Labor & Employment Law

A recent published decision by the Washington Court of Appeals, Kitsap County v. Smith, raises interesting questions under the Washington Privacy Act:  Can conversations with or among public employees be considered "private"? 

Under RCW 9.73.030, it is unlawful to record "private" conversations without obtaining consent of all persons engaged in the conversation.  Anyone who violates this statute is subject to criminal prosecution for a gross misdemeanor and a civil action for damages and attorneys' fees.

In this particular case, Smith, a traffic engineer and senior program manager in a county public works department, recorded numerous conversations with employees and citizens without the knowledge and consent of all parties to the conversations.  It appears that Smith made the recordings to support a civil rights action filed by another employee and possibly to assist in his own retaliation case.  According to the opinion, Smith ???recorded these conversations to protect himself because he had been threatened with ???bodily harm??? and had found that some county employees were ???illegally undermining and discriminating against other county employees.??????  It also states that Smith ???made some of the recordings, particularly those related to some citizen contacts, for other purposes, such as keeping a record of what he told others so he could later report this information accurately.???

Upon learning of Smith???s recordings, the county filed a declaratory judgment action "declaring that David Smith recorded private conversations of County employees in violation of RCW 9.73.030."  Smith opposed the declaratory judgment arguing that the recorded conversations were not ???private conversations??? subject to the privacy act because they took place during meetings or when he contacted individuals regarding complaints in his capacity as a public employee.  Smith also argued that a declaratory judgment was improper because, by the time the case arrived in court, he had been terminated and thus there was no ???justiciable??? controversy.

The court of appeals punted on the issue of whether Smith???s actions violated the Privacy Act and whether Smith???s conversations with citizens, coworkers, and managers were ???private??? conversations under the Act.  However, the court of appeals sent the case back to the trial court to rule on those issues, so these questions could end up squarely in front of the appellate court in the future.   The court of appeals stated as follows:

Here, the County filed declarations from four county employees as well as declarations from three citizens whose conversations Smith recorded, along with transcripts of those recorded conversations.  Each individual stated that they were not aware that Smith recorded their conversations and asserted that, even though others were present during some of these conversations, they believed that these conversations were private.  The conversations with the citizens generally involved disputes with neighbors or attempts to limit trespassing.  The conversations with the co-workers generally related to private and/or personnel matters.

We conclude that the issue of whether conversations with public employees are subject to the Privacy Act and the broader issue of whether certain types of conversations are always considered private conversations for purposes of the Act are issues of great public importance.  Not only should the County be able to advise its employees of the legal limits on their ability to record work-related conversations, but all persons have the right to know whether their conversations with public employees can be surreptitiously recorded.  Clarification of these issues will enhance the County's ability to properly advise its employees and establish policies ensuring protection of all persons' privacy rights.

The court went on to state, ???Although the County invites us to reach the issue of whether

Smith's actions violated the Privacy Act, we decline to do so because the trial court did not reach these issues and the record related to these issues is not adequately developed."  The court of appeals remanded to the trial court for full consideration of the county???s declaratory judgment action.  A copy of the case can be found here.