Ep. 5 The Cost of Erasure

Ep 5 The Cost of Erasure

[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] (0:36 - 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] (0:53 - 1:14)

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

Before we dive into the heart of this episode, I want to let you know that after this episode, the show is going to take a bit of a turn, not away from transparency and open government related issues, but it will no longer focus solely on the auto-relations of Teams chats as we've done here in the first few episodes. 

[Cuoio (WaTech)] (1:15 - 1:15) Get it gone. 

[Nixon] (1:16 - 1:34)

Now, that does not mean we won't continue to discuss auto-relations as it's a story that is still cooking. It hasn't gone away or anything, but we will now start discussing other issues in and around the issues of government transparency more broadly. Even in this episode, we are going to discuss issues not directly involving auto-deletions. 

[Johnson (DOC)] (1:34 - 1:40)

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

[Nixon] (1:40 - 2:19)

Moving forward, we will discuss legislative privilege, legislative auto-relations, the open meetings violations, the continued whittling away of people's access to government records, et cetera. As well as with another pet issue of mine, we're going to get into elections a little bit. 

The Trump administration's recent call for the end of vote by mail is as stupid as it is dangerous, as is the power grabbing move by sycophantic anti-democratic Republicans in Texas, a move which will no doubt move other states to answer in kind.

They're engaging in a mid-cycle redistricting scam because Trump knows the GOP will lose the house next year unless they use a cheat code of some kind. 

[Rose (SAO)] (2:19 - 2:22)

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

[Nixon] (2:22 - 4:49)

Not that democratically controlled states have been wholly benevolent on this issue, but more blue states have tried to go to a more non or bipartisan approach with commissions and whatnot than have traditionally Republican controlled states. So the show will become a bit more multifaceted going forward. It is my hope that will make the show more approachable to a larger audience. 

And also early next month, we're going to have a conversation with Miranda Spivack. Miranda is a former Washington Post editor and journalist. She has written extensively on issues surrounding government secrecy and access to information from state, local, federal governments. 

She recently put out a book in May called Backroom Deals in Our Backyards. It's a fascinating book. If you have any interest in this topic at all, I suggest you read that book. 

It is incredible to read. It'll make you feel both disillusioned and hopeful around this issue. At least it did me.

And I'm really looking forward to that conversation with her. And you'll probably get to hear that conversation at some point in the midpoint of next month. But for now, let's get on with the costs of erasure. 

If you're like me, a self-identified transparency nerd, you probably spent a lot of time thinking about public records in the abstract. I picture a massive digital library filled with the collective wisdom and work of our public servants just waiting for us to browse. We imagine a system that works, governed by fair laws and defended by altruistic, public-minded officials. 

Alas, this episode isn't about that utopic light of make-believe. This episode is about the real human cost of what happens when that system fails. The cost of erasure isn't just measured in megabytes of data. 

It's measured in shattered due process, legal fights lost before they even begin, and in the everyday lives of Washingtonians who are denied a fair shake by a government with a very short-term memory.

Let's start with a perfectly infuriating example that a regular person would never even see. A couple years ago, a litigant in a case against the Department of Labor and Industries knew that a key conversation had occurred on a Microsoft Teams chat.

They knew it. Their lawyer knew it. So the attorney sent a request to the Attorney General's office, who was representing Labor and Industries, asking for those messages.

The response? Well... 

[AI VO] (4:53 - 4:54)

Under the Department of Labor and Industries records retention policy, Teams chats have a seven-day retention Before they are automatically deleted. Teams channels have a 30 retention before they are deleted automatically. We have provided the policies for your review. 

[Nixon] (5:06 - 5:41)

Let that sink in. The state's top legal office, run by then-Attorney General Bob Ferguson, was telling a litigant, in writing, that the evidence they're looking for is just... gone. 

Vanished into the ether. And they're not even that sorry about it. There's no apology here. 

It's like they were saying, yeah, we had the records. They may have been relevant to your case, but our system deletes them so fast, it's really your fault for not asking sooner. Better luck next time. 

[AI VO]

Get it Gone 

[Nixon]

This is exactly what my attorney, Joan Mell meant when she told us this. 

[Mell] (5:43 - 6:58)

What the courts have said, at present, is that the only time you can complain about a record that has been destroyed is if you've asked for it. And after the ask, the record is destroyed. And they'll only give you relief if you find the record. 

So the ones that have actually been destroyed, there's nothing that the courts will do about that. And actually, I've had a court tell me that those are speculative claims. If you can establish that clearly, it looks like there's missing records because there should have been a responsive email or there's emails that are referenced in other emails and they don't exist, I've literally had the court say, well, that's speculative. You can't recover for what you think should be there. And that's very rewarding for an agency and it certainly incentivizes people's records disappear. 

[AI VO]

Get it gone. 

[Nixon] (6:58 - 7:07)

The state's top legal team is defending the practice of records destruction, claiming that if the evidence is deleted before a request is made, there's no harm and there should be no penalty. 

[Rose (SAO)] (7:07 - 7:10)

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

[Nixon] (7:10 - 7:43)

This isn't just bad lawyering. It's an insult to justice. It's a system designed to fail the public and it's the legal defense we have been fighting for a couple of years now. 

However, Bob Ferguson's failures on records handling didn't just happen around auto deletions. They've cost the taxpayers millions, even when records technically existed. Just last year, his office agreed to pay over $3.1 million to settle a case after a King County judge blasted the attorney general's office for withholding evidence. 

[AI VO] (7:43 - 8:10)

The discovery violations in this case are egregious, severe, without excuse, and the result of willful disregard of discovery obligations by both DSHS and the attorney general's office. The court is at a complete loss to understand how the largest law firm in the state could be so cavalier with respect to their discovery obligations and how such a large amount of responsive material could be overlooked and simply ignored. 

[Rose (SAO)] (8:10 - 8:11)

They want an explanation we don’t have to give them an explanation. 

[Nixon] (8:13 - 8:24)

We editorializing. That is the court, the words of the court, nearly 11,000 pages of documents that should have been turned over to a plaintiff gone missing until the judge dragged it out of them.

[AI VO] (8:24 - 8:28)

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

[Nixon] (8:29 - 8:36)

And when they finally looked deeper, they found out it wasn't 11,000. It was more than 100,000 pages that had been wrongfully withheld.

[AI VO] (8:36 - 8:39)

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

[Nixon] (8:39 - 8:51)

This wasn't about whether teams had a seven-day retention setting. 

[AI VO]

Get it gone 

[Nixon]

This was about the state's top legal office under Bob Ferguson flat out denying someone a fair shot in court and choking off access to critical evidence. 

[AI VO] (8:51 - 8:54)

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

[Nixon] (8:55 - 9:04)

The right to due process and a fair trial doesn't just mean a jury and a judge. It means having access to the evidence, all of the evidence that could prove your case. 

[AI VO](9:04 - 9:08)

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

[Nixon] (9:08 - 9:15)

When the state withholds records, whether intentionally or through incompetence, they're not just breaking discovery rules. They're trampling on people's civil rights. 

[Rose (SAO)] (9:15 - 9:17)

Uh, you guys don't get this. I don't think. 

[Nixon] (9:17 - 10:48)

And the bill for this, over $3 million wasn't paid by Ferguson, not by the attorneys who failed to hand over the records, but by you, the taxpayers. 

This is the bigger story people miss. Bob Ferguson's leadership has normalized a culture where public records and legally discoverable evidence are treated like an inconvenience, not a constitutional duty, and certainly not a democratic necessity. 

Whether through automatic deletion or blatant withholding, the effect is the same justice denied accountability dodged and Washington's taxpayers footing the bill.

The state seven day deletion policy and the technical lag of its search tools worked in perfect destructive harmony to make litigation holds a legal joke. A litigation hold for those who don't know is a legally mandated, do not erase button. When an agency knows it's being sued, it has a paramount duty to preserve all potentially relevant records.

But what if the very system you're using is designed to work against that 

[AI VO]

Get it gone

[Nixon]

internal agency emails prove they knew about this conflict from the very beginning. As early as November, 2021, the Department of Labor and Industries was circulating a draft message warning staff to not use Teams chat to discuss substantive content or topics related to an active litigation hold because of the seven day retention. This isn't speculation. 

It's an explicit admission that the tool was fundamentally at odds with their legal duties. 

[Rose (SAO)] (10:49 - 10:55)

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

[Nixon] (10:55 - 11:59)

Meanwhile, over the Department of Ecology, they were having similar conversations about litigation holds for PFAS related cases, PFAS. In one email, there's a discussion about the need for a funnel or a central point of contact with the AGO to ensure uniform communication preservation efforts. They knew they needed to be proactive, but they were working with tools that were inherently reactive. 

Columbia legal services and a letter to the attorney general's office regarding a case they were trying against the Department of Corrections demanded the immediate protection of any potentially evidentiary records related to their case. They knew that critical communications could be disappearing by the hour. They were trying to beat the clock on a system built to lose evidence.

Columbia legal services attached a copy of Shauna Sowersby's October 13th, 2023 story on the team's auto deletion issue to make clear that they were aware of what was happening with those records. Columbia legal also sent a strongly worded letter directly to William Kehoe, the Chief Information Officer at WaTech admonishing him to halt the destruction of possible evidentiary material. 

[AI VO] (11:59 - 13:10)

Enclosed with this letter is a copy of a letter Columbia legal services sent to the department of corrections lawyers on October 13th, 2023. That letter is self-explanatory. To the extent that you or your staff control the retention of information that is subject to this litigation hold, you must take immediate steps to stop the destruction of that information indefinitely. 

We understand from the Olympian article that state policy may allow for the destruction of the information described in the litigation hold letter after only a few days. That policy must be suspended now in order to preserve discoverable information in this case. We also understand that state policy says that agency employees are not to use platforms described in the litigation hold letter for substantive matters.

That said, we have no reason to believe that department of corrections staff are adhering to that state policy. Indeed, it would be foolish to assume that staff are not using these platforms to discuss matters related to our case and by so doing that DOC staff are generating discoverable information. Failure to preserve that information violates our client's right to discover that information and threatens the integrity of the civil justice system. 

[Nixon] (13:10 - 13:41)

It doesn't stop there. There's also the extraordinary letter from Disability Rights Washington. Disability Rights Washington mission statement reads, quote, our mission is to advance the dignity, equality, and self-determination of people with disabilities. We work to pursue justice on matters related to human and legal rights, unquote. 

In June 2023, Disability Rights Washington sent a letter directly to the department of corrections. While the whole of the letter is worth reading to pick up on the genuine sense of urgent concern expressed in it, here's an AI generated reading of part of that letter. 

[AI VO] (13:42 - 15:42)

DOC has instructed staff to use Teams chat for transitory communications and not for communications that require retention under the public records act or for other reasons. However, our review of records has given us reason to believe that DOC staff are across ranks, positions, and geographic locations using Teams chat to communicate about topics that are very much not transitory communications and which DOC has, in written guidance, explicitly directed them not to use Teams chat for. 

Such topics, like personnel matters, health care management for specific incarcerated individuals, deciding conditions of confinement matters for specific incarcerated individuals, etc., should be preserved, but we have not yet seen any evidence that any of the staff members whose records we have reviewed have done so. 

Beyond concerns about compliance with the public records act, we also have concerns about the ways in which the automatic destruction of such records may be in conflict with our investigation rights under federal law.

We previously had a brief conversation with Denise about the DOC's seven-day retention policy, and she explained that this timeline was actually driven by a broader policy applying to all state agencies. Thus, we think that in order to address the concerns we've identified with the Teams chat usage by staff and the records retention timeline for chat messages, it may be necessary for folks outside of DOC to be involved in finding resolution. 

Given what we have seen and what we know about DOC thus far, we feel like there are realistically two options here that could resolve the issues we've identified. Either DOC disables the Teams chat function for all staff, or DOC works to have the state agency policy changed so Teams chat messages are retained differently.

[Nixon] (15:43 - 17:02)

From the timeline we've been able to put together here at the Public Records Officer Podcast, it was after receipt of this letter that the Department of Corrections did an internal audit of their Teams chat usage to find their staff were generating 900,000 chats per week. Remember, these are all supposed to be transitory, right? This isn't a hypothetical risk. 

The human cost here is as direct and as terrifying as it gets. An agency that handles the lives, liberties, and due process of thousands of people was operating with a system that was fundamentally broken. When records vanish, due process is undermined. 

Shauna Sowersby understood this very well. The disappearing ink wasn't just about bad public records practices, it was literally erasing lifelines. Attorney Mell agrees. 

[Sowersby] (17:18 - 17:24)

It has these huge implications on people's lives, you know, this isn't just, oh, yeah, like you said, it's not just, oh, we deleted some records, whatever, like, this is a, you know, can mean the difference, you know, I believe that Columbia kind of talked about how that can mean the difference between somebody getting out of jail when they should, or that can mean that they have to stay in jail longer for no reason, you know, because these records are just gone, and there's stuff in there that could have helped them in these cases. 

[Nixon]

The disappearing ink wasn't just about bad public records practices. It was literally erasing lifelines. And Joan Mell, my attorney, agrees. 

[Mell]

Oh, absolutely. Absolutely. I mean, I think the one that would hit home, you know, the DOC thing certainly hits home for those people who are trying to communicate with loved ones who are incarcerated and trying to ensure that they have access to people, making sure they're safe while incarcerated, you know, that disappearing ink on their inability to communicate is critical. It’s a lifeline for a lot of families. 

[Nixon] (17:33 - 17:57)

But the harm doesn't end there. As you can tell from the letters sent by Disability Rights Washington, this problem touches some of our state's most vulnerable citizens, and the system's meant to protect them. 

A recent Seattle Times story from Shauna Sowersby revealed that the Office of Superintendent of Public Instruction, OSPI, quietly changed its policy for how it handles special education community complaint decisions, allowing them to be deleted just after six years. 

[Rose (SAO)] (17:57 - 17:59)

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

[Nixon] (18:00 - 18:08)

Kids are still in school. Six years? This isn't some minor administrative record. These are documents that, according to advocates, have precedential value. 

[Rose (SAO)] (18:08 - 18:12)

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

[Nixon] (18:12 - 18:56)

They are used to help families fight for appropriate services for their children. Julie Gunter, a mother of a child with disabilities, discovered this when she tried to access the 2017 decision to use in her advocacy for her child's needs within the school system. That record had been destroyed. 

Not because it was irrelevant, but because a policy changed without public input had erased it. A state representative, Gerry Pollet, stated the decision to destroy these records after a short period of time is, quote, mind-boggling, unquote. He compared it to the destruction of police misconduct records, saying, quote, I can't understand why any public agency would not retain records of its actual complaint decisions, especially when it pertains to civil rights complaints, which is what special education complaints are, unquote. 

[Rose (SAO)] (18:56 - 18:59)

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

[Nixon] (19:00 - 19:42)

Gunter is quoted in the article saying, quote, there is no price tag on these records, but that doesn't mean they're not public resources that are of incredible value, not just now, but for posterity, unquote. Pollet is right. Gunter is right. 

There is no price tag on these records, but there is a profound human cost to their destruction. 

This is a story about a government agency erasing its own history of civil rights decisions, leaving families and advocates to fight battles that should have been settled years ago. 

It's not just data that's being lost. It's the institutional memory of justice. It's the scaffolding of due process for Washington's most vulnerable citizens.

The story caught the eye of Republican state Senator Paul Harris. He issued a statement from his office that reads, 

[AI VO] (19:43 - 20:25)

It is unacceptable that OSPI does not place more importance on retaining records related to complaints, especially those dealing with special education students. Parents and advocates for these students should be able to access such records upon request. A policy that allows these records to be deleted after only six years hampers efforts by parents and advocates to improve the special education system for students. 

If OSPI and Washington state archives fail to fix this soon, the legislature should step in to ensure the record retention policy meets the needs of parents and special education advocates. 

[Nixon] (20:25 - 21:02)

Hear, hear. 

As we peel back these layers of human cost, the legal battle intensifies.  

My own lawsuit against the state over these teams of relations has hit a critical point, right?  

The state's core legal argument? That if they destroy the records before you request them, there's literally nothing the people or the courts can do. Get it gone.  

It's just legal jujitsu. The state argues that destroying the evidence before it's requested eliminates the crime. This simply incentivizes records to disappear. 

The AG must see this. 

[Al Rose (SAO)] (21:02 - 21:04)

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

[Nixon] (21:05 - 22:29)

This is the brutal reality of an unchecked, unmonitored records policy. It's not just a technical glitch. It's a systemic failure that directly impacts the most vulnerable citizens of Washington state. 

It's a failure that the state's leaders did nothing to stop when it became clear the damage was being done. It's not just auto deletions, right? It's a state records committee apparently changing retention policy so agencies can destroy records directly related to the needs of people with disabilities without regard for the impact of such a decision on the communities those records serve. 

We've walked through the human cost, the kids, the inmates, the desperate families all impacted by records that vanished into thin air. We've seen the state argue that if a record is gone before you ask, there's nothing you can do.

This culture has followed Bob Ferguson's assent to the very top of Washington's political system. It was aided by a legislature that demands to work in secret. It was a culture that was ignored by former governor Jay Inslee while he was in office.