Ep. 14 Get It Gone 2: The Bureaucracy Strikes Back

Ep. 14 Get It Gone 2: The Bureaucracy Strikes Back

[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 thepublicrecordsofficer.com.

[AI VO] (0:33 - 0:44)

The Attorney General's Office is committed to helping its client agencies uphold and comply with the Public Records Act. Our attorneys work closely with clients to ensure that all laws are being followed.

[Nixon] (0:45 - 1:09)

That was an AI generated reading of the super problematic statement the Attorney General's Office gave to the Center Square reporter, Carleen Johnson, late last week about the issues raised in our last episode. And the fact that this is their public position is a stunning example of how the AGO's glaring conflicts of interest may assist in burying possible felonies.

[AI VO] (1:12 - 1:22)

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] (1:29 - 4:04)

Hello and welcome. This is the Public Records Officer podcast. I am your host, Jamie Nixon.

Before we dive in, thank you to all who listened to our last episode, Episode 13. In just the first 48 hours that episode was live, it became our most downloaded episode thus far, by far. This honestly must mean either transparency is trending, which feels kind of unlikely, or the algorithm finally took pity on a Gen X dad podcast about public records.

Either way, I'll take it. We certainly hope you continue to find the show informative and entertaining enough to make civic nerd transparency content something you actually want to listen to on the regular. 

Today, we're going to break down why the AG's latest comments are so deeply problematic and why they expose gaping holes in Washington's accountability system that require immediate corrective action.

If you heard our last episode, you learned the shocking story of Julie Bracken, the Public Records Officer at the Office of Minority and Women's Business Enterprises, or OMWBE. If you didn't, here's the 60-second Cliffs Notes version of what occurred there. 

Ms. Bracken blew the whistle on an alleged intentional records destruction scheme. It began after a December 2022 PRA request. Bracken received a chilling message at one point from a colleague, Timolin Abrom, that said, quote, what happens if someone is asked to delete some teen's posts and was told it was because of a records request, unquote. The manager who allegedly gave that order was Director of Workforce Development, Ashley Olson.

Abrom suggested they complied due to feeling intimidated. Bracken reported the alleged felony internally, then to the Attorney General. Instead of being supported, Bracken was isolated, pressured, and ultimately disciplined.

This was not a case of human error, but of alleged criminal intent. For us here, Bracken is a true public servant who documented the misconduct while her leadership behaved like accountability was optional. 

After our episode dropped, Carleen Johnson, the state government reporter for the Center Square, asked the Attorney General for comment for her story about the matter she published early last week.

Here is an AI-generated reading of the initial statement given to the Center Square by the AG.

[AI VO] (4:04 - 4:24)

I can confirm that the Attorney General's office did receive the email from Ms. Bracken. Our PRA Consultation Office, which works with local governments on public records compliance, passed it to our attorneys who work with the OMWBE. Any discussions they had with OMWBE are subject to attorney-client privilege.

[Nixon] (4:25 - 6:33)

This statement leaves out something quite glaring. Did the AG look into the matter at all? Bracken's notes make clear that she did not hear from the after her initial report to them about the records destruction at her agency.

Attorney-client privilege isn't an obstacle here. It's not a real thing here. The AG is not forbidden from telling the public if they investigated or otherwise referred the matter for investigation with a county prosecutor because of attorney-client privilege.

That answer is insulting to the public's intelligence. It seems to me the Attorney General's office wants you to hear those words, you know, like attorney-client privilege, and for you to walk away thinking that's the end of the matter and the public will never get to know if the law was enforced here or not. This answer is a wholesale departure from the kind of transparency regime Attorney General Brown promised the WashCOG faithful at their annual Sunshine Week fundraising event last March.

More on that particular angle later in this episode. But for now, it appears safe to say that Attorney General Brown believes the public has no business. Knowing whether or not their AG is taking felony records destruction seriously.

This kind of opaque approach sends the entirely wrong message to those who may be considering destroying records in the future. Now let's look at the AG's newest public comments because they reveal something far worse. After episode 13 aired, Carlene Johnson sent the Attorney General's office three very straightforward questions.

Did you investigate this alleged felony? What is your procedure when a client agency is accused of a crime? And does your silence send a message that records destruction will not be enforced?

These seem like pretty straightforward questions given the circumstances of where we are at, right? And the AGO's official response after internal review, after comm staff weighs in, was...

[AI VO] (6:33 - 6:44)

The Attorney General's office is committed to helping its client agencies uphold and comply with the Public Records Act. Our attorneys work closely with clients to ensure that all laws are being followed.

[Nixon] (6:45 - 16:35)

Oh, that sounds nice, doesn't it? They're committed to helping. They work closely.

As anyone who's worked in crisis communications knows, and you know, I speak from experience here. I served as a public information officer at the Department of Health during COVID and as the Communications Director at the ill-fated 2021 Redistricting Commission. You don't read a statement just for what it says.

You also need to read it for what it does not say. If the Attorney General had done the right thing, if they had taken a credible accusation of a Class B felony and either investigated it themselves or handed it to another proper authority to do so, their statement would have been simple and it would have had something in there like, we take these allegations seriously and, you know, have referred this matter to the appropriate authorities for investigation.

Something along those lines. That's the type of boilerplate you'd put in, especially given the fact that the circumstances here are basically hinting that the AG may not have done anything, that the AG may have let Ms. Bracken dangling and at the mercy of her leadership after she reported them for possible felony crimes. But they didn't say that at all.

They didn't even say there was or was not an investigation into the matter. By omitting the standard, you know, we enforce the law kind of language, the Attorney General is tacitly admitting that they have chosen to not enforce the law. Instead, they are positioning themselves as partners to the very agency accused of destroying evidence.

They aren't acting as the state's top law enforcement officials. They are acting as the agency's defense team. Even though there's a credible allegation of a felony being committed by the leadership of that agency, they're essentially saying that Julie Bracken made a serious mistake reporting felonies committed within state agencies to the defense lawyer of that state agency.

The only reason you don't include a sentence like we enforce the law, we take credible allegations of felonies seriously is if you know you haven't done so. Not only did you not do so, but you left the public records officer dangling on her own after she courageously reported this criminal behavior. 

What kind of chilling message does that send to every other public records officer in the system?

Don't come here. Don't tell us about your problems. Don't tell us about crimes you see being committed.

And you know, I want to make sure I make clear to you, asking whether the agency initiated or referred a criminal investigation is not a privileged question. It's a matter of public accountability. Invoking attorney-client privilege here is not a legal necessity.

It's just a strategic communication shield. That's all it is. Because admitting that no investigation was done would reveal something far more explosive.

Washington's felony statute against destroying public records has no functioning enforcer, which brings us to the next point. The AGO does, in fact, represent the agencies at the organizational level. Not the employees, not whistleblowers, not public records officers.

The client here in this particular situation is OMWBE, the organization. So in this reality, Ms. Bracken is not the client. When she reported the misconduct, she wasn't viewed through the lens of truth, duty, or lawfulness.

She was viewed through the lens of a risk to the client's well-being. And this is where agencies win and public records officers and the public's accountability lose. Because in the eyes of the attorney general, the public records officer is the threat.

The leadership accused of wrongdoing is the client. And the AGO's loyalty runs only in one direction. This is not theoretical. This is how the structure operates. 

I want to pause here and make sure we're talking directly to the people who really need to understand this most, and that's Washington's public records officers. Public records officers occupy a uniquely precarious professional space, it would appear.

They are trained rigorously on public records act. They know the law. They know that destroying records is a felony.

They also know that when they see wrongdoing, they may be the only person in their agency who understands its seriousness. But here's the solemn truth that they and everyone else must understand. The attorney general is not a confidential reporting channel.

They represent your agency, not you. If you report allegations of wrongdoing involving your leadership, that information is not protected. It can and will almost certainly flow directly to the people you are reporting.

And let's be clear about what that means. If you go to the attorney general thinking you are a confidential whistleblower, and you tell them that your director is destroying records.

[Cuoio (Watech)]

Get it Gone. 

[Nixon]

The AG's ethical obligation is to their client, the director.

The law may effectively be requiring them to turn around and tell that director what you just said. You aren't just shouting into a void. You are handing your testimony directly to the defense counsel of the person you are accusing of a crime.

If you are considering reporting misconduct, you should first seek legal advice from someone who represents you and your interests. If that's your union attorney, private counsel, whatever, you need to understand your rights and risks before you do anything. I mean, this case seems to be making that very clear.

A crucial part of this to understand is that county prosecutors do have independent authority. Under Washington statute to investigate and prosecute records destruction felonies. They are structurally independent of the agency involved, right?

So if you go into Thurston County prosecutor, they are structurally independent from, you know, DOH or DOL, whatever. County prosecutors do not represent your leadership. And they can act without the AGO.

I am unsure if public records officers are trained on this and on these subtle distinctions in the law, but this is true. Let's put it to the public because it affects the public just as much. If public records officers have no safe place to report wrongdoing, the public records have no protector.

And it's starting to look like that's not an accident. This brings us to a pattern of behavior out of the AG's office about this kind of matter. 

In 2022, Washington State redistricting commissioner, April Sims, deleted public records related directly to the final hour negotiations around the political maps.

The state admitted it in court documents. Destroying public records is a felony. And what did Bob Ferguson's attorney general's office do in response to that admission of guilt?

No charges, no referral, no public accounting, no enforcement. Then comes OMWBE, documented allegations, direct evidence described in real time, and what is essentially a whistleblower letter begging for help. The AGO's response under Bob Ferguson, no confirmation of investigation.

There was no explanation of procedure, no commitment to the enforcement of that law. This is not a coincidence. This is a policy outcome of prioritizing agencies as clients.

And the message this sends to state agencies is unmistakable. There is nothing to fear. Destroy a record, destroy many.

Destroy them because of a PRA request and don't sweat it. Nothing's going to happen. Auto delete them, destroy them after that request comes in, feed them to your dog, whatever.

This is not merely a lack of enforcement. This is permission. Think about the perverse incentive this creates for a second.

You're a corrupt official. The attorney general has effectively taught you that destroying records is way safer than releasing them. If you release a damaging record, you get a scandal.

If you destroy the record, the AG gots your back. They will not investigate, they won't prosecute, and they might even alert you if one of your staff tries to blow the whistle on you. They apparently aren't going to level with the public about what happened, so that's not a problem.

By refusing to act, the attorney general isn't just failing to stop the crime. They are actively making records destruction the smartest move for a corrupt official.

[Cuoio (WaTech)] (16:36 - 16:36)

Get it gone.

[Nixon] (16:37 - 23:21)

Another important point to consider here, why is the AG's apparent priority the defense and hiding of felony records destruction as opposed to the upholding of the law itself? I thought that the AG's first client was the people of the state of Washington. I think the attorney general's office needs to reorient its priority to reflect that reality because this current path is totally corrosive to trust in Washington's government and institutions.

I mentioned Nick Brown's Sunshine Week speech in front of WashCOG from March of this year. At that event, Attorney General Nick Brown was the keynote speaker. During that speech, he espoused the virtues of making transparency a high priority in his office.

He directly discussed transparency being foundational and the powerful being held accountable. He talked about secrecy being anti-democratic and journalists needing to hold the powerful to account. All while his office refuses to confirm to the press to Carlene Johnson of the center square, whether they investigated a felony involving public records, the bedrock of transparency.

I would respectfully remind Attorney General Brown that you cannot condemn authoritarian behavior while modeling it. You cannot claim to defend democracy while hiding behind privilege to avoid answering basic questions about whether or not you're enforcing the law. And Jesus, don't go preaching transparency while refusing to say whether you even looked into the matter.

It just makes your whole speech look like it was nothing but political branding in direct conflict with institutional behavior. In the transcript of this episode, you can find links to the speech by Attorney General Nick Brown and to all the other records we discuss on our show. You can find that transcript by visiting our website at thepublicrecordsofficer.com.

There is also a link to the transcript in the show notes. So with this problem looking like there's definitely some systemic triggers for it, and it seems to be kind of set up to work this way a little bit, what can we do? How can we fix this?

There's a couple of things. There's the quicker fixes here, which are legislative fixes. The legislature could act right now, this session, to require mandatory referral of felony allegations.

This would mean that if the AGO feels it doesn't have jurisdiction to a certain area or something like that, they need to refer it to a third party. And if the AG is the defense lawyer of the accused, they definitely need to refer an investigation to a third party. They certainly shouldn't be crushing that within their own agency and making sure it doesn't see the light of day.

That is just dead wrong. The legislature can make clear that the existence of investigations is not privileged. This shouldn't be necessary, but apparently it is.

Whether or not an investigation was undertaken is not a matter of attorney-client privilege. That attorney general serves the people first. Next, the legislature could provide public records officers with protected external reporting channels.

Make clear where they need to go with these things so that they know they will be protected and that their accusations will be taken seriously. The legislature can also require transparency in investigative closure decisions, right? If there's anything about the investigation, I understand that during investigations, we don't give out records and stuff like that.

I'm fine with all those rules. That's not what we're dealing with here. We're dealing with a simple yes or no answer.

And they're trying to act like they can't give that. They can. Now, these would be the quick fixes that immediately address the problems here.

However, we need to consider a constitutional-level reform, I think, to kind of ameliorate a lot of the problems that this show has kind of highlighted. One of the ones I've been jogging around in my head, you know, more of a grand scheme for fixing a lot of the issues, would be something like an independently elected state public records officer, right? A new office that would be a statewide elected office, the office of the public records officer.

That office would employ all the PROs in state bureaucracy. They would no longer be answering to the leadership of the agencies where they deliver services. If those agencies have problems, they will come to the actual elected public records officer.

All the public records officers now answer to that office. This would remove PROs from control by agency leadership, independently investigate records destruction allegations, and refer cases worthy of law enforcement action to an appropriate prosecutor that will perform a dutiful investigation and bring charges where necessary. Because right now, Washington is running a system where the people responsible for investigating agency crimes are also responsible for defending those agencies.

So the AG is acting as a prosecutor and the defense attorney. That can't work. And it can't be allowed to go on.

This is kind of like a pressing now matter, right? 

Real quick, because this kind of came up, I was talking with a friend about this. Well, what about the State Auditor's whistleblower program?

This is tough. I wouldn't currently, if I were you, I'm not gonna say people should or shouldn't, I mean it. 

The state auditor's office is actively lying to people, saying that they have no jurisdiction to look into matters regarding the handling of public records. 

Again, go to the transcript, find links, I will show you emails where they do this, where somebody's requested an audit into an agency regarding public records handling. And the auditor's office is saying they don't have statutory permission to handle those kinds of things.  

But at the same time, there's a 2016 huge report by the auditor's office into the public records handling of many agencies across the state. 

On top of that, the auditor's top legal advisor, Al Rose, in a meeting with record staffers from across the executive branch in September 2023, openly accused WaTech of a cover-up.

[Al Rose (SAO)] (23:21 - 23:29)

I think you guys do this intentionally sometimes, like the cover-up about stuff for over a year, that you knew hadn't been kept.

[Nixon] (23:30 - 23:33)

But he has refused to explain what that cover-up was about.

[Al Rose (SAO)] (23:33 - 23:37)

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

[Nixon] (23:38 - 24:02)

That doesn't scream a believer in transparency to me. If he was a believer in transparency, he would inform the public of what that cover-up was. His silence should give you pause as to whether or not he cares about what you're going through in these regards.

Right? He wasn't looking to make sure WaTech was on the right path. He would have said something to someone.

[Al Rose (SAO)] (24:03 - 24:04)

They want an explanation. You don't have to give them an explanation.

[Nixon] (24:04 - 28:58)

Rose has also misled constituents as to whether or not they can request records anonymously, saying that the revised code of Washington state statutes doesn't allow for it. He is wrong. He is dead wrong.

I don't know if he knows that he's wrong, but for a guy who also sits as the chair of the state records committee, he really ought to know better. Now, while the RCW does not speak to this directly, the case law here is clear that yes, you can submit records requests anonymously. 

The attorney general's ombuds on public records made that clear in an email to a constituent who was told by Rose that anonymous requests weren't allowed.

So you can consider going to the auditor's whistleblower program. It does force them to initiate a very, you know, cursory investigation at the very least. But I would be leery until the auditor's office comes forward with a reasonable explanation for why they are misleading constituents as to their power to perform audits that slash investigations into public records related matters, why their top legal advisor seems apparently committed to hiding a coverup he accused WaTech of and also misleading constituents as to their right to submit anonymous records requests, all while working for an agency whose mission statement on their website literally reads to promote accountability and transparency in government.

I would tread very carefully going to them for help as well. I'm not sure they're going to keep your secret secret. I'm not sure they're going to investigate your accusation.

Their behavior does not match their website's rhetoric. I hope that changes. It should change.

This is untenable, what's going on at the auditor's office. And I will get to this in a future episode. We will detail these things further.

And now let me close with, you know, just a generalized warning about this whole thing. Let me kind of recap it. To Washington's public records officers, you are the backbone of the Public Records Act and transparency in the state.

You're on the front lines of democracy's paper trail, if you will. And you deserve the truth. I don't know what the training is you guys actually get.

I kind of want to sit in on at this point, but it seems very clear now the AGO is not your ally. The Attorney General's office is not here for you when your report implicates your own agency, aka their client. I would highly recommend you seek advice from your own counsel first.

Protect yourself. Like I said, many of you are part of a collective bargaining unit. You pay for the protection that comes with that.

Lean on those resources before you report to anyone. Just get a second take. Even though you know it's wrong, even though you know it deserves to be reported, keep this story in mind.

To the public, if you expect your Attorney General to act as the chief law enforcement officer when the state's officials destroy your public records, understand this. They have repeatedly chosen not to, despite admissions of guilt and credible allegations of such felonies. Not in the Sims case, not in the Bracken case, and not in any publicly known case.

I'm curious how many of these there are. I mean, this is no longer speculation. It is documented practice, and that creates a crisis far bigger than one agency or one allegation.

A felony law unenforced over and over becomes an invitation to commit a felony. An invitation becomes a habit. Habit becomes culture.

If destroying public records carries no consequences, then the only people playing by the rules are the ones with the most to lose. And the ones violating the rules, they've learned it doesn't matter, dude. Just get it gone.

Another message for the public. Contact your state legislative delegation and demand change. Demand enforcement of your transparency laws.

Without forcing the Attorney General to change their priorities, I fear we will continue to get silence while those in power destroy your ability to hold them to account.

[AI VO] (28:59 - 30:41)

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.

Some were totally synthetic, AI generated to read from public records and legal depositions that are, yep, public. You'll also hear real human voices like live audio from state meetings, and the occasional passionate rant from the show's gorgeous host. Every episode has a full transcript at thepublicrecordsofficer.com.

It breaks down which clips came from humans and which came from our robot friends. Think of it like liner notes for digital democracy. You'll also find links to the original documents and recordings we talked about, hosted on Google Drive, free and public.

So, if you want to fact check us, go nuts. That's kind of the point. If this show got you fired up, or even just mildly interested, check out the Washington Coalition for Open Government.

They're a non-profit that fights for transparency and they've got resources if you want to help, or just learn more. And hey, if you work for the state and you've seen one too many messages accidentally disappear, we'd love to hear from you. Confidentially.

Unless you want to be famous. The Public Records Officer podcast is a creation of Nixon and Daughter Productions, powered by good coffee, better whiskey, a microphone, a legal tab, and the apparent misguided belief that government should actually be accountable to people, which is adorable, really. Thanks for listening.

See you next time. And remember, you're not paranoid. They really did delete it.