Ep. 4 Ferguson's Folly

Ep 4 Fergusons Folly

[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 - 2:19)

Hello and welcome. This is the public records officer podcast. The only podcast in the history of history, dedicated to the mundane, confusing, and surprisingly scandalous world of government transparency. 

I am your host, Jamie Nixon. Today, we're doing something a little bit different. At the end of episode three, I told you that we would be bringing you stories of the actual human cost of these sketchy records handling practices I've been discussing with you.

Regrettably, that episode is being put on hold for a few more days, because we are going to discuss an important event that should happen any day now. This one's a little time sensitive, so I wanted to get it out first. We're trying to get ahead of the news cycle here a bit. 

You see, the six-month deadline on Governor Bob Ferguson's suspension of the state's executive agency's auto deletion policy for Microsoft Teams chats is about to expire, and an announcement about whatever is going to happen as a result of this review should be imminent.

So, before the Ferguson PR machine gets to work trying to drive the narrative, we're here to set the record straight on how we got here and what we should expect to get from Ferguson's administration on this matter at some point this week or next, maybe, perhaps.

We started this podcast in episode one by discussing Bob Ferguson's six-month suspension and a review of a little-known records retention auto deletion policy involving Microsoft Teams. 

[AI VO] (2:19 - 2:53)

As a new administration, we are taking a close look at the ways we're serving the people. That includes our use of communications tools. I discussed the use of Teams chats with my cabinet in one of our first meetings. 

I am directing WaTech to suspend Teams' automatic deletion feature for the agencies it supports until my team has completed a thorough six-month evaluation. I am issuing the same direction to the agencies that have their own accounts. We expect this change to be made by the end of the week. 

[Nixon] (2:53 - 3:09)

That suspension was announced on February 17th. Well, wind the clock and wouldn't you know it, August 17th is just days away and that is the six-month deadline. So the time has come for the ever-elusive Governor Bob Ferguson to come forward and tell us what the deal is.

What happens now?

[Rose (SAO)] (3:09 - 3:12)

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

[Nixon] (3:13 - 3:34)

Will the state executive branch go back to destroying tens of millions of public records automatically every week?  

[Cuoio (WaTech)] Get it gone. 

[Nixon]

Or does the governor have a legal solution? 

Will we get an explanation for how and why this happened in the first place and how he's going to ensure the people of Washington that never again will public records be so disregarded by him or the agencies he once represented as AG and now controls as governor?

[Rose (SAO)] (3:34 - 3:36)

If they want an explanation, you don't have to give them an explanation. 

[Nixon] (3:37 - 3:51)

The tea leaves here so far don't bode well. We have no date for an event or even an announcement. Ferguson has been notoriously cagey with his schedule, sometimes only releasing a schedule of events after the events have already taken place. 

There's been some press on this. 

[Cuoio (WaTech)] (3:51 - 3:52) Get it gone. 

[Nixon] (3:52 - 5:10)

It is my growing concern this governor may only put out a statement and not actually stand for questions on this matter. A decision that would unfortunately track with this press phobic governor. But this is one of those situations that demands questions being answered. 

I wish Ferguson had built the kind of trust on this issue that would make this a, you know, send out a statement kind of thing as opposed to what it actually is. Because it really is an I need to stand up there and explain to the people what happened here kind of thing. We thought it'd be smart to put together a list of questions a reporter might consider asking the governor if he does actually do the right thing and hold a press conference on this issue.

You will find a link to that list of questions on the transcript for this episode on our website at thepublicrecordsofficer.com. Go to our site, click on receipts at the top of the homepage and look for the episode for transcript and click away checking our work.

As discussed in a previous episode, this policy was never implemented with public input and now it's being reformed with the exact same amount of public input as its genesis, which is none. 

This review process has been done entirely behind closed doors out of sight of the public. Get it gone. For all his talk of transparency, Governor Ferguson seems to have forgotten some of the clearest and most notable text found in the public records act he has sworn to uphold. 

[AI VO] (5:11 - 5:32)

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] (5:33 - 5:41)

The people in delegating their 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 the people to know. 

[Nixon] (5:43 - 5:48)

So whatcha up to Bob? 

[Rose (SAO)]

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

[Nixon](5:54 - 7:08)

When Governor Ferguson announced his suspension on February 17th of this year, it was a solid piece of political theater. A public announcement like that so early in his first year as governor on a policy few had heard of, after years of defending a policy that destroyed millions of public records, he acted as if he were a white knight riding in to save the day. He could have ended this ridiculousness the day he received a copy of whichever lawsuit on this was first to his desk as AG. 

He could have contacted any of those litigants and said something like, you know what? We've got this wrong. Your client is right. Let's save the taxpayers the time and money of costly litigation, settle this out, and solve the problem.

But as we all know now, that's not at all what happened. We are now in year two of the AG's office, now under Nick Brown, defending a policy in court that Ferguson himself suspended one month into his term, saying that it was one of the first things he and his cabinet discussed.

If this was such a priority to take care of, why are we still in court, governor?

[Rose (SAO)]

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

Ferguson's suspension also does not address the massive cultural failures the public records officer podcast has just barely begun to shine a light on in these first few episodes. I asked my attorney what she thought of this suspension coming from Ferguson. 

[Mell] (7:08 - 8:09)

I think it's classic Bobby Sue. I mean, that man is so self-promotional that I am absolutely sure that he found it to be in his personal best interest to publicly say he's handling the chats issue, knowing full well that his suspension changed nothing with regard to the ability to delete chats and not preserve them. Because while he said the automation is suspended, there was no substance to the fact that, and we have to ensure that these communications are retained, just the opposite. 

I think they ramped up their instructions that people should be deleting them because they're transitory, but they're not transitory. But that's the way they say it is a transitory communication tool, so just get rid of it. And who's there to check it?

There's no policing of it.

[Nixon] (8:09 - 8:26)

While the automatic deletion was paused, his administration never issued a formal rule

or order to stop manual deletions. In fact, they encouraged manual deletions of those messages as there are only to be transitory messages in the team's chat space. Get it gone.

This is inherently confusing guidance. This is from the Washington State Archivist.

[AI VO Archives] (8:27 - 8:45)

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] (8:45 - 9:08)

A team's chat discussing a billion-dollar contract is not transitory. A team's chat discussing the disciplinary path of an employee is not transitory. A team's chat about charging a reporter all up front for records requests and agency hopes won't be collected on isn't transitory. 

Those are public records, and pretending otherwise is an insult to the public.

[Nixon] (9:09 - 9:27)

Remember the Department of Correction staffer in episode two who said, 

[Johnson (DOC)]

Who decided to say that team's chat 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] (9:27 - 9:44)

That recording was from two and a half years into the implementation of the tenant-wide seven-day auto deletion policy. And yet, the staff doesn't get it. They don't understand it.

The training sucks. I mean, let's be fair. Lawyers and judges fight over the definitions of these words. 

[Johnson (DOC)] (9:44 - 9:50)

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

[Nixon] (9:50 - 10:56)

This is terrible guidance that leaves gaping holes for corrupt misuse of manual deletion at the individual staffer level and of auto deletion at the systemic level. Get it gone. But the secrecy doesn't stop there.

This entire six-month review has been conducted in a vault locked away from the public. Public records requests for drafts, policy options, and stakeholder feedback have been met with delays, redactions, and a whole lot of nothing. The Washington Coalition for Open Government, the state's leading open government advocacy group, has reached out to the governor's office to offer input or otherwise assist and be a guide towards a sensible and legally compliant policy. 

And they have been ignored. That's a request for information and you don't have to answer those questions. And to be fair to Governor Ferguson, Governor Inslee, Ferguson's predecessor, could have, should have, done something about this at one point as well.

When given the chance to make this right, he too failed. We have records showing Inslee's team making work-related decisions on the team's chat platform, exactly where the transitory-only guidance told them not to put those communications. 

[Johnson (DOC)](10:56 - 11:01)

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

[Nixon](11:01 - 11:50)

When asked for comment on the problem by Shawna Sowersby for her June 2024 piece at McClatchy on this matter, a spokesperson for Inslee told Sowersby, if an employee acts inappropriately or violates an agency policy, we expect agencies to take appropriate disciplinary action and, of course, employees who violate a law should similarly be held accountable.

I suppose the massive amount of evidence of wrongdoing by Inslee's agencies and his own office simply wasn't enough to cause him to hold anyone to account. Also, that statement doesn't reflect the idea that agencies did anything wrong. 

Did you catch that? Only individual staffers may have. Leadership doesn't want this on the agencies. 

You see, it's not the agency's fault that these systems aren't compliant with Washington public records laws, no. They crafted a seven-day policy so that they could blame individual staffers for any, you know, hiccups. 

[Johnson (DOC)](11:51 - 11:56)

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

[Nixon](11:56 - 12:09)

Said another way, they want to instead hold individual staffers who violate the transitory only policy accountable for leadership's inability to deliver the state workforce the tools that make their work, you know, legally compliant. 

[Cuoio (WaTech)](12:09 - 12:10)

Get it gone. 

[Nixon] (12:17 - 12:22)

You know, this isn't about some wonky bureaucratic process. This is about real people. 

[AI VO] (12:22 - 12:25)

One person's transitory record is another person's exhibit A.

[Nixon] (12:26 - 12:31)

While Ferguson's actions have forced the public into a game of whack-a-mole, real world harm has been documented here. 

[Johnson (DOC)] (12:32 - 12:35)

One person's transitory record is another person's defense in court. 

[Nixon](12:36 - 12:44)

Disability advocates flagged concerns to the Department of Corrections that staffers were using Teams chats to discuss sensitive medical and personnel issues for incarcerated individuals. 

[Johnson (DOC)] (12:45 - 12:50)

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

[Nixon] (12:51 - 12:56)

But because of the auto deletion policy, those records were vanishing, potentially impacting due process and federal investigations. 

[AI VO] (12:57 - 13:00)

One person's transitory record is another person's only chance at the truth. 

[Nixon] (13:01 - 13:18)

This is literally the difference between someone getting out of jail or staying in longer for no reason. We've also seen how the Department of Children, Youth, and Family Services would sit with a $225,000 settlement because records responsive to a request were destroyed after the request was submitted due to the auto deletion policy. 

[Cuoio (WaTech)](13:19 - 13:19)

Get it gone. 

[Nixon] (13:19 - 13:46)

That digital shredder just never stops working. The state's response, Ferguson's response? To defend the agencies in court despite his AG's office direct warnings to those agencies of the legal risks inherent in commencing the policy. 

[AI VO]

One person's transitory record is another person's last shred of evidence.

[Nixon]

And the truly gross cynical part, the Attorney General's office in their defense of these lawsuits has argued that if the records are destroyed before you ask for them, there is nothing the public or the courts can do about it.

[Cuoio (WaTech)](13:46 - 13:47)

Get it gone. 

[Nixon] (13:47 - 13:50)

This is legal gymnastics of the most absurd and anti-democratic degree. 

[AI VO] (13:51 - 13:55)

One person's transitory record is another person's proof of corruption. 

[Nixon] (13:55 - 13:59)

It incentivizes the destruction of records by making it a legal defense. 

[AI VO] (13:59 - 14:03)

One person's transitory record is another person's defense in court. 

[Nixon] (14:03 - 14:58)

Attorney General Brown continues this line of defense to this day. This all leads us back to a fundamental failure of leadership. Governor Ferguson's first act should have been to fix this mess, not review it in secret. 

As Attorney General, he presided over a system that his own assistant attorneys general warned him and the agencies was broken. He defended that broken system in court at taxpayer expense. One person's transitory record is another person's historical marker.

Now, as governor, he has conducted a secret review, a process devoid of public input culminating in an announcement he hopes will bury the story for good. He would have us believe this is proper, okay, ideal even. If he didn't believe these things, he could have invited any number of stakeholders to take part in the process or demand action from the legislature to address the issue.

But no. Secrecy first, secrecy always. Loopholes and evasion.

[AI VO] (14:58 - 15:02)

One person's transitory record is another person's accountability.

[Nixon] (15:02 - 15:38)

The new Attorney General, Nick Brown, seems to be continuing this legacy of secrecy. During his speech at the Washington Coalition for Open Government's Sunshine Breakfast, Brown talked a big game about transparency and how his office is there to serve the public. But in practice, his office is still defending the state against lawsuits over records destruction. 

In a recent records disclosure, documents that appear to be policy advice for various agencies are being sent out heavily redacted. This is advice that, according to Bob Ferguson's own office, should not be redacted in the first place and is the kind of information the public needs to know in order to hold their government to account. 

[Rose (SAO)] (15:38 - 15:41)

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

[Nixon] (15:41 - 16:25)

How sad that politicians haven't learned the lesson of authenticity. Being authentic means you don't have to lie to anyone. You don't have to tell them what you think they want to hear. 

While many voters may not like what they hear from you, there are many who will respect that you aren't blowing smoke up their ass. There's a reason politicians like Bernie Sanders win in districts that vote heavily Republican. It's because the people in those districts know that Bernie won't tell them one thing and then go do another.

Attorney General Brown and Governor Ferguson would do well to mind this lesson. At the Department of Corrections, staff were explicitly trained only to look for text messages if someone specifically asked for them.

[Johnson (DOC)] (16:25 - 16:30)

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

[Nixon] (16:31 - 17:15)

If they didn't get those magic words, they didn't look. At the Department of Children, Youth and Families, after the $225,000 settlement that they had to do, a staffer openly admitted they weren't searching Microsoft Teams chats unless they were directly told to. Not because the records didn't exist, but because the culture said don't go there unless you have to.

That's not ignorance. That's not human error. That's intent. 

At WaTech, the state's central IT hub, we've seen accusations of obstruction, cover-ups, of overstepping their authority to dictate records retention policies they have no legal right to set. All while record staffers remain disrespected, poorly resourced, and told to live a professional life outside of the legal mandates of their office. 

[Cuoio (WaTech)] (17:15 - 17:16)

Get it gone. 

[Nixon] (17:17 - 17:44)

At the Washington State Department of Agriculture, a public records officer allegedly altered a Teams chat before producing it, deleting her own comments about charging requesters extra to make them back off. All of this would be cause for despair, if despair was at all a helpful option. I don't think there's some kind of cigarette smoking man in this story, but it would be difficult to argue with anyone who saw all this and came to the conclusion that Washington's leaders have no respect for their constituents' right to know. 

[Rose (SAO)] (17:44 - 17:47)

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

[Nixon] (17:49 - 21:27)

Instead of doing all they can to defend and enrich your right to know, they are incessantly carving away at the protections government transparency is supposed to give you. The public's right to know is not a partisan issue, it's not a negotiable one. Democracy dies in the darkness, right?

Right? This isn't compliance, this isn't good governance, this is a bureaucracy rotting from the inside and it will keep rotting until someone, a leader, decides to break this cycle. It's with this context in mind that I hope Governor Ferguson will, you know, hit kind of the following notes.

Immediately and permanently end the auto-releasion of all public records as the AG's model rules clearly warns against. He must also release all records related to this six-month review, including draft notes, policy options, internal communications, legal advice, you know, without the need for new records requests. Give them to the press this week.

Post them on your website so all the public can see them. Yes, every email, every meeting note, every damn chat or text about this matter. You decided to do this behind closed doors.

This is the only fix for that. You must issue clear, legally sound guidance to all agencies that state that retention is based on a record's function and content, not on the platform that was created on it. And that there will be no tolerance for those who knowingly modify or destroy public records before they have met retention.

Governor Ferguson must commit to a process of public engagement on all future records policies, including meaningful opportunities for stakeholder input.

The Governor should also engage with Attorney General Brown and encourage him to stop defending this awful shit in court. While the AG is responsible for the legal defense of the people's agencies, they are also ultimately the people's lawyer.

The people are the AG's true client. The AG's office must start acting as though they realize this. How does defending agencies in court who defied not only AG's advice, but the AG's model rules seem like the more ethical play to you guys at all? 

Let me finish this up by saying, you know, no leader is worthy of their title unless they can lead even when they are wrong. I hope that this gives Governor Ferguson some hope, honestly. The best leaders don't hide their mistakes behind closed doors.

They face them in daylight before the people they serve. They don't wait for the perfect line, the safe angle, or the right news cycle. They stand up, they speak plainly, and they let the truth do the work. 

Leadership isn't proven in the moments you're right, it's proven in the moments you're willing to admit that you weren't. And when a leader owns a mistake with authentic contrition, when they show the courage to change course and the humility to learn, they strengthen the very trust that leaders need to legitimize their actions in the first place.

Bob Ferguson has had that moment in front of him for months. 

He can still be the one that owns this, who makes it right. He could stand before the people of Washington and say, look, you know, we got this wrong. We destroyed public records we should have preserved.