Ep. 12 Suing WaTech and Gov; AG's Model Rules; Harrell's Failures

Ep. 12 Suing WaTech and Gov; AG's Model Rules;

Harrell's Failures

[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.

[AI VO] (0:36 - 0:46)

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] (0:54 - 5:15)

Hello and welcome. This is the public records officer podcast. I am your host, Jamie Nixon.

Whoa, what a week. If you are a fan of public disclosure, we are living in the golden age of exposing government malpractice. I mean, I guess if you're a fan of government malpractice, you're probably even having a better week.

Let's be honest about it. On today's episode, the Washington State Attorney General's office just released their proposed updates to the model rules for public disclosure, offering some nice, sensible, common sense changes. We're going to give credit where credit is due, and then we will detail a list of things we believe that are very important that they left out, some opportunities to get this right, make it better.

We're also checking in on one of the more absurd stories I have not yet talked with you too much about. I have mentioned it in past episodes briefly, but now we'll open it up a bit. This is about the 1.5 terabytes of Teams chat data that was accidentally deleted in 2020. The state's response to the records requests I've submitted over this matter are so painfully slow and minimal. It's just disillusioning. Actually, I'll give WaTech credit here.

Their response to this request has been pretty good. I don't think they've had to delay me. They've delivered four installments, haven't delayed me once, which for them is very good.

And they've been on time just about every time. And speaking of accountability, we'll talk about the lawsuit I just filed against WaTech for the third and final failed attempt to deliver records for a request I have talked about a bit on the show in the last couple episodes. I have a big update there.

But first, we're going to start in Seattle, where Mayor Bruce Harrell's office is making a spirited run for the title of most opaque municipal government in Washington. As always, the transcript for this episode, which includes links to all the documents and records referenced in this week will be the AG's proposed rules, the Urbanist article, legal complaints will be available on the website at thepublicrecordsofficer.com. You can also find a direct link to the transcript in the show notes.

And without further ado, last week, the Urbanist published a piece by Carolyn Bick, detailing how Mayor Bruce Harrell's office seems to have deleted or is now withholding crucial records related to an investigation into his chief of staff, Andrew Meyerberg. Apparently, the Urbanist has been unsuccessfully trying to obtain a copy of the negotiation documents used to make a crucial legal decision regarding Meyerberg. Adding insult to injury, the article details that the mayor's office appears to be violating the terms of the settlement agreement that the city reached with the Seattle Times in 2023.

This was a settlement prompted by the discovery that former Mayor Jenny Durkan and former police chief Carmen Best deleted crucial text messages concerning the 2020 protests. I know, it's not like you've heard this one before, right? High profile politician's office is caught holding, deleting or simply losing key records relating to internal investigations.

Yeah, I know. And unrelated news, water remains wet, right? Yeah.

This, this article kind of highlights one of the central problems I've been trying to get across when it comes to this endemic culture of secrecy in Washington. This latest example plays perfectly into one of the most dangerous myths public entities love to perpetuate. And this is the idea that we, the public, can simply trust individual government employees to handle the destruction of the public records they themselves generate on their own honor, right?

We're supposed to simply trust that these staffers are really less concerned with their own outcomes than they are the people's right to know. It is apparently up to individuals, Seattle city employees to move their text messages to some appropriate retention folders that they set up after this settlement with the Seattle Times. If they don't, then they delete those messages from their phones.

Those messages are gone forever. So we're trusting them in the first place to move these into the proper folders. Also, those messages that get into those backup folders can in fact just be deleted by whoever has access to those folders.

If those messages are deleted from those folders and they were deleted from the phone from where they originally came, then those messages are gone forever.

[Cuoio (WaTech)] (5:16 - 5:17) Get it gone.

[Nixon] (5:17 - 5:32)

We are consistently told that record staff and legal counsel are trained and we can trust them to make the distinction between a substantive public record and a transitory non-record before they hit the delete button. But the evidence tells us a very different story, right?

[Rose (SAO)] (5:32 - 5:35)

That's a request for information and you don't have to answer those questions.

[Nixon] (5:35 - 7:03)

When former mayor of Seattle, Jenny Durkan, and former Seattle police chief, Carmen Best, were caught up in litigation over police conduct during the 2020 protests, their text messages, messages that contained critical substantive government business, were deleted. This wasn't some clerical error. These were high-level officials deleting records that led to a settlement with the Seattle Times.

Similarly, former state redistricting commissioner, April Sims, made headlines for deleting hundreds of text messages related to her work, claiming they were all personal or transitory.

They weren't. I know. I was the one who turned those chats over to the press. The message from the government is always the same.

Trust us, we only deleted the unimportant stuff. No worry about that. Yeah, that 50 million or whatever Teams messages every week, none of that is important.

But as this latest urbanist piece shows, and as this podcast has made plain repeatedly, when left to their own devices, state and local staffers just too often default to a position of secrecy. The temptation to delete anything inconvenient is simply too great and it is too easy. This is why the seven-day auto deletion policy for Microsoft Teams was such a disaster and why we cannot afford to rely on an honor system with no oversight or auditing.

Public records preservation must be handled by records management staff and secured by technology. It should certainly not be left to the political discretion of the individuals who wrote the record.

[Cuoio (WaTech)] (7:03 - 7:04) Get it gone.

[Nixon] (7:12 - 8:52)

All right. Let's get to the model rules here. It's a good start.

It's a good start. In early October, Attorney General Nick Brown released proposed amendments to the Attorney General's office's model rules for the Public Records Act. These rules are important because they provide guidance to every government agency in the state and AG Brown deserves credit here.

This is a follow-through on a promise made by his predecessor, now Governor Bob Ferguson, in response to a petition filed by news media members who were frustrated by a myriad of issues that have all but rendered the public record system so slow as to be almost unusable for journalists trying to report on matters of great importance in real time. And to be fair, the proposals he put forward are sensible. They encourage agencies to triage requests into simple and complex tracks to help speed things up and generally aim for increased diligence and responsiveness.

I know. No one's going to argue against being diligent and responsive. That's like a politician promising to be nice to puppies or something.

It's the bare minimum, I get it. But what's quite disappointing is what the proposals fail to address, I think. There's some massive elephant-in-the-room issues that, you know, I and Sean Sowersby and others have exposed regarding the world of modern electronic communication.

I think those need to be addressed here. So, omission number one. Ending the auto-deletion experiment.

The most glaring omission is a clear unequivocal end to the teams or just otherwise, you know, the auto-deletion experiment. The AG needs to strengthen the model rules to mandate that technology must be congruent with the public records law.

[Rose (SAO)] (8:52 - 8:56)

And I don't know if you, how could you not even realize that?

[Nixon] (8:56 - 11:00)

The state does not get to try and stuff the law into the restrictive technical limitations of whatever software they buy. The law does not allow for this. If a communications platform is going to be used for government business, it must retain those records according to established retention schedules, not auto-delete them after seven or 30 days.

The AG should make clear that this experiment is over with and that the technology must serve the law, not the other way around. I mean, look what we have gone through over this matter. The idea that there is going to be no strengthening of that section of the model rules seems a massive oversight by the Attorney General.

Omission two. The Attorney General needs to mandate a dutiful search standard. We've learned often through litigation that many agencies are still not searching all communications platforms unless they are explicitly asked to.

This means if you don't specifically name Teams chats, Jabber chats, Slack, or other texts, et cetera, agencies may simply skip those platforms and certify they conducted a thorough search. The model rules needs to include clear guidance on what constitutes a dutiful search, mandating a list of all communications and records storage platforms used by the agency somewhere on the website. This would allow requesters to craft a fulsome request and ensure that no particular communications platform is overlooked.

And a clear statement that an agency must search all platforms that reasonably house responsive public records, regardless of whether the platform was explicitly named in the request. And this probably seems duplicative to what the law already says, but apparently it needs to be underlined. There are several agencies taking liberties with this.

Oh, they didn't ask for Teams chats, so I didn't search there. Oh, I sure am glad they didn't ask for the Slack chats. This needs to change.

Omission three from the AG's proposed changes to the model rules. The transitory loophole.

[Johnson (DOC)] (11:00 - 11:06)

Staff either are not getting training on that or don't even know what the word transitory even means.

[Nixon] (11:06 - 14:24)

Agencies are avoiding retention requirements by declaring platforms like Teams and personal texts as transitory, relying on the honor system we just talked about. I have documents like the Washington State Department of Agriculture Policy which state that while staff are given state phones, they are encouraged to delete their transitory texts on their honor as soon as possible. And that's a direct quote from their policy document.

I'm sure that they're not deleting anything they shouldn't, right? Meanwhile, the AGO itself was, is reportedly using a instant messaging system called Jabber and training staff to close down their computer daily so that those Jabber chats would be gone the moment they rebooted their computers. Just gone.

I mean, they tell staff not to use it for work-related matters, but based on the work we've done here, that honor system is, you know, not quite up to snuff. The model rules should demand that state-issued cell phones must be capable of having the data stored, searched, and disclosed by records and information governance staffers. And staffers should be told clearly that use of personal cell phones for state business will result in disciplinary action up to and including termination.

I'm open to there being some small caveat for emergency situations when somebody has to be gotten a hold of or something like that, but outside of that, no more use of personal cell phones. If you're going to be expected to use a cell phone and you're under state employment, they should give you a phone so they can track the work. Well, mission four, stop defending known deletions.

This, for me, is at the heart of the matter. The AG who has a higher duty to defend the laws of the state, including the Public Records Act, it is a law, is currently engaged in the defense of agencies and staff who have knowingly deleted or auto-deleted records that they know have not met retention requirements. This defense creates a perverse incentive for public entities.

Destroy the records before the request comes in. If the AG continues to defend this behavior, they may as well consider themselves complicit in the premature destruction of the people's records. The AG should make clear in the model rules that in cases where the conflict exists between defending an agency and defending the PRA, the AG will choose the side of the requester and the law.

And let's be absolutely clear about this. The attorney general's office has the power to do this. So you'll say, well, attorney general's got to do what his client tells him.

No, no, no, that's not how it works. According to the revised code of Washington, the AG is authorized to compromise or settle any lawsuit claim or demand against the state and is not required to have consent from the agency or official concerned to compromise or settle any suit. This isn't a legal impossibility.

It's a policy choice the AG makes to continue to make this defense in court. To protect an agency over the public's right to accountability, the AG must use this power to stop incentivizing the premature destruction of the people's records.

[Rose (SAO)] (14:25 - 14:31)

Uh, you guys don't get this, I don't think. And I don't think you take it seriously. And I don't know if you hear the fear in people's voices here.

[Nixon] (14:31 - 15:31)

Mission five, electronic payments. God, this one, this should not be a thing. This should not be a thing in 2025, but here we go.

And finally, the absurdity of the payment system. The law requires agencies to make access as easy and obstacle-free as possible. And yet many still force people to send physical checks, sometimes for invoices as low as five cents.

That's right. Five cents. I had three checks go missing through this process so far.

I've had others arrive late requiring a second check to be sent. Asking requesters to pay five cents using a check that costs more than that to process is not just ridiculous. It's a ridiculous waste of staff time, requester time, and taxpayer resources.

I mean, the tech geeks at WaTech haven't even set up a simple electronic payment portal. We take one of their staffers into 30 minutes to get that done. So why haven't they?

[Cuoio (WaTech)] (15:31 - 15:35)

Get it gone. They want an explanation. We don't have to give them an explanation.

[Nixon] (15:35 - 21:49)

Keep the option for physical checks for those who still prefer using physical checks. But denying requesters an electronic payment option in 2025 is simply creating unnecessary obstacles for requesters in the hope that they'll fail to get checks to agencies in time and thus allow agencies to cancel requests for lack of payment. And that's just not acceptable.

And if you don't fill the checkout just right, you got to put the public, the request number on the check in the right spot. You got addresses with five lines of address, five, six lines of address on it. I mean, it's really absurd when there should just be a click through, pay for it, done.

All that said, there is actually some good news is that you can engage in the process to help update the model rules. You really can. The attorney general's office has opened a formal public comment period on these proposed rules.

If you agree that these omissions, ending audit deletion, mandating dutiful searches, enforcing electronic payments need to be addressed, you can make your voice heard directly. You can submit written comments to the AGO at agorulemakingatatg.wa.gov. Again, that's agorulemakingatatg.wa.gov. And you can do that until November 17th, 2025. And even better, you could attend the in-person hearing on November 6th, 2025 from three to 5 p.m. at the John A. Sherberg building in Olympia, Washington. This is on the legislative campus. For those who aren't aware, you'd go to the legislative building and one of the buildings there is the JAC building, we call it, J-A-C.

This is the moment to stop whispering about the problems and start shouting about solutions. We have a window here where we can make it clear to somebody with real power to make a real difference in this that there are some things that need to be addressed. Okay.

Now let's talk about the deletion of 1.5 terabytes of Teams data by WaTech in 2020. Before we discuss the absurdity of what's currently happening with this story, I'm going to set up the scene a little bit, give you a little background. Many people think the whole Teams deletion controversy began in 2021.

That's the date I kind of pointed to when they all decided they were going to go to the seven-day thing. It seems like the first real big alarm bell for some of the problems that were endemic to the Teams software itself versus the state's retention requirements happened in June of 2020. In June 2020, WaTech suffered a catastrophic data loss involving Microsoft Teams.

We now know from the records they have delivered that the total deletion event was potentially 1.59 terabytes of chat data. The records from WaTech paint a picture of total internal panic and chaos when this ensues. One WaTech staffer wrote that he spent three hours frantically attempting to put records on a legal hold because the e-discovery process was very cumbersome, noting that it was impossible to manually search for every affected user.

Now, to be fair to WaTech, they claimed they were able to recover a huge chunk around 1.2 terabytes of that data. Here's where the story gets a little bit kooky for me. Because the data was recovered from a deletion event, WaTech wanted to ensure it wouldn't delete again.

They initially put the entire batch of recovered data on an indefinite litigation hold. Litigation holds have a little bit more, you know, staying power. They're not supposed to get deleted.

But then a few months later in September 2020, WaTech issued service notifications announcing they were lifting the indefinite litigation hold and would be deleting the recovered 1.2 terabytes of data on October 9th, 2020. And the reason was that the need for litigation hold has passed. There seemed to be little concern about the content or function of these records.

I do recall in the records that I've received from WaTech that some people were able to request getting their agency's records in PST format, which isn't a great format to get it back in, in the first place. But there was apparently some effort, like some agencies could request it and some agencies did, I believe. But that's kind of the long and short of the history here, right?

It's kind of a quick version. Now that you know that, let's move on to the ongoing saga. What's happening now is less of a records disclosure and more of a demonstration of state obstruction.

I first filed a request with WaTech on this, right? Based on what I saw in the first installment with WaTech, I thought, oh, it's going to be important to see what the GOV's office and the AGO has on this issue. It was curious to me after such a massive data loss that the first installment of the WaTech request netted zero communications between WaTech and either the GOV's office or the AG's office.

And they sent me a number of files in that first installment. It was a pretty sizable installment and it was just, I think the dates went from like June 20th to somewhere into early September and nowhere in there was there a communication between WaTech and those two offices. So I submitted requests with the AG and the GOV's office for their records into what happened here, thinking that maybe it would be faster and just more efficient.

And I could also get some of the internal discussion that might've happened around this to see just how badly this might've screwed some things up for people. Yeah, so before we get to the news on those two specific requests, I want to reiterate that I have now received four barely substantial installments from WaTech on the original request into this matter, covering a window of time between June, 2020 and December, 2020, about the deletion of

1.5 terabytes of Teams data on accident. None of those installments now, none of them show any communications between WaTech and the AG and or the GOV's office, which, you know, seems pretty weird.

I'm an agency employee. I definitely would have thought such an event should be immediately reported to both of those offices given the stakes, not only for potential litigation matters at the AG's office, but just public records issues throughout the bureaucracy. I mean, this affected everybody who was on Teams in 2020.

[Rose (SAO)] (21:49 - 21:52)

And I don't know if you, how could you not even realize that?

[Nixon] (21:52 - 22:26)

That WaTech request is still open. So it is possible those communications may come, but it's already eye-raising that none have come after four sizable installments from WaTech on this issue. All right, now let's get to my request with the AG on this issue.

The most recent AGO disbursement, which required a delay notice and two months to deliver, contained two records. Let me say that again. The most recent AGO disbursement, which required a delay notice and two months to deliver, netted me two whole records over four pages.

[Rose (SAO)] (22:26 - 22:30)

You guys don't get this, I don't think, and I don't think you take it seriously.

[Nixon] (22:30 - 23:38)

And these records were WaTech service alerts that went to an AGO staffer. Those alerts confirmed that AGO received formal notice of the massive data loss and the planned deletion of what was at that point litigation held data, right? I mean, they may not have been holding it specifically for litigation reasons, but it was on a litigation hold.

And those service alerts made that clear that those records were on litigation hold, right? So yet to date, after two installments from the AG's office on this matter, I have seen zero internal AGO communication about the risk analysis or coordination required by this massive deletion event. The AGO has produced only two inbound notifications and 20 pages of highly redacted 2025 legal memos.

Out of scope much? It might be technically in scope, but I mean, geez. The office charged with defending the state and litigation apparently doesn't have a single internal memo about whether the mass deletion of these records was a problem in 2020.

There wasn't one email from one person to another person behind, just do that. What happened with WaTech with all the team's data? Really?

[Rose (SAO)] (23:39 - 23:42)

That's a request for information and you don't have to answer those questions.

[Nixon] (23:42 - 25:34)

Sorry, Al, I keep forgetting. And on to the governor's office request for this material. I had to file a lawsuit against the governor for their spectacular failure on my request with them regarding this matter.

The GOV's office closed my request and certified that they found zero responsive records. Zero. The office of the governor is saying that there were no discussions at the governor's office to and or from the governor's office about this issue.

And while that alone might not have made me pull the trigger on filing a legal action against them, because I guess it's possible that nobody told them anything. They don't know anything. That's why they didn't talk about it.

That's why there's no communications. It seems highly unlikely, right? But I have now recovered records from another agency that proves the governor's office own public records officer and deputy counsel at the time were copying on emails directly discussing this deletion event.

If the public records officer can't locate her own emails in a matter involving public accountability, you know, that's not a clerical problem. That's a structural problem. People entrusted to guard the public's right to know shouldn't be surprised by their own inbox.

They really shouldn't. We will update you as this legal action proceeds. I believe there are probably more records on this.

The governor's office has but is not turning over. It's strange credulity to think that such a massive loss of data would not have moved up to the A.G. and governor's level and not discussed internally by either of those offices if it was moved up.

[Rose (SAO)] (25:34 - 25:38)

And I don't know how could you not even realize that?

[Nixon] (25:38 - 26:29)

We'll keep an eye on this going forward. And yes, here we finally come to it.

I finally filed a separate lawsuit this week against WaTech over an incredibly important request to me.

Request number 24-530. This is the request for the dog meetings, the eDiscovery Accelerator users group meetings. I wanted the recordings of those meetings, meeting notes and the chats from those meetings, right?

I've discussed this request with you on recent episodes. I told you that there are probably updates coming on it. This is that update.

This request is already quite legendary on the show as it has delivered so many of the amazing and brutally absurd soundbites where state officials discussed how they were avoiding disclosure. Am I right, Al?

[Rose (SAO)] (26:29 - 26:36)

You guys don't get this, I don't think. And I don't think you take it seriously. And I don't know if you hear the fear in people's voices here.

[Nixon] (26:36 - 27:05)

I know, I know. I just like to poke at you a bit. Here's the problem with the request to Watak.

I still don't have the live chat records from those meetings. I know those chats contain valuable real-time discussions about the retention issues and more. Watak has closed this request three times now, claiming they have produced all the live chats, but their final closing letter was the most problematic communication yet.

They assert they produced nine recordings without chats.

[Nixon]  (27:06 - 27:18)

And here is an AI-generated reading of a key part of the communication where WaTech says they

[AI VO]

determined that it is reasonable to assume that the transcript function for these meeting recordings was not enabled at the time the recording was activated.

[Nixon] (27:18 - 29:23)

Wait a minute. The transcript function being disabled does not mean the live meeting chat doesn't exist. Transcripts and chats are not the same thing when it comes to this live meeting software.

Anyone who has worked with online meeting software is probably where you can capture a transcription of the audio or even the video. You can get a transcription of that, of the words spoken. And you can also export the actual chat log.

Those are different things. There are two different separate data streams in Microsoft Teams. Watak is trying to close the request by offering a bogus technical explanation that doesn't make any sense.

Furthermore, they have suggested that the chat content I am looking for is visible on the rest of the videos themselves. Right? So I should just be able to power up the videos and transcribe it myself, I guess.

The problem is that that assertion is patently and provably false. After I received their closing letter last week, I went back through each video they had sent me and the chats that they claim are there on the screen are not there. I think there's like two of the 22 videos that I have where I think there's a flash of these.

They might last for a minute. And I'm not even sure if they're chats from those live meetings, those live meeting chats. And again, if the chats were there when I first asked for the request, you got all the meetings and the chats are there, why not just export them and send them as standalone files as one is able to do within Teams?

Where are the chats? This less than stellar closure to my request puts WaTech in a very actionable position. I gave them two clear chances to cure this lack of production, and they failed both times.

I'm not giving them a third. So the lawsuit is filed. I'm looking forward to obtaining discovery of WaTech's underlining materials and yes, deposing the appropriate staff members over this matter.

WaTech, I will see you in court on the next episode of the Public Records Officer podcast.

[AI VO] (29:24 - 29:42)

There have been many misappropriations of records by leadership and interference with public records requests that are putting our agency at risk with proof. These people delete records and withhold them specifically for public records requests. And by me saying something to them, they have disciplined me and given me expectations that are outrageous and do not align with the statute.

[Nixon] (29:43 - 30:43)

That was an AI generated reading of a portion of an email written in late summer 2024, describing a dire situation a record staffer was facing while trying to handle the public records work of their agency. We recently received an anonymous and highly disturbing tip at our contact email address, contact at thepublicrecordsofficer.com. I am purposely withholding the name of the agency for now, as we look for additional information into the matter.

This wasn't just some standard policy complaint. This was a plea for help sent directly to the attorney general's office. We reached out to this agency directly for comment on this astonishing allegation of leadership deleting and withholding records.

They chose not to respond to our inquiry. But this is just the beginning of our dive into what happened here, the risks involved and the implications for every public records officer trying to do their job across Washington state. That story and more on the next episode of the Public Records Officer Podcast.

[AI VO] (30:44 - 32:25)

That's it for this episode of the Public Records Officer Podcast. A quick note before you go. Some of the voices you heard on the show weren't from real people.