By Noelle Phelan


A number of recent court cases regarding communications on private cell phones and whether or not those communications are privileged or not have held that private communications by public employees should be considered a matter of public record when they deal with said employee’s job.  One clear example of this was a Washington Supreme Court case, Nissen v. Pierce County. In this case, the county sheriff requested the prosecutor’s call and text records. The prosecutor provided a call log and text message log, with the dates, times and telephone numbers of calls and messages. These logs did not include the actual text or content of the messages themselves but the prosecutor did acknowledge that some of the calls and texts were work-related.


The detective sued the county, on the grounds that any records related to his work should be public. The trial judge disagreed and stated that private cellphone records were not public records. However, the Supreme Court agreed with the detective, reasoning that it would be counterproductive with regards to the public records act, and the public’s right to a transparent government to protect records prepared, used, owned or retained by public employees in the course of their jobs.


In Re: Student v. Arlington Public Schools was a Massachusetts based case, following in the same line of holdings. In June 2016, an Arlington family filed a hearing request to the Bureau of Special Education Appeals (BSEA) challenging the program and placement proposed by the Arlington Public Schools for their child. The student in question was a 13-year-old who has Borderline Personality Disorder, presenting with severe anxiety, depression, social isolation, and self-harm behaviors including trichotillomania and cutting.  The parents filed the hearing request because while their child was eligible to receive special education, the parents felt the IEP grossly under-served her and failed to address her significant needs.


Approximately a month after filing the initial suit, the parents served their first Request for Production of Documents on the Arlington Public Schools system. Arlington objected specifically to two of the parents’ discovery requests: requests #2 and #7. These requests sought text messages from or to any employee, consultant, agent and/or contractor of the district, referencing the student, at any point from July 1, 2014 to the present. The parents argued that it was unfair protect the discoverability of one form of messaging (text messages) over another (e-mail). They felt there should not be a greater expectation of privacy if a public employee is communicating about a student via text messages on their phone, versus communicating about that student via email on the same exact phone.


The court in this case agreed with the parents and ruled that an individual’s text messages from their personal cell phone or device can be subpoenaed, as long as that individual is a public employee and the text messages in question can be considered part of the student record. They felt this was necessary because the information requested by the parents could lead to the discovery of admissible evidence and that evidence could potentially be relevant to the issues at hand that were raised in the Hearing Request before the BSEA. The court held that despite the fact that the device on which the communications occurred was private, the communications were not and thus the communications were not privileged.


There are a number of ramifications to this holding, specifically in the education world. Many teachers utilize forms of communications such as text messages and emails to collaborate with their colleagues and determine best practices for specific students. This applies especially in the realm of special education where students might need alternative or individualized education plans in order to allow them to effectively access the curriculum and succeed. Teachers may fear legal ramifications, or subpoenas, if they do so and may choose instead to forgo utilizing every possible option to help students. However, on the other hand, many feel that this could create more communication between teachers, parents, and school systems in order to prevent any legal action on behalf of the students’ families.


Student Bio: Noelle is a staff member on the Journal of High Technology Law. She is currently a 2L at Suffolk Law. She possesses a B.A. in English and Sociology and a Criminal Justice certificate from the University of Massachusetts Amherst.


Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.


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