Ep. 2 The Obstruction Playbook

Ep 2 The Obstruction Playbook

[Nixon] (0:08 - 1:52)

Breaking news, Stateline, Olympia, Washington. Just when you thought legislative privilege was the biggest transparency dodge in town, the House of Representatives has decided to add a fresh layer of obfuscation. Starting July 30th, every email a legislator throws into their outlet-deleted-items folder will be permanently deleted after 30 days. Automatically. No second thoughts. No retention.

No record. Just disappeared. Now, they have done this in the past, but there's something very different this time around. 

You might want to sit down for this one. Legislators and their staff are being told that any email that doesn't involve a bill they personally sponsored is fair game for deletion. That's right.

If they get an email from a lobbyist about a budget maneuver, outta here! A constituent pleading for help on an urgent policy issue? Poof! 

Donors weighing in on tax legislation? Bye-bye! According to an internal memo obtained by the Public Records Officer podcast, the guidance explicitly categorizes most policy-related emails as transitory, unless the legislator was the prime sponsor.

That's not just legally shaky. That's like rewriting the definition of a public record on a sticky note and then eating it. The Public Records Officer podcast has spoken with a source inside the LEG who spoke on condition of anonymity.

They said this policy will make it impossible to trust legislative public record searches going forward, and honestly, they are right. If lawmakers are allowed to delete anything that doesn't have their name on the bill, the public loses the trail. No record, no accountability, no trust. 

So, if legislative privilege already felt like a hall pass for secrecy, this is like rolling the shredder into the staff lounge. Welcome to the era of selective memory as public policy. 

The breaking news team here at the Public Records Officer podcast will bring you more on this as details become available.

And now, back to your regularly scheduled programming. [AI VO] (2:02 - 2:32)

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] (2:37 - 2:47)

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] (2:55 - 3:57)

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

In episode one, we told you how we learned the state of Washington was destroying around 50 million Teams chats, er, public records, every week. Shauna Sowersby's tweet landed pretty hard. The bureaucratic panic began to set in. 

And then the bureaucracy took the gloves off a little bit, right? Instead of fixing the problem, some agencies went on the offensive, employing tactics of stonewalling and even alleged document destruction. But to truly understand why they fought so hard, we need to talk about the core of the problem.

A fundamental misunderstanding, or perhaps a deliberate misinterpretation of what a public record actually is. Here's a clip I played in episode one of Al Rose from the August 29th, 2023 DAUG meeting, where he discusses what a public record is. 

[Al Rose (SAO)] (3:57 - 5:00)

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

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 DAN. 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] (5:00 - 5:53)

Mr. Rose is, of course, correct. Any record an agency employee creates during the discharge of their duties is by definition a public record. The retention schedule dictates how long that record is to be retained, not the location of the record.

The location of a record does not play any role in deciding when a record can or cannot be destroyed. I'm going to say it again. The location of a record does not play any role in deciding when a record can or cannot be destroyed. 

You'll note the use of the word transitory. You probably won't be surprised to know that word and its multiple applications and apparent definitions is at the center of our problem here. In the December 5, 2023 DAUG meeting, WaTech and Records and Information Government staffers discussed competing narratives on the issue. 

[WARIM Forum member] (5:53 - 6:23)

It's hard to, you know, the more chances you have to communicate with someone else via different forms of chat, the greater that comes up against, you know, the idea that, well, you should only use it in a certain way. So that's a lot of what Office 365 offers are rich channels for communications and you want people to discipline themselves, not to use those rich channels, which are there primarily to facilitate communication. That's a bit of a dilemma for human beings, I think.

[WARIM Forum member] (6:24 - 6:41)

Yeah, it's also great to me because I can walk down to your desk, Harold, and have a conversation with you and that's not a record because I didn't write it down. I can call you on the phone and that's a conversation and that's not a record because it wasn't recorded. So it's all very interesting to me. 

[WARIM Forum member] (6:41 - 7:34)

I just had that conversation today with coworkers explaining that part of the blur is because I'm trying to explain to people that just because you've had a face-to-face conversation with a person that is not recorded doesn't mean it's, that doesn't mean the content is transitory. So now if you have that same conversation in chat, it's documented and I think there's a blur where people are thinking, hey, I can stand and talk about it and it's not a record, so why is it a record in chat? So I can see that we're sliding into a, since we chat at home in our personal space, how's it different? 

And that line, what I see is that that line needs more training, not less, because it is too easy for them to step from one space to the other and not realize, no, now you're making a record and that record has content.

[Nixon] (7:34 - 10:26)

Agencies began treating anything sent in a Teams chat window as what they call transitory by default. As if the format alone rendered the contents meaningless? Is it the content and function of the message, the legal trigger under the Public Records Act that dictates a record's retention period, had somehow become suddenly irrelevant because it was typed in a chat box instead of sent in an email? 

The absurdity of not seeing this argument for what it is, a deliberate narrowing of the public record, should alarm anyone who cares about democratic accountability.

And so they built a compliance regime around a fiction that if a record is fragile enough, if it disappears fast enough, it's as though it never really existed. This is not how democracies can be allowed to run, and I'd bet the farm this isn't what the people thought they voted for with an overwhelming majority when they voted the PRA into existence.

You know, quick aside, I'm not at all kidding. That very fiction, the one where disappearing fast enough makes something not real, isn't just some bad policy the AG was in on, although he was totally in on the bad policy too. We'll get to that. I got a little breaking news there. 

That very fiction is a core pillar of the state's legal defense against my request for the court to order an injunction just to halt the auto-deletions. In court, the Attorney General's Office has effectively argued that because these records were auto-deleted before anyone asked for them, no harm was done. 

No record, no foul. The state contends that no liability attaches to records deleted prior to a formal request, even if their own policy caused a premature destruction. This is the bureaucratic equivalent of saying if we burn the evidence fast enough, the crime never happened. 

Under this logic, the more aggressively the state destroys its own records, the more legally insulated it becomes. They built a system where public records vanish on a timer and then had the gall to tell the courts that no one has standing to challenge it unless they can prove what was destroyed. I mean, that's some kind of anti-democratic circular reasoning I can't get my head around. 

For the AG to argue from such a truly cynical position as this is as sad as it is disturbing. 

OK, sorry, I got a little off track. We were discussing what a public record is and what transitory means. 

You see, for years, state officials and their tech teams have tried to argue that Microsoft Teams chats, those quick and formal digital conversations, were just transitory, ephemeral, thoughts whispered on the wind, too fleeting to be a public record. My attorney, Joan Mell, sees it quite differently. 

[Mell] (10:30 - 11:29)

To me, pretty much everything's got retention value. This concept of transitory, to me, the word transitory in the context of the work that I do is a fiction and it equates to disappearing ink. I mean, it equates to I'm not going to tell you and I don't have to tell you.

It's just become an easy way for agencies to say get rid of content because we don't want to have to produce it. Transitory conceptually is, one, it's not in the PRA, so there's no word transitory in the Public Records Act. There's no definition for transitory in statute.

There's no policy statement by initiative by the people or by the legislature to say don't keep transitory content. 

[Nixon] (11:30 - 11:37)

The law itself, the very Public Records Act we're fighting to uphold, is crystal clear. The Washington State Archivist has been saying it for years. 

[WA State Archives YouTube Video] (11:37 - 11:56)

The good news, and there is good news, is that retention schedules and the foundational responsibilities of records management haven't changed. Whether a piece of paper or PDF, retention is not determined by the format of a record but by its function or content. 

[Nixon] (11:56 - 12:26)

Function or content. Not whether it's on Teams, right? Again, location does not dictate retention. 

But try telling that to agency staff right now. They've been conditioned, in a sense, to think that this is okay. Here's a DOC staffer making clear the amount of confusion that still surrounded this policy from the December 5, 2023 DAUG meeting, nearly two and a half years into implementation, and this is what record staffers are telling Watek and each other? 

[Department of Corrections Staffer] (12:26 - 12:40)

Who decided to say that Teams chats was transitory in the first place? Because that's just like us saying that email was transitory, and we know for a fact that staff either are not getting training on that or don't even know what the word transitory even means. 

[Nixon] (12:41 - 13:18)

Emails between DFW and myself prove this is how the agencies were selling this idea. DFW labeled the entirety of what was on their Teams chats as transitory. Therefore, from their perspective, it could just be destroyed. 

My request could just be denied. The problem is, a lot of retainable work was being done on that channel. Another problem is whether or not those agencies stopped searching those chats after they went to this audit and delete policy.

Why search a platform where only transitory communications belong, right? Right?!? This is completely incongruent with what you just heard the archivist say in that clip I played you. 

Let's hear it one more time.

[WA State Archives YouTube Video] (13:18 - 13:37)

The good news, and there is good news, is that retention schedules and the foundational responsibilities of records management haven't changed. Whether a piece of paper or PDF, retention is not determined by the format of a record, but by its function or content. 

[Mell] (13:38 - 14:02)

And that's where the big oh no is, where government workers understand that this platform just disappears and they believe that that's fine. So they don't think anything of the fact that they're working outside the purview of the public. 

Nixon] (14:03 - 14:03)

And why do they think that? Because, as Aaron Cuoio, a WaTech Enterprise Compliance Administrator, bluntly put it… 

[Cuoio (WaTech)] (14:04 - 14:55)

I'll point this out because Microsoft's kind of their intention of the product was serious retention, serious content that requires retention happens in these more public team spaces. And

one-to-one chats or people in a quick little meeting, those are supposed to be transitory and have a shorter retention. I'm not saying that's the way we should do things.

I'm just saying that could be a strategy through policy or whatever. You're just saying, hey, if you're going to do business, please do it over here in a team. The rest of that stuff should just be transitory.

But as we all know, users don't obey the law.

[Nixon] (14:56 - 15:59)

Users don't obey the law. And when you look at the raw data, the sheer volume of these

transitory conversations, you start to understand the scale of the problem they were trying to sweep under the rug. I mean, consider this, the Department of Corrections, a law enforcement agency, mind you, where every single record is critical for accountability due process, they were generating almost a million teams chats a week, 900,000.

Think about that. That's 900,000 chances for crucial conversations, policy decisions, even details about inmate safety or medical condition to simply vanish.

Do avail yourself of our website, thepublicrecordsofficer.com, where we will have a PDF transcript of this episode complete with hyperlinks that will take you to the very documents we use to prove our claims. Go to the website and you will see the email where DOC makes clear they were at 900,000 records in a week. And to be fair, it wasn't just DOC. Across the entire state system, even with a seven-day auto deletion policy wiping slates clean, WaTech saw an unbelievable volume of data. 

[Cuoio (WaTech)] (15:59 - 18:14)

Picked up a search this morning to see how many chats we had still running. We're approaching the hundred 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. 

Here's the advice that I just gave at Gov's office during lunch hour, which is you need to balance records retention with end user usability and the number of records you're going to collect.

Teams chats is off the chart a lot of data. And I think, and I think this bears out in truth, is that more and more people will be abandoning email and switching to chats. 

That's just the way the younger generation works. And that will be the number one communication tool if it isn't already for a lot of people. So you need to balance that. 

You need to balance how much, let's say you keep it for seven days. I think a good thing to do is do a e-discovery and say how much chats are regenerating as an agency in seven days and maybe grab some samplings for a month. And then from there, think about how long you want to keep your chats beyond that and how many records you'll have around at any one time and then balance that with the savviness of your end users.

I've had numerous conversations with customers that are saying, and I've seen this too, the amount of inappropriate conversations that happen in chats is unbelievable. So people are treating it like it's their own personal Facebook. And so I'd be very careful. 

If you extend the date range on this to make it easier for end users to work, be careful with the risk because people are not maybe adhering to policy. So I would have a strong policy to back up usage. I'd have maybe some strict guidelines, disciplinary, whatever you want to do.

However, but just let people know everything you're saying in here is whatever. Being watched, disclosable, et cetera.

[Nixon] (18:14 - 19:25)

I can confirm what Cuoio is saying here about the inappropriate conversations thing from my own digging. I've seen it all in these chat logs. Everything from the mundane debates over the best Star Wars series to the deeply personal like marriage is falling apart. And yes, even a staffer for reasons only known to the universe, used his government email to sign up for a lingerie outlet listserv. You seriously can't make this stuff up. 

I'm not going to show you any of these documents. So while I do have them, if I shared those, this story would easily become about that stupid salacious garbage. And this story, this story… is not about that.

I can absolutely allow for the fact that many state workers are having conversations that they'd otherwise have at the water cooler because now so many work remotely. These software systems that allow staff to work at a distance are truly terrific and help many people perform

important work for the public more efficiently than if they didn't use it. However, this truth cannot be the reason to delete 50 million records every week.

It can't work like that. The potential for abuse here is so obvious. [Cuoio (WaTech)] (19:25 - 19:32)

You need to balance records retention with end user usability and the number of records you're going to collect. 

[Nixon] (19:33 - 20:00)

Not balance of the law or public access or even basic constitutional rights. No, balance it with how much data we might have to look at and whether people are using naughty language in their chats. 

Here's the thing, Aaron. 

Retention isn't a vibe. It's a legal obligation. Of course, Cuoio is the guy who, after noting the massive amount of Teams chats being generated by the agency's WaTech services, said he can understand why some agencies wanted a one-day policy.

[Cuoio (WaTech)] (20:00 - 20:17)

That's a lot of data and we're caught between wanting to do the right thing and wanting to get rid of data so that our jobs aren't taking, like Cynthia said, two years to respond. You can see why agencies want a one-day. Get it gone. 

[Nixon] (20:17 - 20:25)

The Public Records Act doesn't say retain unless it's inconvenient or retain unless your users can't behave like professionals on a government platform. 

[Cuoio (WaTech)] (20:25 - 20:26)

Get it gone. 

[Speaker 1] (20:27 - 20:49)

The fact that employees are typing inappropriate stuff into government systems is not a reason to delete faster. It's a reason to retrain, to discipline, and to disclose more. What Aaron is suggesting is that we decide how long to retain records based not on legal mandates, but based on whether the records are embarrassing, voluminous, or otherwise hard to manage. 

[Cuoio (WaTech)] (20:49 - 20:50)

Get it gone. 

[Speaker 1] (20:50 - 21:15)

If WaTech is uncomfortable with their obligations under the PRA, they are more than welcome to take it up with the legislature. Draft a bill, make your case in a hearing, but don't pretend the law is optional just because the chat logs are long and messy.

When the tech team starts moonlighting as a policy shop, especially one that frames retention as a threat instead of a safeguard and no one does anything about it, you end up with the people's history being erased.

[Cuoio (WaTech)] (21:15 - 21:16)

Get it gone. 

[Speaker 1] (21:24 - 22:08)

So you'd think that a policy that lets millions of public records vanish every week would be, well, you know, carefully considered, thoroughly vetted, and debated in a public forum. Turns out this policy wasn't considered in public at all. This policy, the one that's still causing headaches and lawsuits, was born out of a crisis, pushed through in a hurry, and according to the very people who had to live with it, was flawed from day one. 

Before the summer of 2021, agencies at least had control over the retention of their chats at the agency level. And yes, some took advantage of that by having a one-day policy. Looking at you, Department of Licensing.

[Cuoio (WaTech)] (22:08 - 22:09)

Get it gone. 

[Speaker 1] (22:09 - 22:35)

But others were at 30 days, and one, I think, was at three years. I believe that was DFW. Anyway, in June of 2021, a few months before the tenant-wide seven-day audit deletion went live, Watec, the state's IT agency, held a town hall meeting with the Washington State Records and Information Managers Forum, or WARIM. 

What they heard from WaTech must have been difficult for them to process, given the nature of their responsibilities under the Public Records Act.

[Carissa Bourdin (DFW)] (22:35 - 23:11)

Okay, and so the last piece of information that we are pushing out for debate, discussion, dissolution, is the team's chat retention. So again, this is another piece of the puzzle that is related, but not exactly the same. We are at a place now, because the retention is breaking and not working, that tenant-wide, we will need to come to one number for all of us, which means that for everyone in the shared tenant, we will need to have one retention period for our team's chat. 

[Nixon] (23:11 - 23:35)

Imagine being told the foundation of your house is crumbling, and the solution is to paint the walls a nice new color. I mean, the situation was so dire, they were essentially told, pick your poison. WaTech offered two options for retention, and the preference, the one that ended up being chosen, was one that was easiest to back out of.

Not the most compliant, not the most transparent, just the most reversible. [Cuoio (WaTech)] (23:36 - 23:36)

Get it gone.

[Nixon] (23:37 - 23:48)

And the records managers knew this was a ticking time bomb. As you will hear Carissa Bourdain, the then-chair of the Wah Rim Forum, speak to in this clip from that June 4, 2021 meeting. 

[Carissa Bourdin (DFW)] (23:48 - 24:27)

I wanted to call out a comment in chat I really appreciate from Jasmine. Just again, if folks aren't watching chat, whether the vote is for one day or one year, please, everyone needs to be sure to discuss this with their legal, as it may be a giant risk to your agency. Retention is based on the content and function, not the type of record. 

If chat is used to create records of an archival retention, your agency will not be in compliance. Best to have a policy in place for agencies to not use chat beyond transitory until proper retention can be applied. So thank you for that. 

I 100% agree. 

[Nixon] (24:27 - 24:38)

Because what was being implemented, what was being voted on, was described in other terms as a giant risk to your agency. A giant risk. And yet, the policy went live. 

[Cuoio (WaTech)] (24:38 - 24:39)

Get it gone. 

[Nixon] (24:39 - 25:22)

And it went live, despite the state's own legal counsel explicitly warning them about these exact deficiencies before the policy was fully implemented. The Public Records Officer podcast just recently obtained an unredacted legal advice memorandum from the Attorney General's office to the Department of Ecology dated June of 2021. I had received a few copies of this memo already in past requests, but for some reason, the good records handling people at Ecology decided to send me an unredacted copy of it in a recent request and I am very grateful to them for that.

Thank you. The AG's advice memo paints a pretty damning picture. What you're about to hear is an AI generated reading of some of the most important aspects of this advice. 

[AI VO] (25:22 - 25:40)

The AG memo states directly, Microsoft 365, particularly Teams and Outlook Exchange, does not come out of the box with sufficient records management capabilities to comply with Washington State public records laws. Agencies need to implement additional functionality and policies to meet their obligations. 

[Nixon] (25:40 - 26:01)

Now let that sink in for a second. The state's top legal office tells the agencies in writing that the very platform they were rolling out was not compliant with state public records laws by default. This wasn't a discovery years later.

It was a known and understood vulnerability when the decision was made.

[AI VO] (26:01 - 26:48)

Teams chats, both one-to-one and group chats, are particularly problematic. Staff frequently use

them for substantive discussions that constitute public records. The default seven-day auto-deletion policy for many chat types is insufficient for records with longer retention schedules. 

And for meeting recordings? They capture substantive discussions and decisions but are often difficult to index, search, and retain systematically. Default deletion periods are likely inadequate for meetings that constitute formal agency business. 

[Nixon]

It even flagged e-Discovery tools saying 

[AI VO]

they require significant configuration and ongoing management to ensure comprehensive and legally defensible searches. There is a risk that default search settings may miss relevant records, particularly in complex or federated environments. 

[Nixon] (26:48 - 27:16)

This wasn't just a giant risk as WARIM had flagged. This was explicit legal counsel confirming that the system was inherently deficient for public records. They knew in June 2021, and yet they all proceeded. 

Later, when Shauna Sowersby started asking about how this policy was implemented, she got two wildly different stories. WaTech, through its spokesperson Andrew Garber, painted a picture of collaboration and consensus. 

[Sowersby] (27:16 - 27:25)

I remember reading those and just being really confused. I'm like, why is, you know, this person saying this, this person is saying this? I mean, it was just so incongruent. 

[Nixon] (27:25 - 27:58)

On the one hand Garber said WARIM, quote, unquote, and that various committees with obscure acronyms like CAC and EAD had reviewed and approved it. Very neat. Very tidy.

Very not the full story. Because the other side of that coin, the WARIM records managers themselves tell a different tale. The WARIM people tell a tale of limited choices, forced hands, and being stuck with something they knew wasn't right.

Al Rose mentioned this also in the last episode. [Al Rose (SAO)] (27:58 - 28:12)

Remember when Rose said, I wish we didn't have it at all, but we got told some stuff, 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] (28:13 - 28:23)

Stuck with. Not recommended. Not collaborated. 

They were told they were getting a new toy, but it turned out the toy had a self-destruct button and nobody knew how to turn it off. 

[Cuoio (WaTech)] (28:24 - 28:25)

Get it gone. 

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

Because the system they were migrating to was so complicated, so unwieldy, records officers were, in essence, told to just deal with it. We have mounting evidence that many agencies had decided to not even search the seven days of Teams chats they had available to search.

Because it's all just transitory, right? Right?!? 

[Mell] (28:48 - 29:19)

That's not what the PRA case law has developed to say. I mean, for longer than chat's been around, it's been very clear that a reasonable or an adequate search for public records requires you go look everywhere those records could be, and you can't just as an agency sit there and say for efficiency's sake, I'm a public records officer, I'm just going to do a remote search and that's all I have to do. 

[Nixon] (29:20 - 29:47)

This reminds me of when one of the agencies first told me that they needed to review some of these Teams chats before they sent them to me. I emailed them almost in jest saying, why would you need to review a bunch of transitory messages? It's all transitory, right?

There's nothing in there that's of value or you don't need to worry about any passwords being passed around or any secret information, right? It's all transitory. Just hand it over.

There's no reason to review it, right? Right?!? [Cuoio (WaTech)] (29:49 - 29:50)

Get it gone. 

[Nixon] (29:51 - 31:34)

So they knew the system was fundamentally flawed. They knew it carried giant risks, and yet they proceeded. Questions why? 

Here's the alternative. The truly compliant solution was just too hard. I get it. 

Sometimes you just want to throw your hands up. Except here throwing your hands up means throwing away millions of public records. And this is the kind of stuff that would make a sane person, should make a seasoned public records officer scream. 

But instead of screaming or you know fixing it, the state's approach to these issues from its very watchdogs has been something else entirely. And that, my fellow public records officers, is the topic of our next episode. 

On the next episode of the Public Records Officer Podcast. 

We pulled back the curtain on the state's tactics, the cynical jokes, and the alleged manipulation of the records. It's clear they were fighting tooth and nail to keep the truth from getting out. But the question remains why? 

What was the deeper truth they were trying to bury? And how long had they known that the very system they put in place was fundamentally flawed? A digital black hole for public records. 

Who was on watch? Who should have said something? Who could have spoken up? 

We will dive into Al Rose's sad, apparent ethical failures because one should not hold the positions of vital public trust which Mr. Rose holds. Accuse another state agency and thereby its staff of being purposefully deceitful with the public and refuse his own duty to the positions he holds and the people he serves by remaining silent about his own knowledge of that alleged deceit. 

[AI VO] (31:37 - 33:22)

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.