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Ms. Tiberino does not dispute that the
e-mail records are writings and that they are prepared, owned, used
or retained by a state agency. She contends that the e-mails are not
'public records' because the second element of the definition of
public record is not met. She argues that the e-mails do not contain
any information relating to the conduct of governmental or
proprietary function.
In answering the threshold inquiry
whether a document is a public record, the courts have broadly
interpreted this second element of the statutory definition of
public record. For example, in Dawson v. Daly, 120 Wn.2d 782, 789,
845 P.2d 995 (1993), the court held that documents compiled by a
prosecutor for use in cross-examining a defense expert in child
sexual abuse cases were documents relating to the performance of
prosecutorial functions, were used by the prosecutor's office in
carrying out those governmental functions and, therefore, were
public records. In Servais v. Port of Bellingham, 127 Wn.2d 820,
828, 904 P.2d 1124 (1995), the court concluded that research data--a
cash flow analysis prepared by a consulting firm for the purposes of
planning by the Port--was a writing which related to the conduct and
performance of a governmental function and, thus, was a public
record. In Oliver v. Harborview Medical Center, 94 Wn.2d 559, 566,
618 P.2d 76, 26 A.L.R.4th 692 (1980), the court held that medical
records of a patient treated at a public hospital were public
records. The court reasoned that the records contained information
of a public nature, 'i.e., administration of health care services,
facility availability, use and care, methods of diagnosis, analysis,
treatment and costs, all of which . . . relate to the performance of
a governmental or proprietary function.' Id. In Yakima Newspapers,
Inc. v. City of Yakima, 77 Wn. App. 319, 324, 890 P.2d 554 (1995),
the court held that a settlement agreement containing information
about the City's termination of an employee was a public record
because termination is a proprietary function. See also Limstrom v.
Ladenburg, 85 Wn. App. 524, 529, 933 P.2d 1055 (1997), rev'd, 136
Wn.2d 595 (1998) (criminal investigation files held by prosecutor
and prosecutor's personnel files were public records).
Ms. Tiberino's excessive personal use
of e-mail was a reason for her discharge. The County printed the
e-mails in preparation for litigation over her termination, a
proprietary function. Consequently, they contain information
relating to the conduct of a governmental or proprietary function.
The second element is met and the e-mails are 'public records'
within the scope of the public records act.
Did the court err by concluding that
the e-mails were not exempt from disclosure as personal information?
'Once documents are determined to be
within the scope of the {Act}, disclosure is required unless a
specific statutory exemption is applicable.' Newman v. King County,
133 Wn.2d 565, 571, 947 P.2d 712 (1997) (citing Dawson, 120 Wn.2d at
789; RCW 42.17.260(1)). Ms. Tiberino contends that even if her
e-mails are public records, they are exempt from disclosure under
RCW 42.17.310(1)(b).
RCW 42.17.310(1)(b) exempts from
disclosure:
Personal information in files maintained for employees, appointees,
or elected officials of any public agency to the extent that
disclosure would violate their right to privacy.
A person's right to privacy is
violated 'only if disclosure of information about the person: (1)
Would be highly offensive to a reasonable person, and (2) is not of
legitimate concern to the public.' RCW 42.17.255. Under these
provisions, the use of a test that balances the individual's privacy
interests against the interest of the public in disclosure is not
permitted. Brouillet v. Cowles Publ'g Co., 114 Wn.2d 788, 798, 791
P.2d 526 (1990). Even if the disclosure of the information would be
offensive to the employee, it shall be disclosed if there is a
legitimate or reasonable public interest in its disclosure. Dawson,
120 Wn.2d at 797-98.
Highly Offensive.
'{T}he right of privacy applies 'only to the intimate details of
one's personal and private life{.}'' Dawson, 120 Wn.2d at 796
(quoting Spokane Police Guild, 112 Wn.2d at 38). Dawson cites with
approval Cowles Publ'g Co. v. State Patrol, 44 Wn. App. 882, 724
P.2d 379 (1986), rev'd on other grounds by, 109 Wn.2d 712, 748 P.2d
597 (1988), which held disclosure of complaints filed against law
enforcement officers in the performance of their public duties,
although may be embarrassing, is not highly offensive. Dawson, 120
Wn.2d at 795-96. In Dawson, the court discussed whether the
disclosure of the performance evaluation would be highly offensive
to a reasonable person as follows: '{e}mployee evaluations qualify
as personal information that bears on the competence of the subject
employees.' Id. at 797. Therefore, 'disclosure of performance
evaluations, which do not discuss specific instances of misconduct,
is presumed to be highly offensive within the meaning of RCW
42.17.255.' Dawson, 120 Wn.2d at 797.
Ms. Tiberino argues that the purely
personal nature of her e-mails to her mother, sister and friends
makes it clear that public disclosure would be highly offensive to
any reasonable person. Ms. Tiberino's e-mails contain intimate
details about her personal and private life and do not discuss
specific instances of misconduct. ''{A}n individual has a privacy
interest whenever information which reveals unique facts about those
named is linked to an identifiable individual.'' Cowles, 44 Wn. App.
at 897 (quoting In re Rosier, 105 Wn.2d 606, 613, 717 P.2d 1353
(1986)). '{T}he basic purpose and policy of RCW 42.17 was 'to allow
public scrutiny of government, rather than to promote scrutiny of
particular individuals who are unrelated to any governmental
operation.'' Cowles, 44 Wn. App. at 897- 98 (quoting Rosier, 105
Wn.2d at 611). Any reasonable person would find disclosure of Ms.
Tiberino's e-mails to be highly offensive. Legitimate Public
Concern.
For the e-mails to be exempt from
disclosure, Ms. Tiberino must also show that the public has no
legitimate concern requiring release of the e-mails. Ms. Tiberino
contends that the disclosure of private e-mails could decrease the
efficiency and morale of government employees. The County argues
that the County employees were on notice that the computers should
not be used for personal business, so the disclosure of their e-mail
would not affect the efficient administration of government.
To be 'legitimate,' the public
interest must be 'reasonable.' Dawson, 120 Wn.2d at 798. Some
balancing of the public interest in disclosure against the public
interest in efficient administration of government is appropriate.
Id. The purpose of the Act is to keep the public informed so it can
control and monitor the government's functioning. See RCW 42.17.251.
Generally, records of governmental
agency expenditures for employee salaries, including vacation and
sick leave, and taxpayer-funded benefits are of legitimate public
interest and therefore not exempt from disclosure. 'Certainly, there
exists a reasonable concern by the public that government conduct
itself fairly and use public funds responsibly.' Yakima Newspapers,
77 Wn. App. at 328 (finding that terms of a retirement agreement
between the City of Yakima and the City's fire chief is of public
concern and would not have chilling effect on future settlement
agreements).
In Spokane Research & Defense Fund
v. City of Spokane, 99 Wn. App. 452, 457, 994 P.2d 267 (2000), this
court found there was a legitimate public interest in disclosure of
the city manager's performance evaluation. This court reasoned that
the city manager is a pubic figure and the city council used the
information in the evaluation in making its determination to retain
him. Thus, the public had a legitimate interest in the evaluation.
However, these cases differ from Ms.
Tiberino's in that in Spokane Research and Yakima Newspapers, the
actual content of the disclosed information was of public interest.
The content of Ms. Tiberino's e-mails is personal and is unrelated
to governmental operations. Certainly, the public has an interest in
seeing that public employees are not spending their time on the
public payroll pursuing personal interests. But it is the amount of
time spent on personal matters, not the content of personal e-mails
or phone calls or conversations, that is of public interest. The
fact that Ms. Tiberino sent 467 e-mails over a 40 working-day time
frame is of significance in her termination action and the public
has a legitimate interest in having that information. But what she
said in those e-mails is of no public significance. The public has
no legitimate concern requiring release of the e-mails and they
should be exempt from disclosure.
Is Ms. Tiberino entitled to attorney
fees?
Ms. Tiberino contends she is entitled to an award of attorney fees
because the County acted in bad faith by accessing and printing her
private e-mails. She also contends she is entitled to attorney fees
under the private attorney general exception because she should not
be required to alone bear the expense of litigating these important
public policy issues.
The public records act provides that a
person who prevails in an action to inspect a public record 'shall
be awarded all costs, including reasonable attorney fees, incurred
in connection with such legal action.' RCW 42.17.340(4). The courts
have interpreted this section to be inapplicable to a case in which
an individual--rather than the agency-- opposes disclosure of the
records, and where the action was brought to prevent, rather than
compel, disclosure. Confederated Tribes v. Johnson, 135 Wn.2d 734,
757, 958 P.2d 260 (1998); Yakima Newspapers, Inc. v. City of Yakima,
77 Wn. App. 319, 329, 890 P.2d 554 (1995). This interpretation is
consistent with the purpose of the attorney fees provision, which is
to encourage broad disclosure and to deter agencies from improperly
denying access to public records. Lindberg v. Kitsap County, 133
Wn.2d 729, 746, 948 P.2d 805 (1997).
This provision does not authorize an
award of attorney fees in an action brought by a private party,
pursuant to RCW 42.17.330 to prevent disclosure of public records
held by an agency where the agency has agreed to release the records
but is prevented from doing so by court order.
Confederated Tribes, 135 Wn.2d at 757.
Even if Ms. Tiberino prevails against the County by obtaining an
injunction pursuant to RCW 42.17.330, she is not entitled to
attorney fees.
Ms. Tiberino has also failed to show
she is entitled to attorney fees pursuant to equitable principles.
There is no showing that the County acted in 'bad faith' by trying
to comply with the newspaper's request for copies of the e-mail that
the County printed as proof of Ms. Tiberino's excessive attention to
personal matters. Ms. Tiberino also has not shown that she is
entitled to attorney fees on the equitable grounds of 'private
attorney general' actions.
'{T}his doctrine provides that a
private attorney general may be awarded attorney fees whenever the
successful litigant (1) incurs considerable economic expense, (2) to
effectuate an important legislative policy, (3) which benefits a
large class of people.'
Miotke v. City of Spokane, 101 Wn.2d
307, 340, 678 P.2d 803 (1984) (quoting Pub. Util. Dist. No. 1 v.
Kottsick, 86 Wn.2d 388, 392, 545 P.2d 1 (1976)). Ms. Tiberino has
not shown that she effectuated an important legislative policy to
benefit a large class of people. Ms. Tiberino should not be awarded
her attorney fees.
Reversed.
Kurtz, C.J.
WE CONCUR: Schultheis, J.
Sweeney, J. |
