State sued over deleting communications that should be public record
June 13, 2024 — The Washington Coalition for Open Government applauds the recent move to pursue legal action enforcing requirements of the state's Public Records Act. The assertions made in the lawsuit and in a news story this week in The Olympian are troubling.
A McClatchy news reporter had asked several agencies for a week's worth of messages from the Microsoft Teams communication platform. Two agencies responded that it would cost more than $500 to provide them.
Why so high? Documents that the news outlet later received indicate state public records officials discussed handling of such requests. They show that an officer at the Department of Agriculture, Pamela Potwin, encouraged officials at other agencies to start charging the reporter for documents and compared the reporter to a person officials consider a nuisance requester.
"If all else fails, get that down payment invoice ready," Potwin wrote, inserting an emoji with a winking face, apparently implying the cost might cause the reporter to abandon the request. Instead, after the payment was made, the check was returned. In the Teams chat released to the reporter by Agriculture, that comment had been deleted.
Meanwhile, Potwin deleted a message that mentioned the requester she had said was "known to harass" the city of Seattle and its police for records. That deletion is part of a recent lawsuit brought by open-government advocate Jamie Nixon that also focuses on a state decision to auto-delete messages exchanged via Teams after seven days. Nixon is represented by Fircrest attorney Joan Mell, a public-records expert who serves on the WashCOG board.
As the lawsuit recounts, some agencies using Teams have set it to automatically delete all chat messages after seven days, unless a state worker marks the messages to be saved. The lawsuit says this is contrary to the Public Records Act, which gives the Washington State Records Committee the power to decide on appropriate retention schedules for state records.
WashCOG President Mike Fancher said Thursday that the evolution of communication methods does not change the people's right to know what their government is doing.
"A chat feature is no different than email and can be used to direct, plan and influence government decisions. There is no reason it should be an exception to the Public Records Act," he said. "In this case, the Teams chat was actually used to organize agencies in a pushback against the PRA."
