Seattle Police really doesn’t want the public to know about the stuff attached to its walls, lockers, and cubicles. I made a records request in response to tweets by Ansel Herz later discussed in Crude Anti-Obama Stickers Seen on Lockers During Tour of Police North Precinct Without my permission SPD limited my request to personal statements and then claimed personal statements aren’t public records. I’m curious when is an on duty’s employee’s statement personal vs governmental? Like one poster said “Try not to end up on YouTube”. How is that any different from an employee writing an email reminding co-workers to not end up on Youtube?
Here’s SPD’s response and then my appeal:
RE: Public Disclosure Request#: P004934-091216
Dear tim clemans,
This is to acknowledge and respond to your request: toinspect every writing/record attached to any and all SPD cubicles and any allwritings attached to any walls. The reasoning is this tweet https://twitter.com/Ansel/status/774289992382152705is insightful. It provides insight into the mindset of employees. Yousubsequently amended this request: to include locker exteriors too.
Based on your reference to Ansel Herz’s tweet and yourstatement that you are seeking insight into the mindset of employees, weinterpret your request to be for writings on walls, cubicles, or lockersattached by employees expressing personal statements.
This is a partial denial of your request to the extent thatyou seek to inspect writings on the walls, cubicles, and lockers of non-publicareas of SPD—i.e., those areas of SPD that require either a badge or escort toenter. You may inspect any area of SPD open to the public during workinghours. Those areas and normal business hours are:
SPDHeadquarters M-F 8-5 Lobby Only SouthPrecinct 24/7 Lobby Only NorthPrecinct 24/7 Lobby Only South West Precinct 24/7 Lobby Only EastPrecinct 24/7 Lobby Only WestPrecinct 24/7 Lobby Only Airport Way Center Building C Evidence M-F 8-5 Lobby Only
Statutory Basis and Explanation of Partial Denial: The PRA defines a public record as any writing containinginformation relating to the conduct of government or the performance of any governmentalor proprietary function prepared, owned, used, or retained by any state orlocal agency regardless of physical form or characteristics. RCW42.56.010(3). To be a public record, the writing must contain informationrelating to the conduct of government or the performance of any governmental orproprietary function. The personal expressions of City employees that maybe posted on the walls of the non-public areas of City facilities are notpublic records because they have nothing to do with the conduct of government.Similar to the call and text message logs analyzed by the Washington SupremeCourt in Nissen v. Pierce County, they merely evidence the acts of apublic employee; they play no role in agency business as records themselves.183 Wn.2d 863, 880–83, 357 P.3d 45 (2015). As such, they are not public recordssubject to the Public Records Act.
This conclusion is buttressed by Federal cases interpretingthe First Amendment rights of public employees. The fact of publicemployment does not convert every personal expression of a public employee intoa public record. The U.S. Supreme Court has made it clear that employeescould not be forced to relinquish their First Amendment rights simply becausethey had received the benefit of public employment. Pickering v. Board ofEducation, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In holdingthat a government employer could not discipline an employee for postingreligious displays in non-public areas of a government facility, the NinthCircuit Court of Appeals said that the religious material posted by an employeein and around his work space, which was not open to the public at large, “wouldnot appear to any reasonable person to represent the views of the state.” Tuckerv. State of Cal. Dep’t of Educ., 97 F.3d 1204, 1212 (9th Cir. 1996).
Youare free to inspect personal writings (if any) posted on the walls of the SPDareas open to the public as indicated above.
I appeal. I did not limit my request to only personal statements. My request is “every writing/record attached to any and all SPD cubicles and any allwritings attached to any walls. “ I do not limit my request beyond that. There are photographs, notes, memos, etc on walls that aren’t personal statements and were created by the agency as communications to employees. As to personal statements, the logs in the Nissen case “The call and text message logs were prepared and retained by Verizon, and Nissen does not contend that the County evaluated, reviewed, or took any other action with the logs necessary to “use” them.” Because these writings I requested are retained by the agency in a way viewable by anyone who walks by them they are being viewed by evaluated and reviewed by the agency. The department’s COO saw some stickers and requested they be removed. He acted on behalf of the agency as an executive and evaluated and reviewed the stickers.