State Auditor may require Legislature to maintain detailed telephone records for audit

LEGISLATURE--STATE AUDITOR--STATE AGENCIES--PUBLIC RECORDS--TELEPHONE RECORDS--State Auditor may require Legislature to maintain detailed telephone records for audit

1.   The State Auditor's authority to audit the records of agencies, including the Legislature, implies authority to require that records be kept in sufficient detail to satisfy audit needs.

2.   The State Auditor has authority to require state agencies, including the Legislature, to maintain records of telephone numbers called from state-owned telephones, for audit purposes.

3.   If the State Auditor maintains files containing legislative telephone records, such records are exempt from public disclosure while the audit investigation is pending; thereafter, the records are generally not exempt from disclosure unless someone can make a showing that particular records fall within some recognized exception to the public disclosure laws.

4.   The State Auditor's authority to audit the Legislature, including the authority to prescribe the keeping of records for audit purposes, extends to the Legislature itself and to committees created by the Legislature (such as the Legislative Transportation Committee and the Legislative Evaluation and Accountability Program Committee), and to persons or agencies exercising legislative power (such as the State Actuary and the Redistricting Commission).

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                                                                  March 31, 1994

The HonorableBrian Sonntag
Washington State Auditor
Legislative Building, MS 40021                                              
Olympia, WA  98504-0021                                                                

                                                                                                Cite as:  AGO 1994 No. 5

Dear Mr. Sonntag:

            By letter previously acknowledged, you requested an opinion from this office on questions relating to audits of telephone records kept by members of the Legislature.  We have paraphrased your questions as follows:

            1.         May the State Auditor require members of the Legislature to make and keep telephone records that allow the State Auditor to determine the telephone numbers being called?

            2.         If the answer to Question 1 is yes, are such telephone records subject to public disclosure under chapter 42.17 RCW once they are in the possession of the State Auditor?

            3.         Does the analysis in answer to Questions 1 and 2 also apply to telephone records of legislative entities such as the Legislative Transportation Committee, the Joint Legislative Systems Committee, the State Actuary, the Legislative Evaluation and Accountability Program Committee, the Legislative Budget Committee, and the Redistricting Commission?

                                                              BRIEF ANSWERS

            We answer your first and third questions in the affirmative, and your second question as detailed in the analysis below.

                                                                BACKGROUND

            Some users of the state "SCAN" telephone system[1]are assigned a feature that suppresses the last four digits of telephone numbers dialed by the user.  This feature is known as "security blanking".  Generally, SCAN telephone records show, for each call made, the originating location, date and time, the number dialed and its location, the duration of the call, and the charges incurred.  The records are maintained according to the SCAN authorization number issued to each user.  Similar records also exist for calls made via the remote long distance telecommunications service, SCAN Plus.

            With security blanking, all of the above information is recorded, except the last four digits of each number called.  The purpose of the security blanking feature is to protect the person called.  For example, security blanking can help protect the identity of jurors or crime victims.

            Security blanking is widely used by members of the Legislature.  Senate and House personnel have informed the State Auditor that the purpose of blocking phone numbers dialed by legislators is to protect the privacy of constituents called.  State Auditor's Office,Special Audit of Telecommunications (Report No. 5162), Jul. 1, 1991 - May 30, 1992, at 6.  The State Auditor has recommended that the House and Senate maintain complete telephone records to ensure accountability and to accommodate an adequate audit.  Id. at 7.

            With this background in mind, we turn to your questions.

                                                                    ANALYSIS

            Question 1:

            May the State Auditor require members of the Legislature to make and keep telephone records that allow the State Auditor to determine the telephone numbers being called?           

            We begin our analysis by examining the authority of the State Auditor to conduct audits of legislators and their offices.  The Office of State Auditor is established in the executive branch of state government by article 3, section 1 of the Washington Constitution:

                        The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature.

            The State Auditor's powers and duties are prescribed in article 3, section 20:  "The auditor shall be the auditor of public accounts, and shall have such powers and perform such duties in connection therewith as may be prescribed by law."  (Emphasis added.)  See also RCW 43.09.020.

            The words "in connection therewith" relate directly to the State Auditor's duty as auditor of public accounts as determined by the state's lawmaking body.

                        The Washington State Auditor is a member of the executive branch of government and has only such powers as are conferred by the legislature. . . . [The] provisions [of article 3, section 20] confer no constitutional or implied powers. The office possesses no powers other than statutory powers specifically granted.  Yelle v. Bishop, 55 Wn.2d 286, 297, 347 P.2d 1081 (1959).

Graham v. State Bar Ass'n, 86 Wn.2d 624, 625, 548 P.2d 310 (1976).

            The State Auditor conducts post audits of state departments pursuant to RCW 43.09.290 through 43.09.418.  A post audit is "an annual audit of the books, records, funds, and financial transactions of a state department for a complete fiscal period".  RCW 43.09.290.  For purposes of departmental audits, "state department" means

            elective officers and offices, and every other office, officer, department, board, council, committee, commission, authority, or agency of the state government now existing or hereafter created, supported, wholly or in part, by appropriations from the state treasury or funds under its control, or by the levy, assessment, collection, or receipt of fines, penalties, fees, licenses, sales of commodities, service charges, rentals, grants‑in‑aid, or other income provided by law, and all state educational, penal, reformatory, charitable, eleemosynary, or other institutions, supported, wholly or in part, by appropriations from the state treasury or funds under its control.

Id.(emphasis added).

               By the terms of this statute, the Legislature has authorized the State Auditor to conduct post audits of all elected officers and offices.  Legislators and their offices are not excepted.  The State Auditor's power to require auditees to make or keep certain records is based on this same statutory grant of authority.  Post audits are performed to detect "malfeasance, misfeasance, or nonfeasance in office".  RCW 43.09.330;see alsoGraham, 86 Wn.2d at 630.  The Legislature has authorized the State Auditor to "[i]n his or her discretion, inspect the books of any persons charged with the receipt, safekeeping, and disbursement of public monies", RCW 43.090.050(2), and to obtain auditees' records for the purpose of performing post audits.  RCW 43.09.330 (authorizing examiners of the division of departmental audits to issue subpoenas and compel the attendance of witnesses and the production of books and papers).  The State Auditor is thus authorized to review records relating to improper use of facilities by state officials, including legislators.  See, e.g., RCW 42.17.130, 42.20.010; see also RCW 43.88.160.

            An express grant of statutory power carries with it by necessary implication authority to use reasonable means to make such a grant effective.  2B N. J. Singer,Statutes and Statutory Construction § 55.02 (5th ed. 1992).  SeeGreen River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980), modified on reconsideration, 95 Wn.2d 962, 663 P.2d 1324 (1981).

            In this instance, without the ability to require auditees to make or maintain those records required to perform an effective audit, the authority to conduct post audits would be meaningless.  Without records of an officer's or office's transactions, it could not be determined whether "malfeasance, misfeasance, or nonfeasance in office" in fact existed.  Accordingly, such power is reasonably required for the conduct of a post audit and is necessarily implied by the grant of authority to conduct post audits.

            Of course, the Legislature has the power to modify the State Auditor's authority to conduct post audits of legislative officers and offices.  SeeYelle v. Bishop, 55 Wn.2d 286, 297, 347 P.2d 1081 (1959);Graham, 86 Wn.2d at 625.  Thus, the Legislature may, by amending RCW 43.09.290, exempt itself from post audits conducted by the State Auditor's Office.  However, as long as legislative officers and offices are made expressly subject to audit by the State Auditor's Office by statute, it is within the necessarily implied powers of that grant of authority for the State Auditor to require legislators to establish and maintain records needed to carry out an adequate post audit.

            The State Auditor's Office has considerable discretion to determine what records might be necessary to enable it to carry out its auditing responsibilities.  See AGO 1989 No. 15, at 6‑7.  Records of telephone calls made on the state-financed telecommunications system are logically connected to a determination of the accuracy and propriety of charges paid from the public treasury, and would thus be among the types of records that the State Auditor could require to be maintained and provided for audit.

            Question 2:

            If the answer to Question 1 is yes, are such telephone records subject to public disclosure under chapter 42.17 RCW once they are in the possession of the State Auditor?[2]

            In addressing this question, it is helpful to first set out the purpose and requirements of chapter 42.17 RCW, which codifies state public disclosure law.[3]  These provisions were first enacted in 1972 as a part of Initiative 276 by direct vote of the people.  The act has been characterized as "a strongly worded mandate for broad disclosure of public records".

            The provisions of the act are to be liberally construed to promote full access to public records so as to assure continuing public confidence in governmental processes, and to assure that the public interest will be fully protected.

Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 33, 769 P.2d 283 (1989).  There is an inherent tension between society's interest in an open government and its interest in protecting personal privacy rights, as well as legitimate government interests.  Id.

            Though tensions among these competing interests are characteristic of a democratic society, their resolution lies in providing a workable formula which encompasses, balances and appropriately protects all interests, while placing emphasis on responsible disclosure.

Id.

            We turn now to applicable provisions of the act itself.  RCW 42.17.260(1) provides in pertinent part:

                        Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (6) of this section, RCW 42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of specific information or records.

(Emphasis added.)

            "Public record" is defined as

            any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

RCW 42.17.020(27).  See also RCW 43.88.200 (agency records of financial transactions under the Budget and Accounting Act are deemed public records).

            When the Office of the State Auditor conducts a post audit, it obtains copies of various records of the auditee during the course of the audit.   These records, commonly referred to as "working papers", contain information related to the conduct of government which are used or retained by a state agency, thus constituting a public record within the meaning of chapter 42.17 RCW.[4]

            The State Auditor's Office considers working papers to be exempt from public disclosure while the audit is being conducted.  The basis for this exemption is RCW 42.17.310(1)(d), which exempts from public inspection and copying

            [s]pecific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.

See alsoBrouilett v. Cowles Pub'g Co., 114 Wn.2d 788, 796, 791 P.2d 526 (1980).

            Once an audit has been completed, the State Auditor no longer treats the working papers as exempton the basis they are part of the State Auditor's investigation.  The exemption afforded working papers is thus temporary.  It is not uncommon, however, for state audit examiners to obtain records during the conduct of an audit that may be exempt from public disclosure under some other statutory basis (a basis independent of the audit).

            If such records are requested pursuant to chapter 42.17 RCW from the State Auditor's Office, an entity or party asserting an exemption from public disclosure can act to prevent disclosure under the act's injunction statute, RCW 42.17.330.  That statute states:

                        The examination of any specific public record may be enjoined if, upon motion and affidavit by an agency or its representative or a person who is named in the recordor to whom the record specifically pertains, the superior court for the county in which the movant resides or in which the record is maintained, finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions.  An agency has the option of notifying persons named in the record or to whom a record specifically pertains, that release of a record has been requested.  However, this option does not exist where the agency is required by law to provide such notice.^[[5]]

(Emphasis added.)

            Thus, if the State Auditor receives a public disclosure request for legislative telephone records included in the work papers from a completed audit, he would be required to provide the records in accordance with the requirements of chapter 42.17 RCW.  However, he has the option under RCW 42.17.330 of notifying anyone named in the records, or to whom the records specifically pertain, that the release has been requested and anyone so notified then has the option of proceeding under RCW 42.17.330 to enjoin release of the records.  This course of action would be available to legislators who receive notice from the State Auditor that telephone records have been requested under chapter 42.17 RCW.  A court would then determine whether examination of the record "would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital government functions".  RCW 42.17.330.

            We understand that the members of the Legislature have expressed a concern that disclosing their telephone records may violate the privacy of constituents or other persons whose names or telephone numbers may be revealed in a legislator's telephone billing records.  Such a right to privacy, while not codified as such in RCW 42.17.310, has been recognized by the courts but defined very narrowly.  See, e.g.,Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978).  Our research has not revealed any common law theory or current statute which would create confidentiality or recognize a specific privacy right in a record of telephone calls made by a legislator to a constituent.  However, in a particular case, either the legislator or another party to a legislative telephone call might convince a court that a particular record should be exempt from public disclosure to avoid violations of a privacy right.  We cannot predict how often such an argument would be made, or how often it would be successful.

            As in the matters addressed by your first question, the Legislature has the power to address this issue, by amending chapter 42.17 RCW to clarify the status of particular types of records.  The amendment could take the form of exempting such records from public disclosure altogether, or only exempting certain categories of them, or setting up a procedure for reviewing such records to determine whether or not they should be exempted.  Absent further amendments in the statute, we conclude that there is no "blanket" exemption preventing the disclosure of telephone records of legislators in their offices when they are included in audit work papers and are no longer needed for investigative purposes.  Such records would presumptively be disclosable under current law, unless a showing could be made that particular records were subject to a recognized exemption.

            Question 3:

            Does the analysis in answer to Questions 1 and 2 also apply to telephone records of legislative entities such as the Legislative Transportation Committee, the Joint Legislative Systems Committee, the State Actuary, the Legislative Evaluation and Accountability Program Committee, the Legislative Budget Committee, and the Redistricting Commission?

            To answer this question, we turn once again to the language of RCW 43.09.290.  Repeated here for ease of reference, that statute provides:

                        For the purposes of RCW 43.09.290 through 43.09.340 and 43.09.410 through 43.09.418, post‑audit means an annual audit of the books, records, funds, and financial transactions of a state department for a complete fiscal period; pre‑audit means all other audits and examinations; state department means elective officers and offices, and every other office, officer, department, board, council, committee, commission, authority, or agencyof the state government now existing or hereafter created, supported, wholly or in part, by appropriations from the state treasury or funds under its control, or by the levy, assessment, collection, or receipt of fines, penalties, fees, licenses, sales of commodities, service charges, rentals, grants‑in‑aid, or other income provided by law, and all state educational, penal, reformatory, charitable, eleemosynary, or other institutions, supported, wholly or in part, by appropriations from the state treasury or funds under its control.

(Emphasis added.)

            Each of the entities you mention was created by statute within Title 44 RCW, State Government -- Legislative, and is supported by appropriation of public funds.[6]  Each of these entities is thus an "office . . . of the state government . . . supported, wholly or in part, by appropriations from the state treasury or funds under its control".  RCW 43.09.290.  The definition of "state department", for purposes of departmental audits, thus encompasses these legislative entities.  Therefore, we conclude that the State Auditor's authority to audit, and by extension to require records to be maintained for audit purposes, applies to officers and agencies who perform legislative functions as well as to the state Legislature itself.

            We trust the foregoing will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        SUZANNE J. SHAW
                                                                        Assistant Attorney General

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