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Service Employees International Union Local 925 v. The University of Washington

Supreme Court of Washington, En Banc

September 5, 2019

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Respondent,
v.
THE UNIVERSITY OF WASHINGTON, an agency of the State of Washington, Respondent, FREEDOM FOUNDATION, an organization, Petitioner.

          STEPHENS, J.

         Petitioner Freedom Foundation (Foundation) filed a public records request for records relating to union organizing by several University of Washington (UW) faculty members. The UW asked one of these faculty members to search his e-mail accounts for responsive records and, after reviewing those records, gave notice that it intended to release many of them in the absence of an injunction. Respondent Service Employees International Union 925 (Union) initiated an action in King County Superior Court to enjoin release of any union-related records, arguing they were not "public records" under chapter 42.56 RCW, Washington's Public Records Act (PRA). The trial court granted the injunction and the Court of Appeals affirmed, applying the "scope of employment" test from Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015). The Foundation petitioned for review, arguing that the "scope of employment" test applies only to records created or stored on an employee's personal device and should not be extended to records on public agencies' e-mail servers. We agree and now reverse the Court of Appeals.

         FACTS

         In late December 2015, the Foundation filed a public records request with the UW's office of public records and public meetings (OPR) seeking:

1. All documents, emails or other records created by, received by, or in the possession of University of Washington faculty/employees Amy Hagopian, Robert Wood, James Liner, or Aaron Katz that contain any of the following terms:
a. Freedom Foundation (aka., "FF," "EFF," and "the Foundation")
b. Northwest Accountability Project
c. Right-to-work (aka., "right to work," "RTW," and "R2W")
d. Friedrichs v. California Teachers Association (aka., "Friedrichs v. CTA" and "Friedrichs")
e. SEIU
f. Union
2. All emails sent by University of Washington faculty/employees Amy Hagopian, Robert Wood, James Liner, or Aaron Katz to any email address ending in "@seiu925.org" or "@uwfacultyforward.org"
3. All emails received by University of Washington faculty/employees Amy Hagopian, Robert Wood, James Liner, or Aaron Katz from any email address ending in "@seiu925.org" or "@uwfacultyforward.org"
4. All emails sent from and received by the following email address: aaup@u.washington.edu.

         Clerk's Papers (CP) at 39. The request specified that it was limited to "records from January 1, 2014 to the present." Id.

         The UW contacted Professor Rob Wood, who was president of the UW chapter of the American Association of University Professors (AAUP) and a member of the Union, and asked him to search his e-mail accounts for records responsive to the Foundation's request. He provided OPR with a large number of e-mails from both UW and non-UW accounts. After OPR reviewed those e-mails, it could not definitively determine whether they were "public records" subject to disclosure under the PRA. Following its standard records request procedure, [1] the UW notified Professor Wood that it would release 3, 913 pages of e-mails unless he sought a contrary court order by April 26, 2016. Professor Wood asked OPR for copies of those e-mails, and it provided him a CD (compact disk) with a PDF (portable document format) file. According to the UW, "the vast majority of the emails [in the file were] ...


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