Trial Court Must Hear County?s Suit Against Employee for Surreptitious Recording of Conversations and Retention of Public Documents.

Kitsap County sued a former County employee, David Smith, and his lawyer Clayton Longacre for violating? Washington?s Privacy? Act,? RCW 9.73. The County alleged that Smith surreptitiously recorded conversations he had with citizens and employees, that Smith unlawfully removed County public records, and that Smith and Longacre retained these records after the County requested they be returned.? ?The trial court denied the County?s motion for a declaratory judgment that Smith violated the Privacy Act on the ground that the County had no standing so there was no justiciable controversy.? ?The trial court dismissed the County?s remaining claims for injunctive relief and damages for removal and retention of County records on summary judgment because the County failed? ?to? ?specifically?? identify? ?any? ??original? records removed by Smith. ?The Court of Appeals reversed and remanded holding that the trial court must hear the case because ?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.??? The Court of Appeals also reversed and remanded the grant of summary judgment.? ?RCW 40.14.010 defines ?public records? broadly and RCW 40.16 makes ?willful ?and ?unlawful ?removal ?of? such records a felony.? ?The records Smith retained included work-related written communications and memos on County-related business, drafts of and completed performance evaluations, Smith?s subordinate ?employees?? personnel ?records, attorney-client related materials, drafts of County reports, meeting notes, and County-owned day planners ?Smith ?used ?at ?his ?job.?? ?The ?Court ?of?Appeals found material facts in dispute about whether these laws required Smith and Longacre to return the records taken and retained. ?Kitsap County v. Smith, 180 P.3d 834 (Jan. 10, 2007, Van Deren, Penoyar, Bridgewater).