The following essays represent the analysis and viewpoints of their authors.

Public Officials Delete Key Text Messages

By Robert McClure

In several recent high-profile cases where officials and politicians could expect close public scrutiny, text messages were deleted from their cellphones or other devices. Though those actions stand in defiance of the public records law, few officials have been punished for their actions.

Several recent well-documented instances of government officials improperly deleting text messages raise significant doubts that government employees and elected officeholders are adequately trained on how to follow the state Public Records Act (PRA).

That’s the most charitable interpretation. More distressing are indications that some officials no longer take seriously whether their actions criminally violate the state records law.

Here are several examples:

• Then-Seattle Mayor Jenny Durkan, Police Chief Carmen Best, Fire Chief Harold Scoggins and four other city officials deleted tens of thousands of text messages sent amid the furor of 2020’s racial-justice protests. Durkan explained that she had dropped her phone while strolling along a beach, but a federal judge said Durkan’s explanation “strains credibility.” It turned out the phone had been manually set to delete text messages after 30 days. Best at first told journalists she did not know how the texts were deleted. But later, in sworn testimony, she said she had manually deleted texts in batches after determining unilaterally that they were not subject to the PRA. Seattle taxpayers ended up forking out nearly $3 million in court settlements with two city whistleblowers and the Seattle Times over PRA violations, and to engage consultants to try to track down the missing texts. None of the officials involved has been prosecuted or fined.
• The Washington Redistricting Commission admitted in a court filing in December 2022 that Commissioner April Sims deleted text messages subject to the PRA. In addition, the commission improperly withheld many text messages requested by members of the public after the commission approved redistricting plans that had not been made public, without any public discussion. The Washington Coalition for Open Government (WashCOG) successfully sued the commission under the Open Public Meetings Act. WashCOG won, among other stipulations, a requirement that all future commissioners and staff receive open-government training within 30 days of commencing employment.
• Then-Richland School Board member Audra Byrd acknowledged she deleted text messages she sent amid a contentious move to drop a COVID-inspired mask mandate, saying her personal phone did not have the capacity to retain them. But in one of those text messages to a colleague, she said, “I am deleting all of this now,” followed by a smiley-face emoji. She has never been prosecuted or fined.

These relatively well-known violations became public because they touched on areas of major controversy: race-equity protests, coronavirus mask mandates, and the critical once-a-decade divvying up of Washington’s political power. These were high-profile affairs. Officials had every expectation of close scrutiny.

But what about the day-in, day-out conduct of tens of thousands of public servants across the state? The high-profile examples cited above raise serious questions about how often public documents in text messages are being deleted in violation of records retention requirements that supposedly carry the weight of the law.

Washington voters in 1972 established the principle that the public has the right to inspect the documents generated by their government servants, passing the Washington Public Disclosure Act by a wide margin.

It took some time after the advent of text messages for Washington courts to address the new technology in the context of the PRA. Fair enough. But it has now been eight years since the Washington state Supreme Court in 2015 declared in Nissen v. Pierce County that text messages related to government business are governed by the PRA, even if they are received or sent on a public official or employee’s personal cell phone. How long will it be before this is adequately explained to state and local officials and officeholders?

These incidents share a key failing of the current state of affairs: enforcement of prescribed criminal penalties.

If Mayor Durkan, who previously served as U.S. Attorney for the Western District of Washington (the top federal law enforcement official in western Washington), could not be bothered to comply with the PRA, what assurance does the public have that other public servants are acting any differently? She should be held responsible for apparently willfully ignoring the requirements of the law.

April Sims deleted text messages just a few hours after she and other Redistricting Commission members voted to approve new redistricting plans that had not been written down or made public, yet she has never been held to account. Audra Byrd is no longer in a position to ignore the PRA because she was recalled by voters. But where is her punishment for apparently willfully violating the law?

In practice, elected and appointed officials are using private phones and other devices to conduct public business, a practice that imposes a burden on agencies and ultimately taxpayers by making it more difficult and costly to retrieve records in response to a PRA response.

Veteran journalist Robert McClure is a co-founder of InvestigateWest, a Seattle-based journalism studio covering the environment, public health and government accountability. He joined the WashCOG board in 2021.