Today, former Puyallup City Council member Steve Vermillion filed a motion in the West v. Vermillion lawsuit seeking the application of a recent Court of Appeals ruling to the facts of his case. The City of Puyallup will join in this motion.
On February 21, 2018 Division II of the Court of Appeals issued an opinion in a separate case involving posts on an elected official's private Facebook page. Division II clarified the definition of “public record” in support of its ruling that those posts were not public records. A finding that the records at issue in the Vermillion matter are likewise not public records could eliminate or reduce any penalties to the City.
In 2014, Arthur West requested emails held in former council member Steve Vermillion’s private email account. Mr. Vermillion and the City of Puyallup posited that emails held in a private email account are not public records because the existing definition of “public record” was overbroad when applied to private email accounts. This shortcoming in the definition of the term “public record” has now been validated in two separate court rulings. First, the Washington Supreme Court held that Pierce County, which had taken the same legal position, had asserted that position based on a good faith interpretation of the Public Records Act. While the Court rejected that position, it was compelled to further clarify the definition of a public record. Division II has provided additional validation in a subsequent case, in which the Court recognized that even after Nissen, further clarification was necessary before it could determine if the social media posts in question qualified as public records.
With this additional clarification now in hand, the City and Mr. Vermillion will ask Judge Rumbaugh to apply the newly clarified definition of “public record” to determine if any of the emails Mr. Vermillion held in his private email account qualified as public records. The City notes that in January, Judge Rumbaugh also recognized that the definition of “public record” needed additional clarification, which he provided at that time by adopting a much broader test for determining what qualifies as a “public record” than the test Division II adopted in its recent decision. Because Pierce County is part of Division II, the Division II decision is controlling.
The Division II decision also validates the primary concern expressed by Mr. Vermillion in this case. Mr. Vermillion has consistently argued that many of his emails with constituents should not be treated as public records because he was not acting as an agent of the City in those exchanges. In its decision, Division II agreed, at least in part, by holding that an elected official was not acting in their official capacity when they posted information about what the City was doing in order to provide information to persons with access to their Facebook page.
The City is committed to open government and supports access to public records. The City acknowledges that the private emails of Council members and City officials may be public records if they are created and/or maintained in the official capacity of the Council member or official. However, in this case, the City does not believe that the City should be required to pay penalties, owing to the unsettled status of the law when the Vermillion case was first filed. Additionally, the City does not believe that the vast majority, if any, of the requested records in this case (which now are all publicly available) are in fact public records under the recent Division II decision. Therefore, it is the City’s position that it should not be penalized related to these records.
Contact: Brenda Fritsvold, Public Affairs Officer, 253-770-3370