" of Moore's action, and an order for dismissal was filed in court on August 21, 1992. Throughout the proceedings, Moore was represented by the Milwaukee law firm of Shindell and Shindell, and the district and the school-board members were represented by the Milwaukee law finn of von Briesen and Purtell.

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521 N.W.2d 165, 94 Ed. Law Rep. 478, 22 Media L. Rep. 2245

Although the settlement agreement was ostensibly oral, it was memorialized by the "Memorandum of Understanding," access to which is sought by the publisher and its employees in this lawsuit. This "Memorandum of Understanding" is dated August 20, 1992, and was signed on behalf of the defendants in Moore's suit by Timothy Dugan, then of the von Briesen firm, at the direction of the school board. It was also

signed by Anne Shindel!, one of Moore's lawyers, on Moore's behalf.

An original signed copy of the "Memorandum of Understanding" is at the von Briesen firm. Although copies of the "Memorandum of Understanding" were given to each school-board member on August 20 prior to the board's discussion and approval of the settlement, the copies were retrieved from the school-board members before the meeting ended.

The "Memorandum of Understanding" is the final version of a document that, as reflected by the appellate record, went through twenty drafts by von Briesen lawyers. At least some of the drafts were discussed with the Shindel! firm as part of the ongoing settlement negotiations, and were modified in accordance with those negotiations. The final typed version of the "Memorandum of Understanding" brought by the von Briesen firm to the school-board meeting on August 20 *447 was itself modified by handwritten changes as the result of lastminute negotiations.

There is no doubt from this record but that the "Memorandum of Understanding" played a significant role in the settlement process and is the final document that reflects the settlement terms. Indeed, the then president of the school board, Amy Lewis, testified at her deposition that she relied on the "Memorandum of Understanding" in assessing and approving the settlement. Further, in announcing its oral decision, the trial court noted that the "Memorandum of Understanding" contains the following language, as read into the record by the trial court, immediately preceding the terms of the agreement: "The board and Moore have agreed for good and sufficient consideration as follows, colon," and that the "Memorandum of Understanding" concludes:

The parties to the settlement have been advised by their attorneys of all the constituent parts of the

••-"'"•--•--·-•------·-·-es-•--••-·---··--·--·--•----

settlement and to the provisions in this memorandum. The parties reviewed this memorandum with their legal counsel, acknowledge it is an accurate and complete representation of their settlement, and is binding upon them although not personally signed. The parties have directed their attorneys as their authorized agents to execute this Memorandum of Understanding in duplicate on their behalf and have directed their attorneys to file one duplicate original in each of their respective professional offices.

One of settlement's terms was that the terms themselves would remain secret.

**168 II.

It is the settled policy in this state that, subject to extremely narrow and well-defined exceptions, the *448 workings of government are open to public scrutiny. The legislature has consistently reaffirmed this fundamental right in various contexts:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employes [sic] who represent them.

Section 19.31, STATS. (public records).

In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government

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as is compatible with the conduct of governmental business.

Section 19.81(1), STATS. (open meetings).

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

Section 757.14, STATS. (court proceedings). Wisconsin's tradition of openness in government reflects the truism, expressed by Jeremy Bentham more than one-hundred and fifty years ago, that "[w]ithout publicity, all other checks are insufficient." I Jeremy Bentham, RATIONALE OF JUDICIAL EVIDENCE 524 (1827), quoted in *449 Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555, 569, 100 S.Ct. 2814, 2823, 65 L.Ed.2d 973 (1980).

*451 A. Whether the "Memorandum of Understanding"

is a "record" subject to public disclosure.

(5] The public-records law defines "record" as "any material on which ... information is recorded or preserved,

regardless of physical form ... which has been created or is being kept by an authority." Section 19.32(2),

STATS. 4 An "authority" is defined by the public-records law as, inter alia, any "state or local office, *452

elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order."

Section 19.32(1), STATS. 5 The school board appellants contend that the "Memorandum of Understanding" is not a "record," and base this contention on two footings: that the "Memorandum of Understanding" was neither created nor is being kept by an "authority." Rather, they argue, the "Memorandum of Understanding" was drafted largely by von Briesen with input from Moore's counsel, and point out that the document is ensconced in von Briesen1s files.

Although von Briesen is a private law firm, and not itself

an "authority," the record is **170 undisputed that it drafted and has maintained custody of the "Memorandum of Understanding" as attorney for the school board, which is an "authority" under the public-records law.

[11 [2] (31 (41 This case is governed by the publicfhe school board appellants' argument thus resolves to records law,§§ 19.31-19.37, STATS., and the legislatively whether a public body may avoid the *453 public access mandated "presumption of complete public access," § 19.31, STATS.; see also Oshkosh Northwestern Co. v.

Oshkosh Library Bd, 125 Wis.2d 480, 482, 373 N.W.2d 459,461 (Ct.App.1985). Although§ 19.31 recognizes that there may be circumstances where the "conduct of public business" requires that public access to the records be denied or restricted, it commands: "The denial of public access generally is contrary to the public interest, and

only in an exceptional case may access be denied." Ibid. 1

The flat rule is that any person who seeks access to "any" public record "has a right to inspect" that record,

unless the law otherwise provides. 2 The school *450

board appellants recognize this policy, but nevertheless contend that the "Memorandum of Understanding" is protected from disclosure. We analyze their contentions, which, because they present issues oflaw and the facts are not in dispute, **169 we decide de novo. See Oshkosh

Northwestern, 125 Wis.2d at 485, 373 N.W.2d at 462. 3

mandated by the public-records law by delegating both the record's creation and custody to an agent. Posing this question provides its answer: it may not. Indeed, § 19.36(3), STATS., specifically provides that access is to be granted to "any record produced or collected under a contract entered into by the authority ... to the same extent as if the record were maintained by the authority." Thus, in Fox v. Bock, 149 Wis.2d 403, 438 N.W.2d 589 (1989), the court assumed without discussion that a report prepared by a private consulting firm at the request of a government agency was not excluded from the definition of record because the report was neither

prepared directly by the agency nor kept in its custody. 6

The school board appellants argue, however, that § 19.36(3) does not apply because von Briesen's contract with the board was to provide legal services and not the "Memorandum of Understanding." This attempted distinction is without merit; the document was produced during the course of von Briesen's representation of

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521°N.w'.2d 165, 94 Ed. Law Rep. 4i8, 22 Media LRef). 2245 "---··---"·"-··-

the district, and was, in effect, the culmination of that representation. Furthermore, as we discuss below, von Briesen's actions on behalf of the district were actions by the district for the purposes of the public-records law.

[6] A lawyer retained by a client is the client's agent for the purposes of the retention agreement. See Groom

v. Professionals Ins. Co .. 179 Wis.2d 241, 250 n. 3, 507 N.W.2d 121, 125 n. 3 (Ct.App.1993) ("A party is bound *454 by the acts of her lawyer-agent and has notice of all facts in the possession of her attorney."); see also, e.g., Pioneer Inv. v. Brunswick, 507 U.S. 380, --, 113 S.Ct. 1489, 1499, 123 L.Ed.2d 74 (1993) (party chargeable with attorney's neglect); Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 92-93, 111 S.Ct. 453, 455-56, 112 L.Ed.2d 435 (1990) (receipt by attorney of Equal Employment Opportunity Commission rightto-sue letter is receipt by client). Thus, for example, statements made by counsel during the course of his or her representation of the client are admissible against the client at trial under the federal version of RULE

908.01(4)(b)4, STATS., Fed.R.Evid. 80l(d)(2)(D). 7 See,

e.g., Sunkyong Int'/., Inc. v. Anderson Land & Livestock

Co., 828 F.2d 1245, 1249 n. 3 (8th Cir.1987) (abandoned or superseded pleading may be introduced as the party's admission); United States v. McKean, 738 F.2d 26, 30-34 (2d Cir.1984) (attorney's opening statement in first trial admissible against client in second trial). There is no doubt but that the "Memorandum of Understanding" would be a "record" under the public-records law if it were either "created" or "kept" by the school board, its

officers, or employees. See§ 19 .32(2), STATS. Delegating either of those responsibilities to outside counsel does not thereby remove the document from the statute1s definition

of"record." Cf Upjohn Co. v. United States, 449 U.S. 383, 396, IOI S.Ct. 677, 686, 66 L.Ed.2d 584 (1981) (turning otherwise discoverable documents over to counsel does not thereby enrobe them with an attorney-client privilege). Indeed, counsel for the school board appellants admitted on oral argument that, absent questions revolving around

the *455 applicability of an attorney's lien, the von Briesen firm would have to deliver the "Memorandum of Understanding" to the law firm's client, if so requested. Cf. § 19.21(1), STATS. (An officer of a school district "is the legal custodian of ... all property and things ... the possession or control of which the officer or the officer's deputies may be lawfully entitled, as such **171

officers."). von Briesen1s creation and retention of custody

of the "Memorandum of Understanding" is attributable

ii:; ;k1!,r1

to the school board to the same extent as if the document were created or kept by school board personnel. It is a "record" subject to disclosure under the public-records

law.

B. Whether the "Memorandum of Understanding" is a

"draft" excepted from the mandate of public disclosure.

[7] Section 19.32(2), STATS., excludes the following from the definition of "record": "drafts, notes, preliminary computations and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator

is working." The school board appellants argue that the "Memorandum of Understanding" falls within this category. We disagree.

The only case in Wisconsin to discuss what qualifies as a "draft" under § 19.32(2), STATS., is Fox v. Bock, 149 Wis.2d 403, 438 N.W.2d 589 (1989). There, a consultant's report commissioned by the Racine

Corporation Counsel's office was held not to be a "draft"

even though it had not been put into final form when used by the commissioning agency. Id., 149 Wis.2d at 405, 417, 438 N.W.2d at 590, 595. The key factor in Fox 's determination was that the agency used the *456

report for the purposes for which it was commissioned.

Id., 149 Wis.2d at 413, 438 N.W.2d at 594. By the same token, the "Memorandum of Understanding" at issue

here was signed by both the school board's attorney and the attorney for Moore, and it was used by the school board during the August 20 meeting at which the settlement was approved. It was the final document that reified the terms of the oral agreement between Moore and the school board settling Moore's lawsuit, and recited that

it was ''an accurate and complete representation" of that

settlement. It was not a "draft" as that term is used in the public-records law.

C. Balancing of interests.

[8] [9] The school board appellants argue that "[e]ven if' the public-records law applies, a balancing of interests requires deference to what their brief calls the board's

"pledge of confidentiality." 8 *457 State ex rel. Youmans

v. Owens, 28 Wis.2d 672, 681-682, 137 N.W.2d 470, 474 (1965) (pledge of confidentiality may preclude public access) (applying common-law principles, the vitality of which is preserved by § 19.35(l)(a), STATS.). This balancing is a legal issue that we decide de nova. Village

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of Butler v. Cohen. 163 Wis.2d 819,829,472 N.W.2d 579, 581 (Ct.App.1991).

The interests to be balanced are, on the one hand, the "harm to the public interest by disclosure," and, on the other hand, "the public interest in inspection." Id.. 163 Wis.2d at 829, 472 N.W.2d at 583; see also Youmans. 28 Wis.2d at 681-682, 137 N.W.2d at 474-475. Accordingly, that one or both parties might prefer that the terms of the settlement agreement remain confidential, or that confidentiality might serve their interests, is not material to our consideration unless those factors significantly affect the public interest. Thus, Youmans recognized that for a pledge of confidentiality to prevent access to information given to a government agency by a private party, the information must have been otherwise not available to the agency. See **172 id.. 28 Wis.2d at 681-

682, 137 N.W.2d at 474. 9 See also 60 Op.Att'y Gen. 284, 288-289 (1971) (Access may be denied "where information was obtained under official pledge of confidentiality, and where the information could not otherwise have been obtained by the governmental agency.").

The school board appellants posit that a government agency's ability to throw a promise of *458

confidentiality into the pot of settlement negotiations might help expedite the settlement process and, perhaps, spur settlements that might otherwise be impossible. Thus, according to their argument, the ability to shield settlements from public scrutiny advances the public interest because settlements are in the public interest. This argument misconstrues the narrow exception recognized by Youmans. The focus is on the information disclosed to a government agency under a pledge of confidentiality -not on collateral matters. There is nothing in the record here that indicates that there is any information in the "Memorandum of Understanding" that would have

been withheld from the school board, and not otherwise available to it, if the school board had not pledged to keep the information secret. Furthermore, if the school board's argument were accepted, public scrutiny of most if not all settlement agreements involving government would be barred-promises of confidentiality would then be de rigueur. This would effectively end-run the openness mandated by Wisconsin's public-records law, and the presumption of access. If a lawsuit cannot be settled unless its terms are kept secret, the case will go to trial, where,

"-·-·~·~'-·-·-·--.. ·-···"'''~··-,.··------------·-·-· ---.····-· ''""""--·--"-··----s••····-

[10) [11[ The presumption that public records in Wisconsin are open to the public is not outweighed by whatever benefits may have accrued to the public as the result of the Shorewood district's promise to Moore that the terms of the settlement would not be disclosed to the public. Moore's truncated tenure with the Shorewood school district is obviously a matter of public concern; *459 at the very least it reflects on the competence of

those district officials and employees who hired Moore, and on those who sought to terminate her employment with the district. All officers and employees of government are, ultimately, responsible to the citizens, and those citizens have a right to hold their employees accountable for the job they do. As the attorney general explained nearly a decade ago:

[T]he main purpose of the public records law is to enable the

citizenry to monitor and evaluate the performance of public officials and employes [sic ]. If information relating to a settlement and the underlying personnel dispute are kept confidential, the public is deprived of this ability. For this reason the pledge of confidentiality itself is troublesome because the

custodian making the pledge is purporting to grant an exception to the public records law. This is particularly troublesome when the settlement involves the payment of money by the government. The public's interest in such information is generally great.

74 Op.Att'y Gen. 14, 16 (1985). See also Youmans, 28 Wis.2d at 685, 137 N.W.2d at 475 (public interest is served by exposing dereliction in duty by public official). Further, the settlement of Moore's suit obviously involved the expenditure of public money-either directly or indirectly (via insurance coverage). Taxpayers of a community have the right to know how and why their money is spent. The public interest is not served by keeping the "Memorandum of Understanding" secret.

absent special circumstances, public access is the rule, see *460 D. Attorney-client privilege.

§ 757.14, STATS. 10

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[12] [13] The school board appellants also claim

that disclosure of the "Memorandum of Understanding"

would breach the attorney-client privilege between the district and the **173 von Briesen firm. This argument

is without merit. The privilege applies only to confidential communications from the client to the lawyer; it does not protect communications from the lawyer to the client

unless disclosure of the lawyer-to-client communications would directly or indirectly reveal the substance of

the client's confidential communications to the lawyer. 2 Jack Weinstein & Margaret Berger, WEINSTEIN'S EVIDENCE,~ 503(b)[03] n. 5 at 503-56 to 503-57 (1991);

Footnotes t Petition for Review denied.

1 Section 19.31, STATS., provides in full:

In re Sealed Case, 737 F.2d 94, 98-99 (D.C.Cir.1984);

United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358-359 (D.Mass.1950). There has been no showing that

the "Memorandum of Understanding" falls within this

rule. II

Order affirmed.

All Citations

186 Wis.2d 443, 521 N.W.2d 165, 94 Ed. Law Rep. 478, 22 Media L. Rep. 2245

Declaration of policy. ln recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employes [sic J who represent

them. Further, providing persons with such information is declared to be an essential function of a representative

government and an integral part of the routine duties of officers and employes [sic] whose responsibility it is to provide

such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete

public access, consistent with the conduct of governmental business. The denial of public access generally is contrary

to the public interest, and only in an exceptional case may access be denied.

2 Section 19.35(1)(a), STATS., provides in full: Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law

principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to

the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but

may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33

makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.

A "requester" is "any person who requests inspection or copies of a record." Section 19.32(3), STATS. 3 As a preliminary matter, we note that the publisher contends that the school board's response to the publisher's request

for access to various records relating to the settlement of Moore's lawsuit was insufficient. See§ 19.35(4), STATS. ("If

an authority denies a written request in whole or in part, the requester shall receive from the authority a written statement

of the reasons for denying the written request."); State ex rel. Youmans v. Owens, 28 Wis.2d 672,682, 137 N.W.2d 470, 475 (1965) (custodian of record to which public access is denied must "'state specifically the reasons" for the denial) (applying common-law principles, the vitality of which is preserved by§ 19.35(1 )(a), STATS.), opinion modified on other

grounds, 28 Wis.2d at 685a, 139 N.W.2d 241 (1966). We disagree. A custodian's response that denies public access to a record is sufficiently specific if the response gives "a public policy

reason that the record warrants confidentiality." Journal/Sentinel, Inc. v. Aagerup, 145 Wis.2d 818,823,429 N.W.2d 772, 774 (Ct.App.1988). A "detailed analysis" of the record or of the reasons why the custodian believes that disclosure would not be in the public interest, however, is not required. Ibid. Here, some of the requested documents were either produced

or did not exist. The school board's partial denials asserted the following grounds: the documents were not "records" as

defined by the public-records law, the documents were protected by "a pledge of confidentiality," the documents were

protected by the attorney-client privilege and the work-product doctrine, the documents were protected by "[b]alancing

the interest to the public to access to such records and the harm to the public by disclosure." In connection with this

latter reason, the school board explained that in its view, it was in the public's "best interests" that the "documents not

be disclosed because the matter involves sensitive personnel related information which the legislature recognizes may

be kept confidential and the desirability of resolving disputes by agreement rather than litigation." The school board's

reasons were sufficiently specific, albeit not legally valid in the context of this case.

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Journal/Sentinel, Inc. v. School Bd. of School Dist. of Shorewood, 186 Wis.2d 443 (1994) 521 N.W.2d 165, 94 Ed. Law Rep. 478, 22 Media L. Rep. 2245 --------------···--------·······-············ ------------------

4 Section 19.32(2), STATS., provides in full:

"Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is

recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an

authority. "Record" includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs,

films, recordings, tapes (including computer tapes), computer printouts and optical disks. "Record" does not include

drafts, notes, preliminary computations and like materials prepared for the originator's personal use or prepared by the

originator in the name of a person for whom the originator is working; materials which are purely the personal property

of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or

bequest; and published materials in the possession of an authority other than a public library which are available for

sale, or which are available for inspection at a public library.

5 Section 19.32(1), STATS., provides in full:

"Authority" means any of the following having custody of a record: a state or local office, elected official, agency,

board, commission, committee, council, department or public body corporate and politic created by constitution, law,

ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and

entertainment corporation created under ch. 232; any public purpose corporation, as defined in s. 181. 79(1 ); any court

of law; the assembly or senate; a nonprofit corporation which receives more than 50% of its funds from a county or a

municipality, as defined in s. 59.001 (3), and which provides services related to public health or safety to the county or

municipality; a nonprofit corporation operating an ice rink which is owned by the state; or a formally constituted subunit of any of the foregoing.

6 The court thus rejected an argument to the contrary in the amicus brief submitted by the Wisconsin Counties Association.

Brief for amicus Wisconsin Counties Assn. at 4-6, Fox v. Bock, 149 Wis.2d 403,438 N.W.2d 589 (1989) (No. 87-1853).

As seen from our discussion of Fox, below, the court focussed on whether the report was a "draft" as that word is used in § 19.32(2), STATS.

7 Fed.R.Evid. 801(d)(2)(D) provides: "A statement is not hearsay if ... [!]he statement is offered against a party and is ...

a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."

8 The brief submitted to us by the school board appellants argues that "a clear and unambiguous pledge of confidentiality

was made" at Moore's request, and that Moore's suit "could not have been settled ... absent the pledge." The record

references given to us by the school board appellants as support for this assertion are less clear than the brief implies.

At the first reference, Lewis testified at her deposition: "I believe that we had agreed to confidentiality regarding-I may

be mistaken." After an off-the-record discussion, the publisher's attorney asked the following question: "Was the idea

of making the terms confidential an idea that was requested by Dr. Moore and her attorney, or was that requested by

the School Board?" Lewis replied: "By Dr. Moore and her attorney." At the other record reference, the school board

attorney's deposition testimony merely states that "the document signed by the attorneys" (presumably the "Memorandum

of Understanding") contained terms of the settlement and a confidentiality agreement.

9 Youmans' example was drawn from City & County of San Francisco v. Superior Court, 38 Cal.2d 156,238 P.2d 581

(1951) (applying a "public interest" exception to the mandate that public records be disclosed), where the information

would not have been given to the government agency unless confidentiality was promised. See id., 238 P.2d at 584.

10 There are circumstances where secrecy serves the public interest. See, e.g.,§ 134.90, STATS. (trade secrets); see also § 19.36, STATS.

11 The school board appellants have not briefed the argument based on the work-product doctrine. It is thus abandoned.

See Reiman Assocs. v. RIA Advertising, 102 Wis.2d 305, 306 n. 1, 306 N. W.2d 292, 294 n. 1 (Ct.App.1981 ).

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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APPENDIX "G"

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42.56.010. Definitions, WA ST 42.56.010

West's Revised Code of Washington Annotated Title 42. Public Officers and Agencies (Refs & Annas)

Chapter 42.56. Public Records Act (Refs & Annas)

West's RCWA 42.56.010

42.56.010. Definitions

Effective: July 23, 2017 Currentness

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(I) "Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.

(2) "Person in interest" means the person who is the subject of a record or any representative designated by that person, except that if that person is under a legal disability, "person in interest" means and includes the parent or duly appointed legal representative.

(3) "Public record" includes any writing containing information relating to the conduct of govermnent 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. For the office of the secretary of the senate and the office of the chief clerk of the house ofrepresentatives, public records means legislative records as defined in RCW 40.14.100 and also means the following: All budget and financial records; personnel leave, travel, and payroll records; records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by any official action of the senate or the house of representatives. This definition does not include records that are not otherwise required to be retained by the agency and are held by volunteers who:

(a) Do not serve in an administrative capacity;

(b) Have not been appointed by the agency to an agency board, commission, or internship; and

(c) Do not have a supervisory role or delegated agency authority.

(4) "Writing" means 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.

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42.56.010. Definitions, WA ST 42.56.010

Credits

[2017 c 303 § 1, eff. July 23, 2017; 2010 c 204 § 1005, eff. Jan. 1, 2012; 2007 c 197 § 1, eff. July 22, 2007; 2005 c 274 § 101, eff. July 1, 2006.]


West's RCWA 42.56.010, WA ST 42.56.010

Current with all effective legislation from the 2018 Regular Session of the Washington Legislature.

End of Document 'b· 20 l8 Thomson Reuters. No claim to original U.S. Government Works.

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APPENDIX "H"

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19.32. Definitions, WI ST 19.32

West's Wisconsin Statutes Annotated Organization of State Government (Ch. 13 to 22)

Chapter 19. General Duties of Public Officials Subchapter II. Public Records and Property (Refs & Annas)

As used in ss. 19.32 to 19.39:

W.S.A. 19.32

19.32. Definitions

Effective: March 2, 2016 Currentness

(1) "Authority" means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, cormcil, department or public body corporate and politic created by the constitution or

by any law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center

sports and entertainment corporation; a special purpose district; any court of law; the assembly or senate; a nonprofit

corporation which receives more than 50 percent of its funds from a county or a municipality, as defined ins. 59.001(3), and which provides services related to public health or safety to the county or municipality; a university police department under s. 175.42; or a formally constituted subunit of any of the foregoing.

(lb) "Committed person" means a person who is committed under ch. 51, 971, 975 or 980 and who is placed in an inpatient treatment facility, during the period that the person1s placement in the inpatient treatment facility continues.

(I bd) "Elective official" means an individual who holds an office that is regularly filled by vote of the people.

(I bg) "Employee" means any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority.

(le) "Incarcerated person" means a person who is incarcerated in a penal facility or who is placed on probation and

given confinement under s. 973.09(4) as a condition of placement, during the period of confinement for which the person has been sentenced.

(Id) "Inpatient treatment facility" means any of the following:

(a) A mental health institute, as defined ins. 51.01 (12).

(c) A facility or unit for the institutional care of sexually violent persons specified under s. 980.065.

(d) The Milwaukee County mental health complex established under s. 51.08.

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(Ide) "Local governmental unit" has the meaning given ins. 19.42(7u).

(ldm) "Local public office" has the meaning given ins. 19.42(7w), and also includes any appointive office or position of a local governmental unit in which an individual serves as the head of a department, agency, or division of the local

governmental unit, but does not include any office or position filled by a municipal employee, as defined ins. 11 I. 70(l)(i).

(le) "Penal facility" means a state prison under s. 302.01, county jail, county house of correction or other state, county or municipal correctional or detention facility.

(Im) "Person authorized by the individual" means the parent, guardian, as defined in s. 48.02(8), or legal custodian, as defined in s. 48.02(11), of an individual who is a child, as defined in s. 48.02(2); the guardian of an individual adjudicated incompetent in this state; the personal representative or spouse of an individual who is deceased; or any person authorized, in writing, by an individual to act on his or her behalf.

(Ir) "Personally identifiable information" has the meaning specified ins. 19.62(5).

(2) "Record" means any material on which written, drawn, printed, spoken, visual, or electromagnetic information or

electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has

been created or is being kept by an authority. "Record" includes, but is not limited to, handwritten, typed, or printed pages, maps, charts, photographs, films, recordings, tapes, optical discs, and any other medium on which electronically

generated or stored data is recorded or preserved. "Record" does not include drafts, notes, preliminary computations,

and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for

whom the originator is working; materials that are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent, or bequest; and published materials in the possession of an authority other than a public library that are available for sale, or that are available for inspection at a public library.

(2g) "Record subject" means an individual about whom personally identifiable information is contained in a record.

(3) "Requester" means any person who requests inspection or copies of a record, except a committed or incarcerated

person, unless the person requests inspection or copies of a record that contains specific references to that person or

his or her minor children for whom he or she has not been denied physical placement under ch. 767, and the record is otherwise accessible to the person by law.

(3m) "Special purpose district" means a district, other than a state governmental unit or a county, city, village, or town,

that is created to perform a particular function and whose geographic jurisdiction is limited to some portion of this state.

(4) "State public office" has the meaning given ins. 19.42(13), but does not include a position identified ins. 20.923(6) (f) to (gm).

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Credits <<For credits, see Historical Note field.>>

Editors' Notes

LEGISLATIVE COUNCIL NOTES--2003

This Section:

1. Creates a definition of the term "employee" to mean any public sector or private sector employee, other than an individual holding a local public office or a state public office.

2. Creates a definition of the term "local public office" that incorporates the definition of the term "local public office" contained ins. 19.42(7w), stats. The latter statutory provision states that a "local public office" means any of the following offices:

a. An elective office of a local governmental unit.

b. A county administrator or administrative coordinator or a city or village manager.

c. An appointive office or position of a local governmental unit in which an individual serves for a specified term,

except a position limited to the exercise of ministerial action or a position filled by an independent contractor.

d. The position of member of the board of directors of a local exposition district not serving for a specified term.

e. An appointive office or position of a local government which is filled by the governing body of the local government or the executive or administrative head of the local government and in which the incumbent serves at the pleasure of the appointing authority, except a clerical position, a position limited to the exercise of ministerial action, or a position filled by an independent contractor.

Section 19.42(7w), stats., ands. 19.32(ldm), stats., as created in this bill, specifically refer to certain appointive offices or positions of a local governmental unit. The obvious purpose is to provide that an individual who holds an upper level governmental office or position and who has broad discretionary authority may not seek judicial review in order to prevent the release of records that name that individual. The description of an appointive office or position of a local governmental unit contained in s. 19.32(1dm), stats., is broader than the description contained ins. 19. 42(7w), stats. For example, unlike the definition contained ins. 19.42(7w),

stats., the definition in the proposed statute includes the offices of police chief and fire chief, positions whose incumbents do not serve for a statutorily specified term, may be removed only for cause, and are not appointed by the governing body of a local government. Section 111. 70(1 )(i), stats., defines the term "municipal employee" to mean an individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial, or executive employee.

3. Creates a definition of the term "record subject" to mean an individual about whom personally identifiable information is contained in a record.

4. Creates a definition of the term "state public office" to mean the numerous agency positions listed in ss. 19.42(13) and 20.923, stats. However, the provision specifically excludes from the definition a position in the Legislative Council staff, the Legislative Fiscal Bureau, and the Legislative Reference Bureau. Thus, a person

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in one of these positions may have a right of judicial review before a record in which the person is named may

be released.


W. S. A. 19.32, WI ST 19.32 Current through 2017 Act 367, published April 18, 2018.

End of Document t: 2018 Thomson Reuters :-.:o claim to orig1md U.S. Government \Vorks.

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APPENDIX "I"

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19.36. Limitations upon access and withholding, WI ST 19.36

West's Wisconsin Statutes Annotated Organization of State Government (Ch. 13 to 22)

Chapter 19. General Duties of Public Officials Subchapter II. Public Records and Property (Refs & Annos)

W.S.A. 19.36

19.36. Limitations upon access and withholding

Effective: September 23, 2017 Currentness

(1) Application of other laws. Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s. 19.35(1), except that any portion of that record which contains public information is open to public inspection as provided in sub. (6).

(2) Law enforcement records. Except as otherwise provided by law, whenever federal law or regulations require or as a condition to receipt of aids by this state require that any record relating to investigative information obtained for law enforcement purposes be withheld from public access, then that information is exempt from disclosure under s. 19.35(1).

(3) Contractors' records. Each authority shall make available for inspection and copying under s. 19.35(1) any record produced or collected nnder a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35(l)(am).

(4) Computer programs and data. A computer program, as defined ins. 16.971(4)(c), is not subject to examination or copying under s. 19.35(1), but the material used as input for a computer program or the material produced as a product of the computer program is subject to the right of examination and copying, except as otherwise provided ins. 19.35 or this section.

(5) Trade secrets. An authority may withhold access to any record or portion of a record containing information qualifying as a trade secret as defined ins. 134.90(l)(c).

(6) Separation of information. If a record contains information that is subject to disclosure under s. 19.35(l)(a) or(am) and information that is not subject to such disclosure, the authority having custody of the record shall provide the information that is subject to disclosure and delete the information that is not subject to disclosure from the record before release.

(7) Identities of applicants for public positions. (a) In this subsection:

I. "Final candidate" means each applicant who is seriously considered for appointment or whose name is certified for appointment, and whose name is submitted for final consideration to an authority for appointment, to any of the following:

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a. A state position that is not a position in the classified service and that is not a position in the University of Wisconsin System.

b. A local public office.

c. The position of president, vice president, or senior vice president of the University of Wisconsin System; the position of chancellor of an institution; or the position of the vice chancellor who serves as deputy at each institution.

2. "Final candidate" includes all of the following, but only with respect to the offices and positions described under subd. 1. a. and b.:

a. Whenever there are at least 5 applicants for an office or position, each of the 5 applicants who are considered the most qualified for the office or position by an authority.

b. Whenever there are fewer than 5 applicants for an office or position, each applicant.

c. Whenever an appointment is to be made from a group of more than 5 applicants considered the most qualified for an office or position by an authority, each applicant in that group.

3. "Institution" has the meaning given ins. 36.05(9).

(b) Every applicant for a position with any authority may indicate in writing to the authority that the applicant does not wish the authority to reveal his or her identity. Except with respect to an applicant whose name is certified for appointment to a position in the state classified service or a final candidate, if an applicant makes such an indication in writing, the authority shall not provide access to any record related to the application that may reveal the identity of the applicant.

(8) Identities of law enforcement informants. (a) In this subsection:

1. "Informant" means an individual who requests confidentiality from a law enforcement agency in conjunction with providing information to that agency or, pursuant to an express promise of confidentiality by a law enforcement agency or under circumstances in which a promise of confidentiality would reasonably be implied, provides information to a law enforcement agency or, is working with a law enforcement agency to obtain information, related in any case to any of the following:

a. Another person who the individual or the law enforcement agency suspects has violated, is violating or will violate a federal law, a law of any state or an ordinance of any local government.

b. Past, present or future activities that the individual or law enforcement agency believes may violate a federal law, a law of any state or an ordinance of any local government.

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19.36. limitations upon access and withholding, WI ST 19.36

2. "Law enforcement agency" has the meaning given in s. 165.83(1 )(b ), and includes the department of corrections.

(b) If an authority that is a law enforcement agency receives a request to inspect or copy a record or portion of a record

under s. 19.35(l)(a) that contains specific information including but not limited to a name, address, telephone number, voice recording or handwriting sample which, if disclosed, would identify an informant, the authority shall delete the

portion of the record in which the information is contained or, if no portion of the record can be inspected or copied

without identifying the informant, shall withhold the record unless the legal custodian of the record, designated under s.

19.33, makes a determination, at the time that the request is made, that the public interest in allowing a person to inspect,

copy or receive a copy of such identifying information outweighs the harm done to the public interest by providing such access.

(9) Records of plans or specifications for state buildings. Records containing plans or specifications for any state-owned or state-leased building, structure or facility or any proposed state-owned or state-leased building, structure or facility are

not subject to the right of inspection or copying under s. 19.35(1) except as the department of administration otherwise provides by rule.

(10) Employee personnel records. Unless access is specifically authorized or required by statute, an authority shall not

provide access under s. 19.35(1) to records containing the following information, except to an employee or the employee's

representative to the extent required under s. 103.13 or to a recognized or certified collective bargaining representative

to the extent required to fulfill a duty to bargain under ch. 111 or pursuant to a collective bargaining agreement under ch. 111:

(a) Information maintained, prepared, or provided by an employer concerning the home address, home electronic mail

address, home telephone number, or social security number of an employee, unless the employee authorizes the authority to provide access to such information.

(b) Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.

( c) Information pertaining to an employee's employment examination, except an examination score if access to that score is not otherwise prohibited.

( d) Information relating to one or more specific employees that is used by an authority or by the employer of

the employees for staff management planning, including performance evaluations, judgments, or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees.

(11) Records of an individual holding a local public office or a state public office. Unless access is specifically authorized

or required by statute, an authority shall not provide access under s. 19.35(1) to records, except to an individual to the extent required under s. 103.13, containing information maintained, prepared, or provided by an employer concerning

the home address, home electronic mail address, home telephone number, or social security number of an individual who

holds a local public office or a state public office, unless the individual authorizes the authority to provide access to such

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information. This subsection does not apply to the home address of an individual who holds an elective public office or to the home address of an individual who, as a condition of employment, is required to reside in a specified location.

(13) Financial identifying information. An authority shall not provide access to personally identifiable information that contains an individual's account or customer number with a financial institution, as defined ins. 134.97(l)(b), including credit card numbers, debit card numbers, checking account numbers, or draft account nwnbers, unless specifically required by law.

Credits

<<For credits, see Historical Note field.>>

Editors' Notes

COMMENTS--1985 ACT 236, § 2

Wisconsin law currently permits the withholding of access to any record or portion of a record under the public records statute if it contains information qualifying as a common law trade secret. This amendment [of subsec. (5)] deletes the reference to common law trade secret and substitutes a cross-reference to the definition of trade secret in this bill ins. 134.90(l)(c).

LEGISLATIVE COUNCIL NOTES--2003

Section 19.36(7), stats., generally provides that, if an applicant for a position indicates in writing a desire for confidentiality, an authority may not provide access to any record relating to the application that may reveal the applicant's identity. This general provision does not apply to a final candidate for any local pnblic office "as defined ins. 19.42(7w)". Because the bill expands the definition of the term "local public office" in s.

19.32(ldm), stats., as created in this bill, this Section applies the expanded definition to the issue of confidential applications for purposes of consistency.


W. S. A. 19.36, WI ST 19.36 Current through 2017 Act 367, published April 18, 2018.

End of Document J:;· 201S Tbon1:,on Reuters, No claim to original l 1.S. Government Works

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