What is a Public Record?

Sometimes the simplest questions can be the hardest. I get asked in nearly every class "what is a public record?" And with today's technology options, I'm not surprised. 

A 'public record' is defined by RCW 42.56.010(3) as follows:

“Public record” includes 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.

This RCW can be broken down into a handy acronym. P-O-U-R

P repared

O wned

U sed

R etained

If a record was prepared (created) within the scope of public employment, if a record is owned by an agency, if a record was used by an agency, or if the record is simply retained by the agency, it is public.

With the proliferation of new technology, this can extend to cell phones, social media accounts, GPS data, browsing history, etc. The possibilities are endless.

Additionally, the courts have ruled that public records are public regardless of where they reside.

Records that an agency employee prepares, owns, uses, or retains on a private cell phone can be ‘public records’ of the agency under RCW 42.56.010(3)

See Nissen v Pierce County (2015) and West v Vermillion (2016)

But what about privacy? The courts recognize that just because a record may mention work, doesn't mean it is a public record. 

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.

WA Supreme Court, Nissen v Pierce County (2016)

So where does that leave us? In this modern age, where our mobile devices and social media accounts are an extension of ourselves, the Public Records Act cannot not be circumvented by using a private device. Public employees, agencies, and elected officials must be aware that if they are acting within the scope of their employment, the PRA applies. 

- Whitney