Ep. 1 The Smoking Gun

Ep 1 The Smoking Gun

[AI VO] (0:00 - 0:31)

Before we start, a quick heads up. Some of the voices you'll hear reading documents in this podcast are AI generated, but the words are real. They come straight from public records, produced by real people inside government.

Further, if you're a public employee who's been asked to bend the rules, or if you've seen something that just doesn't sit right, we want to hear from you, confidentially, off the record. Your identity stays with us. You can reach out to us at contact at the public records officer.com.

[Nixon] (0:33 - 0:41)

One of the very first public announcements from newly sworn in Washington Governor Bob Ferguson wasn't about housing, healthcare, education. It was about Microsoft Teams?

[AI VO] (0:42 - 1:18)

As a new administration, we are taking a close look at the ways we're serving the people. That includes our use of communications tools.

I discussed the use of Teams chats with my cabinet in one of our first meetings. I am directing WaTech to suspend Teams automatic deletion feature for the agencies it supports until my team has completed a thorough six month evaluation. I am issuing the same direction to the agencies that have their own accounts.

We expect this change to be made by the end of the week.

[Nixon] (1:18 - 2:30)

Now, unless you follow open government drama for support like I do, that announcement

might have sounded like it came out of nowhere. I can imagine. I mean, there was no press release announcing the implementation of some auto deletion policy on Teams chats.

No public input, no vote, no audit. And yet, over the course of two years, millions of public records, many of them requested by journalists, attorneys, and citizens were silently and permanently destroyed. What Ferguson was reacting to wasn't just a policy failure, it was exposure.

A single deposition, a single moment, a slip of the tongue that triggered a chain reaction and forced the state to admit to something it had long tried to keep quiet. While you may not have known what Ferguson was referring to in that statement in that moment, I did know. I had known for over a year and a half about what was happening, thanks to an old boss of mine, the former executive director and public records officer of the 2021 Washington State Redistricting Commission, Lisa McLean.

During McLean's deposition in my wrongful termination lawsuit against the commission, lawsuit I won by the way, McLean let this little nugget slip out.

[AI VO] (2:31 - 2:44) (Deposition here pg. 25)

I mean, right now at the gambling commission, that happens. It's basically after seven days, I can't see messages that I sent. So they're just set to, you know, that's what I understood.

[Nixon] (2:44 - 2:51)

That moment made the deposition about something very different for everyone who ever believed public records weren't supposed to be destroyed all willy nilly like.

[Sowersby] (2:52 - 3:10)

I'm Shauna Sowersby. I am currently a reporter, state government reporter for the Seattle Times. Previously, I was with Cascade PBS very briefly.

And before that, I worked for McClatchy for two and a half years.

[Nixon] (3:10 - 3:14)

I asked Shauna how she remembers feeling when I told her about McLean's revelation.

[Sowersby] (3:14 - 3:27)

I was just really stunned. And I actually remember thinking at the time too, that maybe, you know, Lisa was incorrect. Maybe she just misspoke.

[Nixon] (3:27 - 3:45)

I distinctly in that moment, remember considering the potential for abuse of such a system. If one wanted to communicate about unethical or illegal acts, make sure you do it on a platform that's going to auto destroy communications before anyone might ask for it. Right.

And on that note, we cue the jam.

[AI Vo The Bandit] (3:46 - 3:56)

You're listening to the public records officer podcast, where we fight for your right to know.

Now, here's your host, Jamie Nixon.

[Nixon] (4:03 - 7:23)

This is the public records officer podcast. I am your host, Jamie Nixon. Yeah, I know I might be the most ironically named person in the open government space, right?

I mean, it's like a guy being named like Judge Innocent or something running ethics investigations, right? Where you're a dental insurance provider being like named Captain Crunch or some shit. But hey, here we are.

Just a couple of sidebar items before we dive into the actual story. I promise this won't take long, but it's all really important context for understanding the yarn I'm about to weave for you here. I know some of you are probably thinking like public records officer podcast, that's pretty bold.

Let me be clear. I am not an official public records officer. I do not have a badge.

I do not have a lanyard. I do not have a government-issued SharePoint account. I do not, and this is important, I do not have to attend mandatory open government trainings in a conference room.

That probably smells faintly of despair and dry race markers. But here's the thing. In Washington state, and this is not a joke, the only way to enforce the Public Records Act is through civil litigation.

The AG is not coming to save you. Quite the opposite in Washington's AG's case. Actually, we'll get to that.

The records ombuds isn't kicking down doors. There's no public records avengers squad. It's just us.

If someone breaks the law, you don't call it transparency cop. You become one. You write the letter, you file the lawsuit, you shine the light, maybe find a good friend or two to help you out.

And yeah, I guess sometimes you start a podcast with a name that sounds like a wisely rejected CBS procedural starring David Duchovny in a box of unindexed PST files or something. So no, I'm not a public records officer in a legal sense, but I do believe deeply that we all can be and should be. Anyone who gives a damn about democracy, accountability, anyone who's willing to ask hard questions, send annoying emails, and file the requests is in a very real way carrying the badge.

So if that's you, wear it justly. Something else I want to get out of the way right off at the top, because I already have heard some of this. I am not here to bash, rank, and file public employees.

I was one. And I believe, you know, I know the majority of state workers want to do, and on the whole are doing the right thing. Even when their bosses and the tools they are resourced with do not make it easy.

But this story, this one's about the people who made those systems worse. Circumstantially driven as much of it may have been, they all should have known better, and in some case did know better, but chose to stay silent or worse chose to hide the truth. Next point I need to make is that this story, one of the funky things about it for those of us involved in it or just following it closely, is that it's still unfolding.

There are a lot of questions still to be answered here. Looking at you over at the state auditor's office, I see you. Your close-up is coming.

If you listen to the trailer for the show, you may remember we led with this clip.

[Al Rose (SAO)] (7:24 - 7:41)

Video for the 08.29.2023 DAUG meeting here. Start at 49:40 –

1:22:20

Transcript is linked here.

I know that. I think you guys do this intentionally sometimes, like the cover-up about stuff for over a year that you knew wasn't being, hadn't been kept. I think intentionally sometimes the organization WANTEC doesn't talk to its lawyers because they've got a thing going on, and that's my concern.

[Nixon] (7:41 - 12:53)

That was Al Rose. Al wears two very important hats in state government. He is the director of legal affairs at the state auditor's office.

For those who aren't aware, the mission statement for the auditor's office reads, to promote accountability and transparency in government. Rose is also the chair of the state records committee, which is the entity charged with reviewing and maintaining the retention schedule that governs how long public records are to be held. While we will need to perhaps commit a whole episode to the auditor's office part in this story, let me leave it at this for now.

The auditor has been asked to clarify what Al Rose was talking about when he accused a different state agency of being purposely deceptive with the public. As far as I'm aware, they have yet to sensibly answer that question. This from the agency that's supposed to promote accountability and transparency?

Not a great look. All this to say that while we will be able to answer a lot of the questions that have come up throughout this investigation, there will be some that you will have to stay tuned in for as we ourselves wait for those answers to come forward. I have several records requests submitted regarding these matters, as well as other matters of import that have popped up.

I hope you'll follow along as we uncover yet more news from within the belly of Washington's bureaucratic beast. Now let's get back to me. You might be wondering who the hell is this guy and why does he care so much about Microsoft Teams?

And those are fair questions. I'm sure there are a lot of you who are aware of my requests, who work within the thing, who probably tried to find me on LinkedIn or looked me up on Facebook or whatever. Here's the deal.

I was a PIO at the Washington State Department of Health on MLK weekend in 2020 when the CDC called to confirm the first COVID case in the U.S. Wait, wait, wait. Was it novel coronavirus? Is that what we were calling it at first?

I ended up taking that call. I also had the regrettable task of confirming the first COVID death to CNN as part of that team. And during that time, I mean, we were using Microsoft Teams all the time.

I mean, early on, I think we were still kind of on Skype, but boy, by the time we got to like spring or summer, we were on Teams all the time. Remote policy calls, crisis coordination, sensitive planning, it was all happening in there and not just in the Teams channels. A distinction was an important difference that we will get to.

Before that, I worked in the state legislature and was a communications staffer. Along with working directly with several elected members, I covered the state government committee the year the leads tried to exempt themselves from the Public Records Act in under 48 hours with no hearings and tried to call it a transparency bill, which if you've been following the news on the legislature, sadly tracks. For those who may remember that gambit, it backfired badly.

The bill was vetoed by Governor Inslee after a massive public backlash. They didn't even bother trying to override the veto. The people made their intent known.

Yes, even the ledge should work transparently. Alas, they are still pushing for that secrecy. Only now they're doing it as secretly as they can get away with.

The Washington Coalition for Open Government is now my co-plaintiff in a lawsuit against the legislature where we are attempting to halt the legislature's use of legislative privilege, which will allow them to work in secret. That fight is still active, still in the courts, and we will discuss that issue at some length on this show as it goes forward. I tell you all of this not only to give you some idea of my background, but also to explain that I was weirdly perfectly positioned to understand the gravity of the admission Lisa McLean inadvertently made.

When she said those chats were being deleted every seven days, I knew what that meant. If it were true, I knew it meant retainable records were being destroyed daily. Your records, records you should have access to.

And after that, I suddenly found myself really wanting to submit a public records request and find out what the hell was going on. That request turned into what has now been this two-year-long investigation into what I believe is the illegal auto destruction of Washington State's public records. I've had some people say, Jamie, you're on a vendetta.

You're just sore. You got fired from redistricting. Some people call it petty.

You know, I call it pro-democracy advocacy with a paper trail. Oh, and if you're Brandi Kruse, hi, Brandi. You may think I'm a fake open government advocate.

Stick around. Stick around. I think we may find out who the phonies really are.

Think of this as like open government for grownups. Now let's talk briefly about the Public Records Act itself. Washington's Public Records Act isn't some obscure administrative rule.

It is a core part of Washington's democracy. It starts with a preamble that has what I think is some of the most eloquent pro-democracy prose you will ever read or hear. It's almost as though God herself, if you believe in that kind of thing, came from above and delivered it to all of us.

[AI VO] (12:53 - 13:15)

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.

[Nixon] (13:19 - 15:24)

It's not just poetic. It's the law. Passed by voters in 1972 by an overwhelming margin, the PRA guarantees the public has the right to inspect and copy most government records.

Emails, meeting notes, memos, texts, chats. If it documents government business, it's presumptively a public record. The idea is simple.

If the government is doing something in your name, with your money, and on your behalf, you should be able to see it. You ask for the receipts. They have to give you the receipts to review.

That's the deal. And if they destroy the record, that's not just inconvenient. It's not some small thing.

It's erasure. It's a threat to transparency, to journalism, due process, and to democratic governance. Now, do agencies get to withhold some stuff?

Yeah. The law allows for understandable exemptions for privacy, security, personal health care information, a few other categories. But they do not get to make records vanish.

They don't get to quietly auto-delete them after a week and pretend they never existed. That's not part of the deal. So when the state of Washington decided to automatically start destroying certain records without telling the public, without public debate, and without an understandable policy in many cases, it was more than just bad optics.

It was probably illegal. And that's where the story really starts. Because for all the jokes and receipts, this is serious stuff.

We're talking about systemic record destruction, laws broken, accountability ducked, and we're talking about people's lives, rights, and access to justice. And we're going to talk about how to fix it. Welcome back to the Public Records Officer podcast.

As discussed in the prologue, we were talking about records management when Joan Mell, my attorney, started asking McLean about her team's messages. Again, here's what McLean told us.

[AI VO] (15:24 - 15:37)

I mean, right now at the gambling commission, that happens. It's basically after seven days, I can't see messages that I sent. So they're just set to, you know, that's what I understood.

[Nixon] (15:37 - 15:52)

They're gone. They're gone. Just like that.

Seven days. Poof. Like my last shred of faith in government transparency.

And then I asked Mell if she thought Lisa understood what it was she was admitting to. I mean, did she understand the implications of it?

[Mell] (15:53 - 16:20)

Yeah, not at all. I mean, that is my recollection that you and I were what? And she was just like, no, this is what we do.

I mean, no big deal. It's almost, I think, my sense of it, and maybe I'm thinking of her and others, because since that time, I've gotten a lot of that same response. It's like, well, that's just the way it is.

I it just goes away.

[Nixon] (16:20 - 16:46)

I mean, think about this. The person once in charge of handling the public records of the redistricting commission is casually telling us about government communications vanishing into the digital ether after a week. It couldn't be right.

I mean, this had to be some kind of one-off weird thing. Was she just mistaken, nervous in a deposition? Did she simply not get it?

Sowersby wondered the same thing.

[Sowersby] (16:47 - 16:57)

And I actually remember thinking at the time, too, that maybe, you know, Lisa was incorrect. Maybe she just misspoke.

[Nixon] (16:57 - 17:27)

I had to know. I just had to know she misspoke or was somehow deleting her own messages without getting it. So we dove in.

If there's one thing a civic certain reporter know how to do, it's file public records requests. We each submitted requests to the Washington State Gambling Commission, where McLean was working. Our goal was simple.

We needed to confirm that there was work-related material happening on the platform. And what we got back, look, kind of confirmed everything.

[Sowersby] (17:28 - 17:39)

Once I got back from her, I mean, it was like work-related content in those messages. And so they were telling me, you know, normally, we wouldn't have these. Normally, these would have been gone.

[Nixon] (17:40 - 18:30)

Let that sink in a bit. The Gambling Commission, the state agency, admitted that the only reason we got those records is because we asked for them before the digital grim reaper swung its scythe. Normally, they'd been gone, vanished, permanently deleted.

This wasn't some glitch in the matrix. This was policy. The state-sanctioned erasure.

And once we knew it, we couldn't unknow it. So after we had confirmation that the Teams chats that were set to auto-delete in just seven days were loaded with materials requiring retention longer than seven days, Shawna dropped a post on X about what we'd found. On August 26, 2023, Shawna's post lights a fuse.

[Bernie Shah (WSTC)] (18:34 - 18:47) Transcript

Today, I learned all Washington State executive branch agencies, specifically ones that report to the governor, have their Microsoft Teams messages set to delete after seven days. How does this not violate the State Public Records Act?

[Nixon] (18:47 - 21:42)

That post, read out loud during a meeting between WaTech and executive branch records and information government staffers, that X post, Twitter tweet, whatever X post, whatever one wants to call it, it was the moment that the public found out in some small way, and everything kind of changed after that point. That post sent the state bureaucracy chatting internally like a bunch of middle schoolers who just found out someone liked someone else in third period social studies. Before Shawna's post, it was just Tuesday, another boring late August 2023 day in the bureaucratic beast.

Now, the whole damn thing had exploded. It was like dropping a tiny Mentos into a giant bottle of Diet Coke marked government transparency. The thing just went everywhere.

Now, we wouldn't know these conversations were happening for a few months. I got access to a lot of these conversations through additional public records requests for communications and records about Sowersby, myself, and the requests that we had already submitted. That's right.

I followed up the early requests we made with requests looking into how the bureaucracy was not just handling those requests. By that, I mean, were they being dutiful and fulsome in their response to those requests? But those follow-up requests gave us a ton of insight into how the state was talking about the issue once they knew the press and the public was aware.

Also, I had dropped requests looking for records related to the crafting and implementation of the seven-day policy with several executive agencies. When those records started turning up, we started to get a feel for just how much chaos was caused by Sowersby making these auto deletions public. Just three days after Sowersby's post on X, there's a DAUG meeting.

No, not those dogs. D-A-U-G. Dog.

Better known as the eDiscovery Accelerator User Group. This is a bi-weekly meeting that involves members of WaTech and members of the records and information government staffers from across the executive branch. WaTech is the executive branch's team of tech nerds.

They run the state's digital plumbing, email teams, cloud storage for big and small agencies alike. It's their job to make sure the tech works, the data is secure, and public records don't mysteriously vanish. But they've had some issues, especially when it comes to helping the agencies they serve retain and deliver records the public has a legal right to see.

I got this recording from a request I submitted with WaTech. Once I heard the audio from this meeting, I requested records from several more of these meetings. And boy howdy, for a group of people who would try to sell us that this was no big deal and totally legal, they did discuss this issue a lot.

This audio is from the August 29th, 2023 DAUG meeting, days after Sowersby's post.

[Aaron Cuoio (WaTech)] (21:43 - 22:32) Transcript 

Okay, let's talk about teams. So yesterday in the chats, I asked a question about what's called Sowersby requests. So I know of a couple agencies that got pinged with an all teams chat.

So the reason I'm bringing this up is because it has spun up to the highest of highest levels, which means the governor himself. And I wanted to just prep everybody that the storm is happening in case you didn't know. Taking a step back, the media in general has found out that the state of Washington only keeps chats for seven days and they're asking for reasons why because the appearances were not being honest.

[Nixon] (22:32 - 22:44)

Those are the words of Aaron Cuoio. Hope I'm saying that right. I don't want to get that wrong.

So forgive me if I've got it wrong. It's C-U-O-I-O, Aaron Cuoio. What was that last bit there again?

[Cuoio] (22:45 - 22:55) Transcript

Taking a step back, the media in general has found out that the state of Washington only keeps chats for seven days and they're asking for reasons why because the appearances were not being honest.

[Nixon] (22:57 - 23:38)

The appearances were not being honest. WaTech found itself suddenly in a full blown crisis communication scramble. You see, for years, this system of auto deleting chats, it had been working exactly as WaTech had intended, but perhaps not in the way the law intended.

It was kind of like that scene in Office Space where the guys realized the penny shaving algorithm is working too good. Turns out public records destruction on an industrial scale makes people a little twitchy. Who knew?

Leading the charge of twitchy records managers, you had folks like Rosie Bigelow from the Department of Fish and Wildlife, who had been in the trenches since the very beginning. She'd seen this train wreck coming for years.

[Rosie Bigelow (DFW)] (23:39 - 25:12) Transcript

So I just wanted to jump in to Jason and Erin. I am so sorry. You guys are really stuck in the middle of all of this.

You guys are technicians that don't get paid enough to deal with all of this stuff and to be caught in the middle between the applications that Microsoft have decided to give us, whether it's actually good for business or not, and the heads of WaTech who have decided to lay this all on your shoulders. What I will say is that I am very upset that they have put you guys in this position and that they are not here themselves to defend these decisions.

Because to me, as someone who's been there from the very beginning, who remembers that WaTech meeting where Jim Weaver said that WaTech is going to move to O365 first and we're going to eat our own dog food.

Why aren't they here to defend their decisions? Because it's a decision as well to stay in a field that is putting us at risk. And there's a point where it just becomes sunk cost fallacy.

[Nixon] (25:12 - 26:04)

Oh, that's some sunk cost fallacy. That's peak Gen X verbiage right there. Bigelow, who I will say comes off as a bit of a hero in the story, in my opinion, was and is right.

Sunk cost fallacy is the irrational tendency to keep investing in something just because you've already invested in it, even if continuing makes no logical sense. It's when the government knows the software doesn't work, knows that records are disappearing, knows they're about to get sued, but keeps doing it anyway, because they're already pointing up 10 million and some legislative committee PowerPoint on it or something. The sentiment across many agencies was clear.

This mess wasn't their fault. They were just operating within the parameters they'd been given, parameters that conveniently or otherwise was making records disappear. In another clip from that meeting, Quoio discusses just how many of your public records are being destroyed each week.

[Cuoio] (26:04 - 26:27) Transcript

Picked up a search this morning to see how many chats we had still running. We're approaching the 100 million mark and presumably most of those are all within the last two weeks of chats. So the more we raise that limit, the more this number goes big.

You can see why agencies want to one day get it gone.

[Nixon] (26:28 - 26:47)

Get it gone. Boy, nothing says we value transparency like auto-delete in less than seven

days, right? One day, two days, just gone.

In regards to the MS-365 software limitations that appear to be at the core of the retention problems Watek was struggling to figure out, Al Rose says this.

[Jason Beers (WaTech)] (26:47 - 26:58) Transcript

So wouldn't that happen no matter what the retention was? If you have a 30-day retention? No.

If you have a 30-day retention, you're going to have something going on.

[Rose] (26:58 - 27:11) Transcript

That's the problem with a lot of this Microsoft crap that I don't think you guys understand

with regard to public records. This person that put it out there that says, it takes me seven days to get that out and that could disappear in that amount of time. Yes.

And that's a huge liability for these agents.

[Beers] (27:13 - 27:44) Transcript

Well, I understand. I completely understand. Right now, we have the technology that we

have and we're trying to make it work for you all as best as we can.

As far as the issue of things disappearing after a request, whether we had a seven-day chat or a six-month chat, there's going to be a period of time where the request came in and before you can produce it, things will have expired.

[Rose] (27:45 - 28:28) Transcript

Yes, you can say that. But let's be real here. The longer window makes that less likely that's going to occur because you've got guys here talking about it takes seven days to do it down.

Oh, that's very convenient with the seven-day limit we have. The technology isn't working the way optimally. And so, yes, a six-month or a year reduces any of that.

I wish we didn't have it at all, but we got told some stuff that didn't turn out to be true and this is what we're stuck with. But seven days is very short when you're talking about seven days to download your files.

[Nixon] (28:29 - 29:39)

Stuck with. That phrase right there encapsulates the whole damn problem. They were stuck, all right.

Stuck between public demanding answers in a system designed to make the answers vanish. The deeper we dug, the more we realized this wasn't just a simple case of digital amnesia.

Some agencies, some individuals were actively and quite brazenly trying to stop the truth from seeing the light of day.

After the break, we're going to tell you how and who. Stick with us. Welcome back.

So, as we were discussing, shockwaves from Shauna's posts rippled through the state bureaucracy. Suddenly, this little seven-day audit leak policy and quiet bureaucratic convenience was under a very public microscope. And in the dog meetings and the records that we dug up from this moment in time, you could almost hear the collective gulp.

Because while they talked about transitory messages and how it was all part of the plan, the reality was a lot messier. They knew that if records vanished and those records were requested, there would be consequences. Big consequences.

[Rose] (29:40 - 30:42) Transcript

Everything you generate is a public record. Everything you generate is a public record. You get rid of it based on destruction schedules.

And one of those is temporary or transitory, which you can get rid of as soon as you don't need it. But if a request comes in, you have to provide that which you have. And if you can't find it now because it's gone, that's a public record that's been destroyed after a request came in.

So, temporary and transitory just means you don't have to preserve it. It's not under any dam. But anything we do is a public record.

So, when these things come in and there was a request and who's going to find this, who knows. But if it was destroyed after the request came in, that agency is hooped. There's been settlements and there's been lawsuits about this kind of stuff.

Not this law, not this technology, but destruction of records inadvertently after a request came in and you will pay money.

[Nixon] (30:42 - 31:13)

Hooped? Pay money? Not exactly the kind of word you want associated with a state agency's IT policy.

And the stakes got even higher when they admitted that the very process of trying to find these records was ironically not stopping them from disappearing. During that August 29th, 2023 DOG meeting, a big problem crystallizes. A member of the group asked Watek whether or not chats are deleting while they wait for the returns of the initial searches for such records.

[Casey Sweeney (ECO)] (31:13 - 31:36) Transcript

But I guess if I understand what Davis is saying, if it's taken us three days to load, like I'm already at 24 hours now on this review set trying to load these into the review set. So, over that course of that 24 hours, how many of those that I got hits on have now expired? If it takes three days, that's three days where things have been expiring before we can even get our hands on them.

[Cuoio] (31:37 - 31:58) Transcript That is true.

Yeah, I don't know what to tell you. I have not the first to ask that question. It's kind of what Jason and I talk with Microsoft every Monday morning about is sometimes it takes seven, eight days for a search in a review set to complete and what's happened in between that period of time.

[Nixon] (31:58 - 33:33)

I don't know what to tell you. That's the sound of a system buckling under the weight of its own flawed design. I don't know what to tell you.

You can see here something has gone very, very wrong. The team charged with making sure that the public has access to the records they need to hold their government to account, both on the records and information governance side as well as the tech side, isn't sure what to tell you about the fact that they can't guarantee you will get those records before they are destroyed. Thoughts and prayers.

Thoughts and prayers. I think I don't know what to tell you is going to be the catchphrase here. Here's where the story takes a bit of a dark turn.

A turn we certainly weren't expecting. You see, when push came to shove, some agencies didn't just lament the system's flaws. They weaponized them.

They started playing hardball and the goal seemed to be less about transparency and more about attrition. Think about it. You even got with your hand in the The easiest thing to do is confess, apologize, you know, promise to replace or buy more cookies.

But some of these agencies, they decided to rebuild the cookie jar to be even harder to open. First, there's the subtle art of the, let's call it the deterrent fee. Sowersby found herself on the receiving end of this particular bureaucratic obfuscation masterpiece.

[Sowersby] (33:34 - 34:22)

Yeah, I submitted this request. I don't even remember how many different agencies. I just kind of randomly selected agencies just to, you know, just because we knew that all of them were doing it.

And yeah, so I got the request or I got the notification back the day. DFW says, we're going to charge you, you know, 700 some dollars in ecology, wanted $500. This is the first time I've ever been charged for records.

Mind you, I've never ever, if I've filed a really large request or something, you know, I've never been charged that much money. And yeah, I mean, obviously, I don't have the money for that. I'm a reporter.

But I mean, it was astonishing. It just seemed really weird at the time, too. I remember that. Just thinking like, this is really odd.

[Nixon] (34:22 - 35:17)

You see, Sowersby had asked for a week of Teams chats from DFW. Documents that, according to the state, were supposed to be transitory, ephemeral, not worth much. And yet to get a whole week's worth of them, DFW, the Department of Fish and Wildlife, demanded over $700 up front.

Now, agencies are allowed to charge some nominal fees based on the number of records you request and the amount of staff time it may take to deliver those records. However, DFW gave Sowersby no option to pay a small portion up front to begin production of records as is allowed by law. Just a full invoice of over $700.

This up front fee was part of a plan, as their own internal communications reveal, designed to have Sowersby give up on her request. Sowersby understandably was furious. This wasn't just a fee. It felt like a personal affront. 

[Sowersby] (35:18 - 35:53)

Again, you know, just insulting, honestly. I, it just felt, you know, had I had that option, I

maybe would have been able to pay that and then figure out something, you know, buy me a little bit of time to, you know, get the money or something on the other end. But yeah, I mean, just having it not even there, you know, having them, you know, I think everything was kind of confirmed for, for me at that point.

You know, all of these things, they really were just trying to prevent me from getting them all together.

[Nixon] (35:54 - 36:13)

And this is where Joan Mell, my attorney, steps in. Because when an agency plays games with public records, Joan doesn't just see a legal fight. She sees an insult to democracy.

I put Sowersby in touch with Mell. Sowersby remembers that Mell wasn't very happy with what she was hearing. That's when Mell decided to call DFW's bluff.

[Mell] (36:13 - 36:54)

I just so value people like you and Shauna doing the work that you do. And I know that Shauna didn't have the money to pay for the request. And it was, it was like $664 or $69.

I don't know, it was close to 700 bucks. And so she was, was coming up against the deadline that her request was going to expire. And she was simply not going to get the information.

So I wrote a check. I wrote a check to pay for the request. And I think, I think that really stymied the agency because boy, did we get the runaround then.

[Mell] (36:55 - 38:00)

Oh, they got the runaround. All right. They cashed Joan's check, but then in the mood that screams, we don't want this paper trail.

They eventually refunded the money.

They, they went into, I don't know. They shifted their thinking and, and they didn't immediately produce the records. They did cash my check.

As I recall, they somehow decided that they didn't want to have to charge what they charge and they didn't want to have to give us the records right away. So rather than just producing the records and give, give us what I paid for, they decided, and this was like, it didn't happen overnight. It was like this big, long, prolonged deal.

And I'm like, I want my record. You know, she gets the records. I just paid you.

And then all of a sudden they say, well, no, we're not going to charge for it. We'll produce them in installments. And then I think they sent the check back to Shauna.

They didn't even give me the check back. It was my money. They didn't give it back to me. I think they tried to return it to Shauna.

[Nixon] (38:00 - 38:23)

We later learned that DFW public records officer Anne Masias after being asked about it by fellow DFW record staffer Keri Street, made the call to charge Sowersby upfront with no option to pay 10% in the hope of dissuading her from collecting the records. We are about to hear as an AI generated voiceover reading taken directly from the team's chat where Messiah's and street had this discussion.

[AI VO] (38:23 - 38:51)

Do we want all records paid for on two, three, two, four, five, or is it 10% deposit to start production sufficient? Is this the chat one? Yes.

Charge for the whole thing. If they pay, are we obligated to provide all 59 K of records in phase one? No, I will be surprised if they pay.

They didn't for other agencies. I don't think they will pay. I just didn't want us to have to review and produce that many records by February street.

[Nixon] (38:51 - 39:20)

Then asked another staffer, Kelly young to modify the invoices DFW uses. 

That's right. DFW normally has a line on their invoices for records requesters that makes it clear that the 10% option is available to them to begin production of responsive records. DFW modified that template invoice to erase the 10% option completely. Well, you are about to hear as an AI generated voiceover reading taking directly from the email thread where street and young had this discussion.

[AI VO] (39:20 - 40:27)

Do you want me to say that phase one is 59,127 or that we have identified 59,127 and peas and the 10% deposit of $73 and 91 cents is due prior to preparation of these records. The total cost is $739 and nine cents. I'm just asking because I'm wondering if we would be able to provide all 59,000 in phase one.

I just confirmed we are to invoice the total cost, no deposit, take the phase one off to prevent confusion.

Our invoice form states the payment terms as 10% due prior to preparation.

Am I supposed to take that off now? We have always left those payment terms on the invoice form. Even when we have charged for all identified records.

Can you now please confirm if I am to leave the payment terms on the form or take them off?

[Nixon] (40:27 - 43:50)

This wasn't public service. This was a shakedown, a taxpayer funded shakedown of state government report. And while Mel ultimately paid the fee to force their hand, eventually forcing a refund, their intent was clear.

Make the request so expensive, so difficult that transparency becomes a luxury for those who can afford it. The weaponization of public records fees in the effort to dissuade requesters from obtaining records they have every right to and have already paid to have generated with their tax dollars is as gross as it gets. Shame on those public servants using fees in this manner.

And no, DFW is not the only one. Ecology charged over $500 for similar requests. DOH is currently charging me nearly $1,000 for a request they are saying will take them 36 years to complete.

But hey, at least DOH has offered me the 10% option, right? But you don't have to just take my word for it that this is what happened. Maybe I'm making it all up.

You can see the proof with your own eyes. Head over to thepublicrecordsofficer.com. We've got all the documents over there.

You'll find DFW's internal emails instructing a staffer to literally modify the usual invoice form, removing that 10% deposit option just for Sowersby. We'll show you her invoice right next to the invoices sent to other requesters so you can see the blatant difference. And yes, you'll find the team's chat and email threads that expose these corrupt acts in plain sight.

It's all there for your verification. Because unlike some state agencies, we believe in providing receipts.

But we're just scratching the surface here.

The next level of obstruction was perhaps even more brazen and potentially illegal. This next controversy stems from a screenshot of a team's chat I received from a request submitted to WaTech. In it, various public records staffers from various agencies were discussing how to respond to Shauna's initial wave of records requests.

And in that chat, one particular public records officer offered some rather aggressive advice. Her name is Pamela Potwin. She's a public records officer at the Washington State Department of Agriculture.

You see, it was Ms. Potwin who dropped the idea of using prepayment invoices. Potwin's loathsome suggestion delivered right there in the chat was to hit requesters with a big upfront fee. Sound familiar?

Yes, this chat happens before the DFW charged Sowersby over $700 for her request. After suggesting agencies send Sowersby's request to their assistant attorney generals in the hope that they declare the request too broad and thereby force Sowersby to in some way give up on or be forced to limit the request, she then gives the whole group some rather infuriating advice. Her exact words in a message that I think should live in infamy, quote, if all else fails, get that down payment invoice ready, unquote.

She even went so far as to compare reporters like Sowersby to, quote, frequent flyer requester known to harass the city of Seattle, unquote. When Sowersby saw that, she was stunned.

[Sowersby] (43:51 - 44:24)

Again, I mean, I don't know. I was so shocked. Are they really saying this?

Are they really talking about this? Are they really talking about how to prevent a reporter and comparing a reporter to a frequent flyer? I think that's the other thing that I just kept thinking is like, I thought that these people were supposed to help us.

And here we are seeing blatantly that they are just trying to hide things and they are trying to keep things from us. I mean, it's like the stuff of movies, seriously.

[Nixon] (44:25 - 45:38)

Oh, it gets worse. Unless you think that was bad. Pot was unethical and possibly illegal actions didn't stop at just suggesting obstruction.

We uncovered evidence that Pamela Potwin, after I submitted a request at WSDA that should have returned the same chat with the same loathsome advice, she decided to take matters into her own hands. You see, she deleted her own comments from that threat.

That's right.

She deleted work-related and quite possibly retainable material from a public record. And then when her agency provided the records I requested, the version of that chat they delivered, it was missing the telltale signs that her messages in that chat had been deleted.

In the copy of the chat Potwin sent me, she had screenshotted out the part of the record where her comments should have been.

She modified a public record so as not to deliver it in total per my request. In Washington State, it is a felony to knowingly destroy or modify a public record before it is met retention. I asked my attorney if Pamela Potwin may have committed that felony.

[Mell] (45:43 - 46:07)

Right. She manipulated the public record. Should be.

Should be. I mean, yes, it is a felony under the law. And I have asked law enforcement and or prosecutors to entertain criminal prosecution and have been flatly rejected.

They do not want to do it.

[Nixon] (46:08 - 48:09)

A felony under the law. That's not hyperbole. That's the code.

This wasn't just poor record keeping. This was active suppression of the people's records. And yeah, despite several high profile instances of powerful people destroying public records before they've met retention.

Just Google Seattle Police Chief Carmen Best, Seattle Mayor Jenny Durkan, redistricting Commissioner April Sims, and the deletion of text messages and see what you find. Despite all that, prosecutors have so far refused to use the law to hold anyone to account for such destructions of the people's property.

And yet another story, April Sims flat out admitted to then AG Bob Ferguson that she deleted work-related retainable texts that dealt directly with the negotiation of the 2021 redistricting commission during the final deadline approaching hours.

Ferguson did nothing. He could have charged her with a felony. He could have held her to account.

He didn't. So why would anybody else think that it's going to happen to them? Why would anybody else think that they're going to be held to account if she didn't for such a blatant violation that she admitted to?

Why would anybody else get in trouble? Just delete it, bro. Lack of accountability is a common theme throughout this story.