TO: Laurie Meeker, Chair, United Faculty of Evergreen

FROM: Eric R. Hansen, Staff Attorney

DATE: March 13, 2008

RE: Public Records Act

You have asked whether Chapter 42.56 RCW, the Public Records Act, would require disclosure of e-mails sent by faculty members to other faculty members or outside agencies concerning the post-concert riot in February.

It is important to note initially that the Public Records Act, “is a strongly worded mandate for broad disclosure of public records…. The Act’s disclosure provisions must be liberally construed and its exemptions narrowly construed. Progressive Animal Welfare Society v. University of Washington, 125 Wn. 2d 243 (1994). E-mails generated by public employees on computers used at work are public records subject to disclosure. Tiberino v. Spokane County, 103 Wn. App. 680 (2000).

It has been suggested that disclosure of e-mails written by faculty members would violate their right to academic freedom. However, academic freedom cases involve the government’s attempt to control or direct the content of speech. The Public Records Act does not impose any content-based restrictions on speech. Progressive Animal Welfare Society v. University of Washington, id. Moreover, the Washington Supreme court held in Progressive Animal Welfare Society that it would be difficult to grant special First Amendment protection to public university employees while denying it to other state employees.

Nevertheless, it is important to note that Progressive Animal Welfare Society did not lay to rest the matter of a public records exemption based on academic freedom as absolutely as the Public Records Q&A presented to Evergreen by the Attorney General’s Office asserts. For example, an argument can be made that academic freedom is not equally applicable to university employees who serve in an administrative position (as in Progressive Animal Welfare Society) and those who serve in a classroom teaching capacity. Furthermore, a “chilling effect” on academic freedom, an indirect imposition of content-based restrictions, would be particularly odious in the classroom setting. Certain interpretations and applications of the Public Records law could impose such content-based restrictions indirectly.

While the possibility of such an academic freedom exemption must be preserved for a future challenge in which the facts warrant it, the instant matter of faculty e-mail does not rise to that level. Any distinctions made between a grant proposal (the subject of public records disclosure in Progressive Animal Welfare Society) and emails about a matter of public concern would be meaningless for the purposes of public records as defined by RCW 42.56.010 (3). Therefore, the precedent set in Progressive Animal Welfare Society is applicable to the question of whether or not faculty emails are subject to public records requests. This is particularly so because the e-mails in question relate to matters of public concern, communicated through the use of state resources.

Some faculty members are also concerned that disclosure of the e-mails would violate their right to privacy. Under RCW 42.56.210, information can be redacted from public records if release of the information would violate a person’s right to privacy. RCW 42.56.050 provides that a person’s right to privacy is invaded or violated only if disclosure of information about the person would be highly offensive to a reasonable person and is not of legitimate concern to the public. For purposes of the Public Records Act, “private” information is limited to matters concerning the intimate details of one’s private life. Hearst v. Hoppe, 90 Wn. 2d 123 (1978). Courts have also held that disclosure of a satisfactory performance evaluation would be highly offensive. Dawson v. Daly, 120 Wn. 2d 782 (1993). The faculty e-mails in question do not contain information of a private nature. Therefore, disclosure of the information would not be highly offensive.

It has been asked whether the e-mails must be submitted in electronic or paper form. The act does not specify the form of the required disclose. Also, faculty members have inquired as to whether broadcast emails to all staff and faculty must be submitted or only emails to smaller groups. Because disclosure under the Act is not dependent on the recipient of the public record, disclosure of emails to large and small groups is required. Finally, faculty members would like to know whose responsibility it would be to redact student information that cannot be disclosed under FERPA. Again, the act does not specify who should redact such information.

If you have additional questions, please contact me.