Washington Law Review

Comment

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

March 30, 2015 | 90 Wash. L. Rev. 545

Abstract: The Washington Public Records Act (PRA or "the Act") is a wide-ranging law that heavily weighs in favor of public disclosure of government processes. Initially enacted as a citizen initiative in 1972, the Act has many beneficial uses. For example, it provides insight into a local government’s decision-making process and ensures that citizens have access to their own government. However, the PRA’s potential to be used to invade personal privacy raises significant constitutional concerns. When an employee in possession of a public record invokes the protection of article I, section 7 of the Washington State Constitution, which protects an individual’s right to privacy, and refuses to consent to, for example, inspection of the employee’s personal computer, the agency’s obligation to produce the record should be at an end. This Comment argues that neither an agency nor a court may compel production of a public employee’s private electronic device for inspection under the PRA because employee privacy interests in the device are protected under article I, section 7 of the Washington State Constitution. The PRA does not provide the necessary "authority of law" to justify such an invasion. While this constitutional protection may, in certain situations, frustrate the efforts of requestors to access the workings of their government agencies, it also provides the public employees of Washington some measure of comfort that their private affairs are entitled to the same level of constitutional protection as their fellow citizens. Ultimately, the legislature should amend the PRA to clarify the obligations of agencies and to strike an appropriate balance between employee privacy and governmental transparency.

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