Ep. 24 Ferguson's Failure

Ep. 24 Ferguson's Failure

[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.

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[AI VO] (0:36 - 0:45)

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] (0:52 - 3:49)

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

Today, we are going to talk about Governor Bob Ferguson and a pattern. A pattern that has followed him from the Attorney General's office to the Governor's office. When Bob Ferguson has been given a clear opportunity to lead on transparency in open government, he has failed.

I know that's a strong statement, so as always, I'm going to show my work. We're going to talk about missing evidence and discovery sanctions during Ferguson's time as Attorney General. We're going to talk about the statewide destruction of Microsoft Teams chats and other disappearing message systems operating inside Ferguson's own office.

We're going to talk about a redistricting commissioner who deleted text from one of the most consequential nights in Washington politics. We're going to talk about a whistleblower who alleged felony destruction of public records in an Attorney General's office that appears to have responded not by investigating or even referring the matter for investigation, but instead immediately begins communicating with the very leadership said whistleblower had just accused of felonies. We're going to talk about the Fish and Wildlife Commission, where an investigation found serious violations and Ferguson's answer was basically, you know, please don't make me tell you again.

And then we're going to talk about the current Governor's office, the press bottleneck, a major decision about public records that Ferguson never announced and the documents his administration may withhold while it continues working behind closed doors for 19 months. Welcome to Ferguson's failure. Let's start with discovery.

For those who don't know, discovery is the process in a lawsuit where each side must identify and produce relevant evidence. Emails, messages, reports, databases, notes, the kind of stuff you need in a case to show what actually happened. It is not optional.

Then came the case involving a developmentally disabled woman who was neglected in an adult family home. In 2023, King County Superior Court Judge Michael Ryan sanctioned the Attorney General's office and the Department of Social and Health Services $200,000. This is an AI reading of a quote from that judge.

[AI VO — Judge Michael Ryan] (3:49 - 3:59)

The discovery violations in this case are egregious, severe, without excuse, and the result of willful disregard of discovery obligations.

[Nixon] (4:00 - 7:30)

The state was in order to pay more than $122,000 in attorney's fees. Court records and news reports said the Attorney General's office later acknowledged finding approximately 100,000 additional pages that had been wrongfully withheld. The underlying case settled for $3.1 million. Now, to his credit, Ferguson publicly said the buck stopped with him. He said discovery sanctions were unacceptable and that he would oversee a review of discovery protocols. That's good.

That's what the head of the Attorney General's office should say under such circumstances. However, leadership is not measured by whether you can deliver the right quote after or during a scandal. Real leadership is measured by what changes after you say it.

Evidence does not become less important when the legal demand comes from a citizen instead of opposing counsel. If an email, a text, Teams chat matters in discovery, it may also matter under the Public Records Act. The systems and the duty to preserve overlap.

The civic principle absolutely overlaps. Government cannot be trusted to wield power and administer justice if it cannot reliably preserve and produce the evidence of its own conduct. These discovery matters were the warning.

Then came Teams. Beginning in 2021, Washington state government Microsoft system was set up by WaTech to automatically delete Teams chats after seven days. Not after someone reviewed each message and applied a lawful retention schedule or after an archivist determined that the contents had no value.

Seven days after the message was sent, the system made it disappear. The policy was content blind, right? So a lunch order and a conversation about a multimillion dollar government contract faced the exact same timer.

And Ferguson's own Attorney General's office understood the danger. A June 2021 AGO legal memo warned about the records, the discovery and the litigation hold risks created by Teams. The Attorney General's office also writes Washington's model rules for public disclosure.

Those rules warn agencies against automatic destruction based only on a record's age because lawful retention depends on content and function. So the state's chief legal office knew the problem. It had explained and published guidance against the problem.

And when the problem landed in court, Ferguson's office defended it vociferously. The state argued that automatic deletion did not itself violate the Public Records Act when messages vanished before a request arrived. Now that may sound like a technical legal distinction.

In practice, it creates a breathtaking loophole. Destroy the records fast enough and there will be nothing left for the public to request and no accountability for the public to rely on. The government's argument was essentially that the Public Records Act governs disclosure after a request while retention law governs what happens before one.

Maybe a court has to accept that division. Executive leaders do not have to.

[Rose (SAO)] (7:30 - 7:34)

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

[Nixon] (7:35 - 11:23)

Those leaders can recognize that a system designed to erase public communications after seven days makes both laws weaker. They can stop defending it. They can order lawful retention.

They can invite the archivist, records professionals, journalists, requesters, open government advocates into the room. Ferguson did none of that while he was Attorney General. The policy just kept running.

Then, in early 2025, the Department of Children, Youth, and Families settled a Public Records Act lawsuit for $225,000 after a week of Teams chats was automatically deleted after the records request had already arrived. And that last fact matters, whatever abstract legal argument the state wanted to make about records disappearing before a request, these records were destroyed after the duty to preserve had been attached. On February 17th, 2025, about a month after becoming governor, Ferguson finally acted.

At first glance, that looked like leadership. There was just one small problem. Ferguson was solving, as governor, a problem his office had defended while he was Attorney General.

He did not all of a sudden discover the seven-day timer in January 2025. His agency had known about the risks since at least 2021. His lawyers had been in court defending the policy.

No, it took a six-figure settlement and a change in Ferguson's job title before the policy suddenly required a thorough evaluation. Still, better late than never, I say. The governor stopped the timer and promised a six-month review.

Six months passed. Then 12. And as of this recording, 19 months have passed since the governor announced this review.

There has been no public report, no public hearing, no stakeholder process, and no announced permanent records management policy. But there has been an important decision. We know that now, not because Ferguson announced it, but because a reporter asked about it.

In July, I reported another part of the story in an op-ed published by the Seattle Times. The statewide Teams system was not the only disappearing message platform used during Bob Ferguson's time as Attorney General. Records I obtained from Ferguson's own Attorney General's office showed that AGO employees were instructed to use Cisco's Jabber, an internal messaging platform where communications could disappear whenever an employee restarted or shut down a computer.

The AGO's guidance also instructed employees to clean out a local folder called MyJabberFile every week. It said that even records saved in that folder should not be retained for more than 30 days. Let me be clear on this.

I want to make sure you understand this. The AGO trained their staff to delete these messages daily. It's in their training materials.

[Rose (SAO)] (11:23 - 11:27)

Uh, you guys don't get this, I don't think. And I don't think you take it seriously.

[Nixon] (11:27 - 14:06)

And again, now remember who we're talking about. This is not some tiny agency whose records manager had never read the model rules. This was the Attorney General's office.

It's the agency that writes those rules. The AGO's own model rules warn that agencies cannot lawfully decide how to retain a record based only on its format or age. Retention depends on content.

An invitation to lunch may be temporary. A conversation about a legal brief, deadline, litigation, or an agency decision may have to be preserved. And records showed AGO employees using Jabber for exactly those kinds of substantive discussions.

Briefs, pleadings, deadlines, active case matters. So, while Ferguson's lawyers were telling the courts that statewide destruction of Teams chats did not violate the Public Records Act, employees inside Ferguson's own office were conducting public business through another system where messages could disappear when somebody turned off their computer. Ferguson's AGO did not merely defend a disappearing message system used by other agencies.

It operated one of its own. And we know about it because I requested the records and published what they showed in the Seattle Times. Not because Ferguson's office disclosed the practice or identified the risk or volunteered that its internal conduct contradicted its public guidance.

Jesus. This is not about some defective technology policy. This is a philosophy.

It is a governing strategy. Give employees a fast and formal communications channel, treat the messages as temporary, put the burden on each individual employee to recognize when something needs to be preserved. Then you configure the system so the evidence disappears unless somebody takes affirmative action to save it.

Right? I mean, and then when the records are gone, tell the requestor there's nothing to produce. 

[Cuoio (WaTech)]

Get it gone.

And the AGO knew better because the AGO wrote the rule explaining why this was a bad idea. Its model rules warn that indiscriminate automatic destruction of public records can prevent agencies from complying with retention requirements and interfere with Public Records Act searches. Its lawyers warned other agencies about the preservation litigation hold risks by creating electronic chats.

But under Ferguson, and now under Brown, the office did not model its own model rules. It defended one disappearing message system while operating another.

[Rose (SAO)] (14:07 - 14:10)

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

[Nixon] (14:10 - 15:09)

Like I said, this is a governing philosophy. That makes Ferguson's eventual suspension of Teams deletion look even less like the moment he discovered a previously unknown problem. His own agency had been practicing that problem.

So the Office of Financial Management appears to have housed much of this review of the auto-deletion policy that Ferguson ordered in February of 2025. Records show the Office of Financial Management, OFM, WaTech, and the Governor's Office communicating about situation briefs, work session questions, policy options, and materials prepared to brief Ferguson in fall of 2025. Last week, a reporter asked OFM and the Governor's Office for the recommendation and an appendix referenced in those records.

The Governor's Office responded with information the public had never been given.

[AI VO — Brionna Aho] (15:09 - 15:28)

The Governor received a briefing on the recommendations. He is not agreeable to having any kind of auto-delete feature and asked the team to go back and work on a revised proposal to exclude auto-deletion and include a strategy on managing the records generated by Teams chat. The auto-delete function remains suspended as previously announced.

[Nixon] (15:28 - 20:49)

Okay. Ferguson apparently rejected any return to automatic deletion. That's good.

That is one correct decision inside this process. But it is not the final decision he promised the public. Ferguson announced a thorough six-month evaluation.

A completed evaluation should produce a policy for what happens next. Instead, it appears the first recommendations reached him sometime in fall of 2025, already after his six-month deadline, he rejected them and sent the team back to the drawing board. Nearly a year later, the revised policy still does not exist or, at minimum, has not been adopted or disclosed.

OFM's own Legal Affairs Counsel confirmed it, saying, quote, there has not been a final decision, unquote. So what was forced into the light was not the answer. It was confirmation that nearly 19 months later there is still no answer.

And I want to be clear about how the information became public, right? You know, I obtained records revealing that recommendations had been prepared and delivered to Ferguson. I gave those records to the press.

They then asked OFM and the governor's office for the documents and the status of the review. Only after those questions did Ferguson's office disclose that he had rejected the recommendations and ordered the team to develop another proposal. No public update when the original six-month period expired.

No announcement when Ferguson received the recommendations. No explanation when he rejected them. No notice that the team had been sent back to the drawing board to come up with a new proposal.

Just nothing. A member of the public had to use the Public Records Act, identify the documents the government was not discussing, put those documents in front of a reporter and force the governor's office to explain what was going on. OFM's response applied the other half of the picture.

Its Legal Affairs Counsel said the requested recommendation remains part of an ongoing deliberative process. OFM said the records are quote, likely exempt, unquote, under RCW 42.56.280 and that it expects to decide by October 2nd whether to claim the exemption or release the records. Yeah, so let's talk about deliberative process.

And please, I know your eyes are probably glazing over right now. This is actually an interesting exemption that exists within the law and there's good reason for it. Washington's law allows agencies to withhold certain preliminary drafts, notes, recommendations and internal memoranda when the disclosure might harm an ongoing policymaking process.

I don't know what harm would come to this process, but this is where it appears OFM is going with their decision whether or not to release these records. The exemption protects the give and take before a final decision. But let's look at the perverse result in this particular situation.

Ferguson promised a six month evaluation. His administration missed that deadline. The first recommendations were developed behind closed doors.

Ferguson rejected them behind closed doors. We are left to assume the team has now spent nearly another year developing a replacement behind closed doors. Now, the fact that the administration still has not finished may help it keep the underlying record secret.

The delay becomes part of the legal justification for the secrecy, right? I mean, perfect. Some of these records may be legally exempt while the administration continues debating the policy.

OFM has not made its final exemption decision. And I'm not telling you that every word of a preliminary draft must be released today. But.

Deliberative process does not explain the governor's silence here. It also is a choice. Agencies can choose to claim the deliberative process exemption.

They do not have to claim it. A transparent governor, a transparent government would not withhold such records. It does not explain why a six month evaluation has lasted nearly 19 months without a public status report.

Or why Ferguson failed to announce that he had rejected the initial recommendations. It doesn't explain why his administration has not produced a replacement policy nearly a year after he sent the team back to the drawing board. And it certainly does not explain why the public has been excluded from a process governing the survival of the public's own records.

The Washington Coalition for Open Government offered its time and expertise in this process. WashCOG represents requesters, journalists, attorneys, and people with practical experience in transparency law. And that offer from WashCOG was completely ignored by the governor.

There has been no stakeholder round table, no draft policy for public comment, no serious effort to ask the people who use these laws what a functional records management system might look like. The same government that automatically destroyed the records is now deciding, by itself and behind closed doors, what system should replace the destruction policy.

[AI VO — PRA] (20:49 - 21:11)

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] (21:12 - 23:04)

To OFM legal counsel, that is RCW 42.56.030. The law says the Public Records Act must be liberally construed and its exemptions narrowly construed, so the public interest will be fully protected. Ferguson may have gotten one part right.

The seven-day destruction machine should not return. But, you know, no auto-delete is not a records management policy. It does not tell agencies how Teams chats will be classified and retained according to their content.

Ferguson has apparently decided what the state will not do. Nearly 19 months later, he still has not decided what the state will do. And we learned just that much only because public records expose the existence of the briefing.

That understanding was given to a reporter, and the reporter forced his office to answer. The policy remains unfinished. The public remains excluded.

The process remains behind closed doors. Teams is not the first time Ferguson had a chance to respond when important public communications vanished. In November 2021, Washington's redistricting commission negotiated the political maps that would shape representation for the next decade.

I know I was there. The commission's final meeting collapsed into confusion. Commissioners approved plans that had not been written down or shown to the public or even publicly discussed before the vote.

The next morning, Democratic appointed commissioner April Sims deleted many of her text messages. According to the commission's executive director, the deletions likely occurred only hours after the vote and before a public records request was filed. Destroy it before they ask for it, right?

[Cuoio (WaTech)] (23:04 - 23:05)

Get it gone.

[Nixon] (23:05 - 35:52)

The missing messages involved the private negotiations behind maps that determine political power in the state of Washington. The attorney general's office later acknowledged in court that Sims had destroyed messages subject to the Public Records Act.

But what did attorney general Bob Ferguson do about the destruction itself? Destruction of a public record is a felony in Washington. He did nothing visible.

There was no announced investigation, no referral for prosecution, no public accounting of whether official records had been unlawfully destroyed. There was no precedent setting insistence that the political power of the person holding the phone does not diminish the public's ownership of the records on it. I mean, Bob Ferguson had an extraordinary opportunity to say in the situation, look, you don't, you do not get to negotiate the next decade of political maps in private, then delete the evidence.

The people of Washington instead got silence. Then there's the story of Julie Bracken. I told you all about this in episode 13 of the show.

Bracken serves as the public records officer at the Office of Minority and Women's Business Enterprises. In 2024, she raised allegations that agency leaders had altered, destroyed, or directed the destruction of public records. She described conduct serious enough that, if proven, could implicate Washington's felony statute on injury to records.

Now, those are allegations. They deserve investigation and not casual acceptance. They also deserve something better than institutional self-protection.

Bracken sought help from the attorney general's office. Again, the AGO did not announce an investigation. It did not announce a referral to an outside investigative authority.

Instead, records show attorney general office personnel communicating with OMWBE leadership. The people, records instead show AGO personnel communicating with OMWBE leadership. The very people Bracken had just accused of possible felonies.

Maybe the attorney general's office will say it was acting as a counsel for the agency. That is precisely the problem. Right?

When the public records officer reports possible felony destruction by agency leadership, the state needs a clear path that separates legal defense of the agency from investigation of the accused. Otherwise, the whistleblower brings an allegation to the state's top lawyers and watches those lawyers go to work with the subjects of the allegation. That is not a process built to inspire truth telling.

It's a process that tells every records officer in Washington, if you report wrongdoing at the top, do not assume the state's legal operation will protect the public interest or you. It may first protect those you have accused of wrongdoing. Don't whistleblow in Washington state.

Ferguson was attorney general when Bracken made these allegations. He had authority, visibility, and platform. He could have called for an independent investigation or created a protocol for public records officers who report suspected destruction by their own chains of command.

He could have made clear that the AGO's advisory relationship would not swallow the state's obligation to confront possible criminal conduct. Yet again, no leadership. As governor, Ferguson got another chance recently with the Washington Fish and Wildlife Commission.

An independent investigation that he called for found that commissioners had flouted transparency requirements, engaged in improper behind the scenes communications, and created serious public records and open meetings problems. This commission exercises public power over wildlife policy, hunting, fishing, conservation, and people's livelihoods. When the investigation confirmed the wrongdoing, Ferguson declined to remove the two commissioners at the center of the misconduct findings.

His office sent warning letters, you know, do it again, there might be consequences. Both these commissioners' terms expire at the end of the year. So, I mean, the consequences scheduled to outlive their appointments by, what, a few weeks?

This is not accountability. It's just not. A governor does not need to fire everyone who makes a mistake.

That's not what I'm saying. Removal is serious and process matters. Proportionality matters.

But there is a gulf between summary execution and no meaningful consequence at all. Ferguson could have demanded public corrective action, required records training, referred specific legal questions, or explained in detail why the findings did not warrant removal. Instead, the public got wrist slaps for officials who were already halfway out the door.

This weird pattern with Ferguson being secretive and cagey, it extends beyond records retention. In 2026, Axios reported Melissa Santos exposed a Ferguson administration policy requiring most executive agencies to route press releases, interview requests, talking points, and answers to reporter questions through the governor's office for approval. Records showed communications staff describing the process as grueling, painful, and a continual barrier.

Some answers waited days or weeks. A response to a television station reportedly remained in limbo for six weeks. Public health guidance and information about a measles exposure were routed through this approval system.

And agency staff were instructed not to tell reporters that the governor's office was causing the delay. Huh. Jesus, that's just cowardly leadership.

Ferguson personally reviewed and edited some agency communications. His communications director defended the policy as collaboration. You know, collaboration is when people work together to improve something.

A bottleneck is when everything has to fit through Bob. Three former governor's staffers told Axios that their administration did not require this kind of advanced approval. You know, I worked at DOH during COVID.

We didn't have to run everything through Governor Inslee. Ferguson has also abandoned the regular open-ended press conferences that gave reporters a chance to talk about matters outside the governor's chosen subject for the day. This is information control as a management philosophy.

The Teams review happens behind closed doors. The documents explaining it may be withheld. Agency answers to reporters must be approved by the governor's office.

Reporters are told not to disclose that approval process. The governor avoids the unscripted press settings where the public might get direct answers. Then, when records requesters try to reconstruct what happened, the government complains that transparency is burdensome.

These requesters are just burying us. Of course it's burdensome. You built a system where basic facts have to be excavated.

I want to be precise. I want to be clear about what it is I'm accusing Bob Ferguson of. I am not saying he personally deleted April's text messages.

I'm not saying he personally hid 100,000 pages in Discovery. And I'm not saying Julie Bracken's allegations have been proven in court. I'm not saying every record connected to the Teams review is legally disclosable today.

I am saying leadership is what happens after the warning. Ferguson has received warning after warning and had opportunity after opportunity. Judges sanctioned the state over missing evidence.

His own lawyers warned that Teams created retention and legal risks. His office wrote model rules cautioning against automatic content-blind deletion and then used Jabber for substantive legal work even though its own guidance said those messages could disappear when a computer shut down. Lawsuits challenged the seven-day destruction policy.

He defended them. DCYF paid $225,000 after requested chats were destroyed after a request came in for those chats. A redistricting commissioner deleted text tied to negotiations over the state's political maps.

A public records officer alleged felony destruction by agency leadership. An investigation finds misconduct by Fish and Wildlife Commissioners. State communications professionals warned that the governor's press approval system was obstructing the flow of public information.

Each event gave Ferguson a chance to establish a clear principle. The state of Washington preserves the evidence of public business. It will investigate credible destruction allegations.

It protects records professionals who raise concerns. And it will discipline officials who violate transparency laws. Further, it invites public into decisions about public records and doesn't do it behind closed doors.

He did not establish that principle in any way. He defends, he delays, he penalizes, warns, reviewed, and keeps the doors closed. Look, Bob Ferguson is a smart lawyer and an extraordinarily disciplined politician.

This guy's a chess player and a very good one, as I understand. He understands institutions. He understands leverage.

He also understands that the person who controls the process often controls the outcome. And that's what makes this so disappointing. The problem is not that he lacks a lack of will to lead here.

The problem is that transparency repeatedly loses with Bob Ferguson when it competes with institutional protection and message control. And now we arrive at the latest test, right? Finish the Teams review and release the policy.

Release the recommendation Ferguson rejected. The factual appendices, the work session materials, and the records of his decision. Ferguson's admin does not have to claim a process exemption.

It can waive it in the interest of transparency. My God, do it once. Explain why a six-month review has taken over 19 months.

Explain why your decision against auto delete was never announced. Explain why outside transparency experts were ignored. Then show us the permanent policy and how it will preserve records according to content rather than a blind timer.

Then hold an actual press conference and answer questions about all of this. Without some subject matter fence around the questions and answer questions about this entire fiasco. Be a leader.

Lead your people. Explain to them why. Why are you like this?

Why are you so reflexively secretive? Why are you hiding the details of your governance from the people whose democracy you claim to serve and protect? This should not be hard for a governor who means what he says about transparency.

The people do not yield their sovereignty to the agencies that serve them. That sentence, it is not decorative language for some training manual. It should be as a warning to every official who begins to confuse public power with personal ownership.

Those records and this government are ours. And the decision about what survives cannot belong exclusively to the people whose conduct those records may someday expose. Governor Bob Ferguson has had years to lead on this issue and he has failed.

The review he promised is now his latest chance to prove that failure is not the permanent policy. Release it.

[AI VO] (35:55 - 37:37)

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 the rights of all Americans.

And 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 listen to you. You're not paranoid.

They really did delete it.