|
Court of
Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number:
18830-2-III
Title of Case: Gina Tiberino
v.
Spokane County, et al
File Date: 12/14/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Spokane County
Docket No: 99-2-00794-2
Judgment or order under review
Date filed: 10/15/1999
Judge signing: Hon. Linda G. Tompkins
JUDGES
------
Authored by Frank L. Kurtz
Concurring: John A. Schultheis
Dennis J. Sweeney
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Mary E. Schultz
Attorney At Law
Ste 660
818 West Riverside
Spokane, WA 99201
Counsel for Respondent(s)
James P. Emacio
Cnty Pros Offc Civil Div
1115 W Broadway Ave
Spokane, WA 99260-2051
Duane M. Swinton
Witherspoon Kelley Davenport & Toole
1100 Us Bank Bldg
W. 422 Riverside
Spokane, WA 99201-0302
Laurel H. Siddoway
Randall & Danskin PS
1500 Seafirst Fin Ctr
601 W Riverside Ave
Spokane, WA 99201
IN THE COURT OF
APPEALS OF THE STATE OF WASHINGTON
GINA TIBERINO,
) No. 18830-2-III
) No. 18870-1-III
Appellant,
)
) Division Three
v.
) Panel Six
)
SPOKANE COUNTY, OFFICE OF THE ) PUBLISHED OPINION
PROSECUTING ATTORNEY; COWLES )
PUBLISHING COMPANY; and SPOKANE )
TELEVISION,
INC.,
)
)
Respondents.
) FILED
KURTZ, C.J. - Gina Tiberino's
employment as a secretary for the Spokane County Prosecutor's Office
was terminated based on her unsatisfactory work performance,
including her use of e-mail for personal matters. Ms. Tiberino
threatened the County with a lawsuit. In response, the County
printed all e-mails Ms. Tiberino sent or received from her work
computer. The County subsequently received public records requests
from Cowles Publishing Company and Spokane Television, Inc., for the
e-mails. The court denied Ms. Tiberino an injunction preventing
release of the e-mails. Ms. Tiberino appeals contending: (1) the
court erred by finding Ms. Tiberino's e-mails were public records,
(2) the court erred by finding the e-mails were not exempt from
disclosure as personal information, (3) disclosure of the e-mails
constituted a violation of Ms. Tiberino's right to privacy, and (4)
Ms. Tiberino is entitled to her attorney fees. We agree with the
superior court that the e-mails are 'public records' that come
within the scope of the public records act (the Act). But we further
conclude that the e-mails were exempt from disclosure as personal
information. For that reason, we reverse the order of the superior
court.
FACTS
On August 26, 1998, Gina Tiberino was hired as a secretary in the
Prosecuting Attorney's Office and assigned to the Special Assault
Unit. Spokane County provided Ms. Tiberino with a personal computer
equipped with electronic communications applications (e-mail). As
part of her employee orientation, Ms. Tiberino attended a program
that advised employees about their use of electronic communications.
Employees were told that (i) Spokane County Information Systems
Department had the capability of monitoring all e-mail; (ii) not to
put anything on e-mail that they would not want on the front page of
the newspaper, and (iii) County equipment was not for personal use.
These admonitions were consistent with e-mail policies formally
adopted by both the County and the Prosecutor.
In the early part of October 1998, the
Prosecutor's Office Administrator, Travis Jones, received complaints
from Ms. Tiberino's co-workers that she was using her computer to
send personal e-mail via the Internet. One co-worker indicated that
excessive amounts of personal e-mail were being sent by Ms. Tiberino
and that the e-mail contained coarse and vulgar language. On October
13, 1998, Mr. Jones observed that when Ms. Tiberino left for the
day, she failed to turn off her computer. As a result of the
complaints from her co-workers, he viewed her 'sent' mail folder.
Mr. Jones did not read the contents of
all Ms. Tiberino's e-mail, but only randomly selected e-mail
messages to determine whether or not they were work-related or of a
personal nature. The 'sent' mail folder revealed that approximately
214 e-mail messages had been sent. Of those messages, 200 were sent
via the Internet to Ms. Tiberino's sister or mother. Approximately
10 to 15 appeared to be work-related. Mr. Jones recommended to Ms.
Tiberino's supervisor that she be given an Event Report reminding
her that County computers were not to be used for personal business
and informing her that the volume of her personal e-mail strongly
suggested that she was compromising her job responsibilities.
On November 10, 1998, Ms. Tiberino was
discharged for unsatisfactory work performance. At the time of her
discharge, Ms. Tiberino was told that she had alienated co-workers
with her preoccupation with personal issues. Specifically, she was
told that her co-workers resented performing her assigned job
responsibilities while she was spending her time using the e-mail
for nonbusiness purposes.
Approximately one month before Ms.
Tiberino was discharged, she had advised her supervisor that over
the prior weekend, she had been raped. Five weeks later, she was
discharged from her position with the Special Assault Unit due to
her preoccupation with personal issues.
On December 1, 1998, Ms. Tiberino's
attorney sent a letter to the Prosecutor's Office claiming that Ms.
Tiberino had been unlawfully discharged and demanding reinstatement.
The letter threatened litigation. Ms. Tiberino ultimately filed a
complaint with the Washington State Human Rights Commission.
As a result of Ms. Tiberino's
threatened litigation, the Prosecutor's Office printed all e-mails
in Ms. Tiberino's 'sent' mail folder. The 'sent' mail folder now
contained 551 sent items. Of those, 467 were personal messages sent
to a total of five addresses. Each of the 467 messages were
time-stamped over a 40 working-day time frame between September 18,
1998, and November 10, 1998.
On December 16, 1998, a reporter for
Cowles Publishing Company made a public record request to the
Prosecutor's Office requesting release and copies of all e-mail
correspondence received and generated by Ms. Tiberino. Thereafter,
the Prosecutor's Office advised Ms. Tiberino's attorney that the
3,805 paginated/printed e-mails, with 147 pages redacted in whole or
in part, would be made available to the newspaper. However, Ms.
Tiberino was afforded sufficient time under RCW 42.17.330 to obtain
injunctive relief to prohibit the release of her e-mails.
At Ms. Tiberino's request, the
superior court issued a temporary restraining order preventing the
Prosecutor from releasing her e-mail. The Cowles Publishing Company
intervened in the litigation but later filed pleadings requesting
that it be dismissed from the lawsuit. Spokane Television, Inc.,
subsequently intervened. Following oral argument and an in camera
review performed at the request of the Prosecutor, the superior
court held that Ms. Tiberino's e-mail communications were public
records under RCW 42.17.020(36) and, except for the 147 redacted
pages, were subject to disclosure to Spokane Television.
Ms. Tiberino's motion for
reconsideration was denied. Ms. Tiberino filed a second motion for
reconsideration and filed an appeal to the Washington Supreme Court.
When the second motion for reconsideration was denied, Ms. Tiberino
filed this appeal and moved for voluntary withdrawal of the Supreme
Court appeal and transfer of the case to this court. The Supreme
Court appeal was consolidated with this case.
ANALYSIS
Did the court err by concluding that Ms. Tiberino's e-mails were
public records?
Because this case presents a question
of law that was decided by the trial court solely on the basis of
documentary evidence and legal arguments, review is de novo. Amren
v. City of Kalama, 131 Wn.2d 25, 32, 929 P.2d 389 (1997); Spokane
Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 35-36, 769 P.2d
283 (1989). The party seeking to prevent disclosure-- in this case
Ms. Tiberino--bears the burden of proof. Spokane Police Guild, 112
Wn.2d at 35. In reviewing an agency's action with regard to a public
disclosure request, we must consider the public records act's policy
that 'free and open examination of public records is in the public
interest, even though such examination may cause inconvenience or
embarrassment{.}' RCW 42.17.340(3). To fulfill the statutory
purpose, courts are to liberally construe the Act's disclosure
provisions and narrowly construe its exemptions. Limstrom v.
Ladenburg, 136 Wn.2d 595, 604, 963 P.2d 869 (1998) (citing RCW
42.17.251); Progressive Animal Welfare Soc'y (PAWS) v. University of
Washington, 125 Wn.2d 243, 251, 884 P.2d 592 (1994).
Generally, the Act requires disclosure
of public records by governmental entities upon request unless
exempted. Amren, 131 Wn.2d at 31.
A 'public record,' subject to
disclosure under the Act includes {1} any writing {2} containing
information relating to the conduct of government or the performance
of any governmental or proprietary function {3} prepared, owned,
used, or retained by any state or local agency regardless of
physical form or characteristics.
Confederated Tribes v. Johnson, 135
Wn.2d 734, 746, 958 P.2d 260 (1998) (quoting RCW 42.17.020(36)). |
