Renewed Request to Release Unredacted Ethics Report
August 23, 2021
Mayor Jenny Durkan
600 4th Ave., 7th Floor
Seattle, WA 98104
Sent via email to: jenny.durkan@seattle.gov
Re: Renewed Request to Release Unredacted Ethics Report
Dear Mayor Durkan,
I am writing again on behalf of the Washington Coalition for Open Government to urge you to waive attorney-client privilege and release the unredacted investigative report regarding your text messages.
I wrote to you on May 18 to express WashCOG’s deep concern at the Ethics and Elections Commission finding that your counsel Michelle Chen violated the Public Records Act by narrowly interpreting requests to exclude your text messages. Equally concerning were the revelations that you allowed ten months of your text messages to be destroyed and that this destruction was concealed from records requesters.
My letter urged you to release the unredacted ethics report to the public. You chose not to do that, saying on KUOW that you would “leave it to the lawyers.” That response was unacceptable then and is even more so now.
New reporting from The Seattle Times, based on recently obtained documents, indicates “Chen wasn’t acting alone.” The Times story of August 20, 2021, says earlier explanations offered by your office were untrue or misleading, and that others higher in the administration were involved.
My earlier letter said, “The May 6 report by the Ethics and Elections Commission does not address important questions about your own records retention practices and the extent to which you maintain oversight and control of your staff. Further shrouding your accountability in this matter, some of the details of your staff’s conduct and/or reasoning are redacted.”
Ethics Director Wayne Barnett explained in a letter to you when the ethics report was released that he had redacted portions of it that
“contain material that constitutes attorney-client privileged communications provided in the context of an attorney-client relationship with the City Attorney’s Office.” His letter states that the unredacted version of the ethics report should be treated as privileged unless privilege is waived by the Mayor’s Office.
As I wrote in my earlier letter, WashCOG has no way to ascertain if the redacted content is truly privileged. The recent Seattle Times story heightens our concern. If these redactions are about how to retrieve the missing texts, as opposed to the legal consequences of losing them, that’s not legal advice and should not be redacted.
The Washington Coalition for Open Government (WashCOG) is a nonprofit, nonpartisan organization dedicated to protecting the public’s right to know about government. We have no agenda other than transparency and accountability at all levels of government, particularly among elected officials.
Your office covered up the destruction of text messages from records requesters and others who would hold the city accountable. Additionally, The Times’ recent story indicates you failed to promptly turn over your phone to the city’s information technology department to get the code to determine if there was a Cloud backup.
The Times story says you have declined to answer direct questions about these matters, which is one more reason you should waive the privilege and release the unredacted version of the report. Only you can do this.
As I said in my earlier letter, it is time to be fully transparent. Release the unredacted ethics report to the public now.
Sincerely,
Michael R. Fancher
WCOG President