Public Employees’ Privacy and Technology

On June 18, the U.S. Supreme Court overturned a Ninth Circuit Court of Appeals decision in City of Ontario California v. Quon.  Slip Op No. 08-1332.  You may remember that the Ninth Circuit had found that a city’s discharge of a police officer for inappropriate use of a pager violated the employee’s privacy expectations.  The Supreme Court’s decision, overturning the Ninth Circuit holding, was based on the application of the 4th Amendment protections to public sector employers.  The Court’s holding was relatively narrow and expressly does not address whether a city’s reading of text messages violates the federal Stored Communications Act, 18 U.S.C. 2701, nor does the ruling establish any “far reaching premises that defined the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communications devices.”  The Supreme Court in its decision avoided “elaborating too fully on the … implications of emerging technology.” 

 The decision does provide some guidance to public employers:

1.         The Supreme Court noted that the City of Ontario’s use policies did not “apply, on its face, to text messaging.”  Employers should review their policies carefully to make sure that they fully warn employees that the use of City e-mail facilities, telephone, text messaging and other electronic equipment, does not create a right to privacy.  In light of evolving technology, you should consider whether your e-mail policy takes all City-supplied devices into consideration.

2.         The original Ninth Circuit decision hinged in large part upon the communications between the terminated employee and his supervisor.  While the employer’s policy attempted to limit privacy expectations and reserve the right of review, comments by the supervisor indicated that the employee had some privacy expectations.  The Supreme Court highlighted the importance of clear, comprehensive policies involving electronic communications stating: 

“Employer policies concerning communications will of course shape the reasonable expectations of their employees, especially the extent such policies are clearly communicated.”

This statement, again, emphasizes that your best protection is having clear, enforceable personnel policies. 

Please note that there is a distinction between the review which a public employer may conduct and public records which are required to be disseminated under the Washington Public Records Act.  As the Attorney General’s model rules indicate, employees’ personal communications using City e-mail are not public records and therefore are not subject to dissemination.  What the public may request and receive is different than what a public employer may review in order to investigate complaints, manage its employees, and retrieve other  public documents.

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