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Washington Supreme Court Awards Freedom Foundation Unanimous Victory Over SEIU 925 In Public Records Case

The Washington State Supreme Court on Thursday issued a unanimous ruling in favor of a Freedom Foundation public information request from 2015 that establishes important precedents in public records law — and rebukes a powerful government employee union for trying to abuse it.

In SEIU 925 v. University of Washington, the justices overturned a motion for summary judgment granted at the trial court level, and later affirmed by the Division 1 Court of Appeals, that had prevented the release of more than 3,800 emails and other documents related to union organizing on the UW campus.

The Freedom Foundation, an Olympia-based public policy organization, filed the original information request in December 2015, seeking anything generated by four specific UW employees referencing labor-related phrases such as “Freedom Foundation,” “right-to-work,” “Northwest Accountability Project” or “Friedrichs v. California.”

The university’s Office of Public Records & Public Meetings agreed the information being sought probably was a matter of public record and stated its intention to honor the request. But before it could do so, Service Employees International Union 925 — which wasn’t even recognized as the bargaining representative for any of the four employees — intervened on behalf of Robert Wood, UW’s representative to the American Association of University Professors and an active supporter of efforts to unionize its faculty.

SEIU 925 attorneys successfully persuaded judges at the trial and appellate court levels the information couldn’t be made public — despite its having been produced on UW-provided devices — because it dealt with issues beyond the scope of Wood’s normal duties as a professor of atmospheric sciences.  The trial court also ruled, inexplicably, that e-mails relating to union organizing and the AAUP were private and did not relate to the functions of government.

Arguing before the Washington Supreme Court in May 2019, however, Freedom Foundation Litigation Counsel Sydney Phillips argued the “scope of employment” argument was wrongly applied in this case. She cited the example of a hypothetical professor sending a sexually harassing e-mail to a colleague whose contents might be outside the scope of his employment and not disclosable under the union standard, even though it certainly related to the “conduct of government” as defined by state law.

On Thursday, the court agreed.

Writing for all nine of her colleagues, Justice Debra Stephens noted, “The Court of Appeals erred by applying the ‘scope of employment’ test to determine whether the records at issue in this case — most of which are concededly retained on agency servers — are disclosable.”

The court also ruled that most of the e-mails relating to union organizing and the AAUP “appear to satisfy (the functions of government) standard because they most likely address faculty working conditions or the UW’s educational mission” and should be disclosed.

“Accordingly,” she concluded, “we reverse the Court of Appeals’ decision affirming the trial court’s grant of summary judgment and permanently enjoining the release of these records.”

As a result of the ruling, the “scope of employment” test will only restrict disclosure of emails sent on public employees’ personal devices — not those they send using a university’s servers, for example.

Equally significant, all communications relating to union organizing should be considered public records going forward.

“Washington state law is clear,” Phillips said. “The question of what is and isn’t a matter of public record must be interpreted as broadly as possible while exceptions should be rare. SEIU 925 was trying to create a hole in the law you could drive a truck through.”