Ep. 10 And make it discoverable? LOL

Ep 10 And make it discoverable? LOL

[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 - 0:45)

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 - 1:28)

Hello, and welcome. This is the public records officer podcast. I am your host, Jamie Nixon.

Thank you all for listening. After a short layoff, the prop is back with some fresh awfulness to tell you about the culture of secrecy infecting Washington State's government. The excellent Cascade PBS podcast, Northwest Reports, recently sat down with three experienced state house reporters in Olympia.

When Sarah Bernard asked them to describe Governor Bob Ferguson's first six months in a single word, here was some of their answers.

[Sara Bernard] (1:28 - 1:37)

So, if you had to describe the first six months of Governor Ferguson, how would you each describe it, like in one word or one sentence?

[Melissa Santos] (1:38 - 1:42) Elusive, maybe?

[Laurel Demkovich] (1:43 - 2:27)

That's a good one. I was going to say confusing.

[Jerry Cornfield]

Struggling is a word that comes to mind for me.

[Nixon]

I agree with each assessment there. And this should be concerning for all Washington residents.

When veteran reporters use words like these to describe the state's current governor, I'd like to think that he'd take a moment to consider why. Even more, I'd like the people who voted for Ferguson to consider the impact of the thesis being discussed here. I mean, these reporters aren't rookies.

Melissa Santos has been covering the legislature for over a decade. Jerry Cornfield has been there since 2004, 2005. Laurel Demkevich started in 2020.

They're not discussing this because they're bored. I'd say they're trying to flag what appears to be a cultural shift.

[Melissa Santos] (2:27 - 3:10)

I wasn't expecting sort of the lack of press availabilities. These are when the press really has an opportunity to just freeform ask questions. He does do some press conferences that are sort of set up about a specific topic, but he's not doing as many of these sort of back and forth.

Maybe I talk for 30 seconds at the top, but then just take reported questions for a half hour. I will say that surprised me a little because he's been very in the press for many years to the point that it was a point of criticism. Like, oh, he's running for governor.

He's just doing all these grandstanding press conferences about lawsuits when he was attorney general. That was a criticism we heard from Republicans. So sort of to see him almost feel like he's retreating a bit from the press felt a little weird to me.

[Nixon] (3:10 - 9:55)

Past governors often held a weekly press availability, unstructured time for reporters to ask whatever they needed live on camera with no filters. Ferguson simply doesn't do them. It's kind of weird.

He shows up for scripted single topic pressers, reads carefully drafted talking points, and then walks off, often without taking any questions. And if you try to go around him, you run into a new rule. As the Seattle Times reported back in February, agencies can't talk without clearing it through his office first.

This means that the Department of Ecology wants to brief you on toxic waste. They have to wait for the governor's comm staff to approve the decisions of the subject matter experts and the professional communications staff at your state agencies before anything goes out.

As someone who's worked as a public information officer in one of those agencies, I can tell you this redundancy is wholly unnecessary.

It does nothing to make things more transparent. In fact, it does the opposite. The communications professionals at these agencies are well trained and often have more experience in public service than the governor or his team does, and they have a deep understanding of the communications needs for their particular lane.

They know when an issue requires the governor's staff to be involved and when it doesn't. Then there's the travel stuff with Ferguson. In just late September, his office sent a press release to a select few reporters saying he'd be traveling out of the state for two weeks.

I say a select few because I spoke to one member of the press corps who believes they should have received the release, but inexplicably did not. But there were no details given on where he would be or the purpose of the travel. That release, which should have been posted on his website but wasn't, should have given his, you know, a loose itinerary of some kind, but it didn't.

And before everybody's like, oh, get off his back, he's allowed to have a vacation. Absolutely he is. But this matters because when the governor is out of the state, the lieutenant governor is technically in charge.

It's almost as if Ferguson thinks the people of Washington have no need or right to know who's running the state when he's gone. Since taking his oath, Ferguson has repeatedly left the state without notifying the press or the public, sometimes not informing them until after he has returned. This is a wholly unacceptable disregard for the people's right to know.

And this is part of a larger pattern I've talked about here. Lest you think I'm some lone gadfly rabble-rousing voice, I'm not alone. There is a coalescing sense that something is really wrong with the governor's, I don't know, weird behavior.

It's just weird. The Northwest Reports podcast piece is one of several pieces that have been published since Ferguson took office around 10 months ago, highlighting his reflexive desire to keep the press and thereby the public in the dark about what he and his office are up to. There was the aforementioned Seattle Times piece in February.

Bill Lucia, the editor-in-chief at the Washington State Standard, since early August has written two pieces on this matter.

The Seattle Times editorial board published an editorial piece in February encouraging Ferguson to not shy away from using the bully pulpit, as they put it. The idea being get in front of the press, talk.

Center Square reporter Carleen Johnson has kept an eye on Ferguson's transparency issues.

On September 25th, the Seattle Times also published my recent op-ed, taking on the matter of Ferguson's continued silence on auto deletions. I mean, he set a six-month deadline for review of team's chat auto deletion policy, a policy he defended in court as AG.

We are now coming up on eight months since he made that announcement and his office hasn't offered an accounting or any update. And don't forget, he is conducting this review of the people's access to their own records, totally behind closed doors.

The Public Records Act makes clear that elected leaders do not have the right, do not have the authority to decide what the people can or cannot know.

And right now behind closed doors, that's exactly what Bob Ferguson is doing. All that said, Ferguson's actions reflect a much larger problem than just his weird behavior. Washington is nearly bereft of leadership, championing the people's right to know.

When you look at the evidence, you will see a systemic active disdain towards transparency. Here's a real quick look at the rap sheet, right?

From Ferguson's control freak approach that he has now thrust upon the agencies he leads by forcing their communications through his office.

This includes the fact that many people and press outlets send requests for information to his only to be totally ignored. No response at all. Not even a, you know, we're not going to, you know, thank you, but no thank you, right?

His continued refusal to discuss the audit relations of Teams chats, even though his own

self-imposed date to do so is nearly two months gone. His defense of audit relations in court while he was AG, despite the AG's own model rules, speaking directly against the practice and advice from his office, specifically warning agencies about using it.

We have the legislature's push to get the courts to allow them to work in total secret under the guise of legislative privilege.

And now the state house of representatives has its very own audit deletion system.

The attorney general's refusal to treat the people as their most important client, instead opting to defend agencies in court over their terrible records handling practices, regardless of the level of wrongdoing found along with the AG's refusal to prosecute the early destruction of retainable records.

You have the courts’s acquiescence to the attorney general's argument that if an agency destroys a record before anyone asks for it, regardless of the retention schedule, the public can go fly a proverbial kite.

The courts have also made space for agencies to take as much time as they like to resolve public records requests. As long as they tell you they need more time, the court will let them take it.

We're talking years here.

We have a state auditor's office, the government's watchDAUG, right? That appears to lie to citizens requesting audits about open meetings and records by telling them the law doesn't allow them to do such audits. But I have records showing that they do perform such audits.

And I have records showing they tell this lie to more people than just me.

A state auditor's office, whose top legal advisor openly accused WaTech of a years-long cover-up without telling the public or initiating an audit of that agency.

[Rose (SAO)] (9:55 - 10:13)

I know that. I think you guys do this intentionally sometimes, like the cover-up about stuff for over a year that you knew wasn't being, hadn't been kept. I think intentionally sometimes the organization WaTech doesn't talk to its lawyers because they've got a thing going on.

And that's my concern.

[Nixon] (10:13 - 10:21)

A state auditor's office whose top legal advisor advised other agency staff that they don't have to answer informational questions from the public.

[Rose (SAO)] (10:21 - 10:24)

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

[Nixon] (10:24 - 10:31)

This from the agency whose mission statement clearly reads on their website, to promote accountability and transparency in government.

[Rose (SAO)] (10:32 - 10:34)

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

[Nixon] (10:35 - 12:55)

When you put all this together, you have a nearly complete disregard for the people's right to know. What's more, a recent study out of the transparency records of 44 state governments. Washington, which is a state that prides itself on being a sunshine state.

A lot of people believe the public records act of Washington is a model piece of legislation that other states should emulate.

Washington ranked 41st in overall transparency out of 44 and dead last in timeliness of response. Now, what do you think happens when, we're talking about leadership level people here.

What do you think happens with the rest of the staff when they see the leaders acting in this way? When you see the leaders looking at this problem in this way, that culture filters down to the staff, executing the policy.

We see DFW public records officer, Anne Masias, apparently following advice from Washington state department of agriculture, public records officer, Pamela Potwin, charging reporter Shauna Sowersby a massive upfront fee for a request.

Potwin later deleted her advice, possible felony and DFW modified forms to ensure Sowers be new. She had no option to pay just 10% to begin production of those records. To the best of my knowledge, these people are still employed despite their reprehensible, unethical and possibly illegal conduct.

All of this shouts culture of secrecy.

Let's get into the new stuff, which again, goes to the idea of what happens when leaders act the way they do. What are the rest of the team?

What's the rest of the team do, right?

I received some correspondence from WaTech in the last couple of weeks that while shocking, isn't surprising. This correspondent shows that not only our agency staff looking to find ways to avoid giving you records they don't want you to have, they're also employing a tactic of purposely not creating records of their work in the first place.

You know about the DAUG group. I've talked about DAUG, D-A-U-G, right? Stands for e-discovery accelerator user group.

They hold biweekly meetings between records staff and WaTech officials. I've played you several clips from these meetings. Here's a medley of some of their greatest hits.

[Cuoio (WaTech)] (12:56 - 13:05)

You know, if I wanted to be a jerk about it, which I think I would, if I were in your guys' shoes, it'd be like, hey, I'm exporting these all in native format. Here's a million of them. Have at it.

[Rose (SAO)] (13:06 - 13:45)

You got a bigger fight with teams. Wouldn't be our strategy at our agency. Your strategy would be to disclose that, here you go.

We're going to try and produce as much as we possibly can. I don't want to take the role of what the Supreme Court's going to do, but these team chats and stuff like that, yeah, I have concerns, but that's all the other concerns about stuff that disappears and stuff we can't find. If people are asking, if they're asking questions, why did you guys pick the seven days?

You don't have any documents that show that. That's a request for information and you don't have to answer those questions.

[VanKrieken (HMU)] (13:46 - 14:24)

One of the things I've kind of wondered for a while, actually, maybe not necessarily in our tenant, is how does, I'm just throwing this out here, talking to no one, how does an agency decide that they're going to have a one-day chat retention? Because the shorter the retention period below seven days, if that's a threshold that's reasonable, the shorter amount of time you have to make it that either side makes the determination if something should be retained. I mean, how short is reasonable?

So my question would be, well, if the lower you go, the more unreasonable it seems. Like if one day isn't good enough, why not one hour?

[Johnson (DOC)] (14:25 - 14:39)

Who decided to say that team 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 mean.

[Nixon] (14:40 - 17:19)

But ever since the press caught wind of the auto deletions, WaTech has gone to great lengths to simply cover up discussions about the topic completely so no one can gain access to them.

Here's a DAUG meeting I haven't told you about yet. The October 24th, 2023 DAUG meeting.

So this will be about two months after Shawna Sowersby first tweeted that she was aware these auto deletions were happening. And this is about 10 days after she puts out her first story. Back when she was with McClatchy News, she put out a story on October 13th, 2023, letting the public know that these auto deletions were occurring.

So in this October 24th, this is the first meeting after that piece, right? October 24th, 2023, I requested this meeting. I received the video and the meeting notes, right?

So the recording of the meeting because they do it over Teams and the meeting notes that WaTech themselves drafted to memorialize the meeting. On the second page of the notes, there's a line that says, quote, Teams: off the record, unquote. Now that section takes up the meeting notes.

The entire second page is almost completely about this part of the meeting. But I'll let you know, when they say off the record, they mean it. I was pretty excited to hear about this conversation, right?

You can imagine me being the nerd I am and trying to figure out what the hell happened here. I was looking forward to hearing that part of that meeting once I saw the notes. Like, oh, I'll fast forward.

Now, those notes show WaTech did record this meeting. But when they got to that point in the meeting where they discussed the Teams chats and auditions, they stopped the recording, purposefully and knowingly so. It wasn't an accident, and it wasn't an honest mistake.

In the show notes, you will find a link to the transcript of this episode. Click on that link. Go to the spot in the episode transcript, and you will find a link to the meeting notes that I'm referring to.

I've also provided a link to the video of the meeting so that you can see for yourself that at the very moment where this part of the conversation is about to happen, WaTech kills the recording.

These are state staffers who you pay to handle important tasks like the proper legal retention of your public records, deciding on their own that you don't need to know about what was said there.

You should just trust them.

It was all on the up and up. Because if it's one thing Americans know, if there's missing tape, it must be all good.

Right, Richard Nixon?

[Richard Nixon] (17:20 - 17:27)

That I welcome this kind of examination because people have got to know whether or not their president is a crook. Well, I'm not a crook.

[Nixon] (17:33 - 23:35)

I not only asked for the recordings of the DAUG meetings and the notes that were taken, but I also asked for the chats from those meetings. I did a big request for a bunch of these DAUG meetings, right? And I got this October 24th one.

And part of that was I wanted to get the chats that occurred during the meetings. You know, on like Zoom or Teams, not only can you talk to those with whom you're meeting, there's also a live chat option. Share ideas, send files, make fun of your boss, you know, whatever.

Well, after sending me the notes and the recordings, WaTech attempted to close the request without sending a single chat. Now, I could have sued them right there. That day, they closed the request.

The request wasn't complete. They withheld records. There are activists on the other side, if you will, of the transparency argument who are convinced that people like me are doing it for the money.

They think that any requester who is too pesky is out there bombarding the system with requests in the hope that we can identify a mistake and then pounce, you know, with a lawsuit that will garner a solid payday.

And there may be a few of those requesters, but that's not me.

If that's what I was about, WaTech would have already paid me for the mistake of closing this request when they did without sending any chats.

When I received WaTech's email informing me that they had closed the request, and once I had realized there were no chats, I sent them an email reminding them that I specifically asked for the chats and that their response was incomplete.

They got back to me the same day, as I recall, and told me they'd get back to me in a month with the chats. Now, I really wanted to see those chats from those meetings.

In the video recordings of these meetings, the chats are often referenced by those who are speaking. As much important material as the recordings themselves gave me, I was certain the chats would have as much, if not even more material that would give me further insight into the issue of the audit relations and what all had happened here.

So after telling me it would take a month, two months later, WaTech sent me a batch of chat files and once again closed the request.

So excellent, right? Got what I wanted. They sent the files, about 150, 160 or so files of chats.

There was one minor problem with what they sent me. None of the chats they sent me are from those meetings. Not one of them.

Those 150 to 160 files, none of them are from the actual chats that were held during those meetings, which is what I wanted and is what they knew that I wanted. Nearly every chat they did send me was out of scope. I think out of the 150, 160, only two of them were from even the dates of those meetings.

It's my bet that they destroyed the chats, which they shouldn't have. If the meetings were retained long enough for me to request them, the live chats should have been too. I mean, they're part of the meetings.

I know some of the chats should have been retained just based on the content, because I know what was in some of them, because the DAUG group talked about the content of the chats during the meetings. Oh, so-and-so said this in the chat. Let me talk about that.

I mean, so I am currently seeking confirmation that the chats were destroyed. I'm 99% certain they were, though I'm not sure WaTech will confirm it, because as the Chief Legal Officer for the State Auditor said

[Rose (SAO)]

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

[Nixon]

Also, along with the chats, recordings, the notes, I asked for any shared files.

So as you chat during these meetings, you send a file to everybody to look at or a particular person to look at. And while they delivered several, they decided to not deliver a file that was sent during one of those meetings, their mobile device usage policy. I'm sure that was just an innocent oversight, you know, like the time the DAUG ate their hard drive.

But wait, there's more. In just the last couple weeks, I received some excellent new revelations of the thought-out, purposeful evasion of transparency by WaTech.

Listeners of this show will remember that on February 17th, 2025, Governor Bob Ferguson suspended the auto-deletion policy on Teams chats.

After seeing some documents from other agencies, I saw that there was a meeting held on February 18th between records and information staffers and WaTech regarding the suspension. Sounded like a DAUG meeting, right? Same kind of group of people.

So I submitted a request for what I figured would be a DAUG meeting on February 18th. At first, I was told I would receive documents on September 1st. I submitted the request sometime in mid-July.

On September 2nd, I was told that that was a typo and that I would not receive any documents until September 18th. All right. Annoyed, but patient, I just let it go.

September 18th came around and I could not believe what I received. First off, I was told there was no DAUG meeting. One could say I made a mistake in calling it a DAUG meeting, being a little too specific.

And this is how WaTech is trying to hide what they have or don't have in regards to that February 18th meeting. Well, you did ask for a DAUG meeting. One of the documents I have that tipped me off to this meeting described it as an e-discovery meeting.

But honestly, that doesn't really matter. The Public Records Act makes clear that agencies are to be helpful to requesters in obtaining the records they are looking for. Here's an AI-generated reading of the pertinent section of the PRA.

[AI VO] (23:37 - 24:02)

Agencies shall adopt and enforce reasonable rules and regulations to provide full public access to public records, to protect records from damage or disorganization, and to prevent excessive interference with other essential functions of the agency. Public records shall be protected from loss or damage. An agency's regulations shall provide for the most timely possible action on requests for information and full assistance to inquirers.

[Nixon] (24:02 - 26:16)

Let me repeat that last part. I want to make sure that we're clear on this. An agency's regulations shall provide for the most timely possible action on requests for information and full assistance to inquirers.

Now, WaTech did say records that we believe are responsive to your requests have been provided. We will continue in this manner unless you provide additional clarification by September 28th, 2025, meaning that they would continue on with the rest of my requests, the rest of the records that my request entailed, unless I got back to them before September 28th. I have responded to WaTech on this matter.

I did so before September 28th, but as of the publishing of this episode, they have not responded to my clarification. That clarification was that I expect to be given the records regarding any meeting occurring that day regarding the suspension of the audit deletion policy, and I will keep you posted as to what happens as we go forward with this. I have posted all the materials from this request.

Again, links on the transcript, and you can find those at thepublicrecordsofficer.com, or you can get a link to the transcript in the show notes as well. Now, I actually was sent some records by WaTech along with this we don't have a DAUG meeting thing. They sent over 130 meeting invites for a meeting titled Q&A Teams Chat Policy Change.

That was held on February 19th. Now, here's where it gets a little too perfect. I didn't technically request a meeting from the 19th, right?

And with over 130 meeting invites, I mean, I kind of want to get this meeting now. I see that like, oh, God, I need to request that meeting. Well, a staffer from the Department of Enterprise Services had a question for WaTech's Angie Scherer about that February 19th meeting.

Using a little AI voiceover magic here, the staffer asked Angie,

[AI VO]

will you be recording this meeting tomorrow?

[Nixon]

And here's how Angie Scherer responded. I kid you not, this is what she said in her email.

[AI VO] (26:16 - 26:20)

And have it discoverable? I am not sure how to answer that.

[Nixon] (26:21 - 27:33)

I mean, so WaTech purposely didn't record a meeting where important details regarding the retention of the people's records were discussed. And the idea of not recording it was apparently hilarious to WaTech's Angie Scherer. We avoided public scrutiny.

It's so great. This isn't a joke. This is an example of the people's government actively undermining democracy for a fucking belly laugh.

Now, I could request that meeting, but what would the point, right? They obviously didn't record it and any chat was likely destroyed. I have a question for everybody, especially people at WaTech.

I hope you're listening. I know some of you are listening. I know some of you do.

What do you call it when a government purposefully works to ensure the public doesn't find out what they are doing or saying about the public's business? Anyone?

I'd call it a fucking coverup.

Or if you're a state employee, maybe it's just standard operating procedure at this point.

[Rose (SAO)] (27:33 - 27:36)

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

[Nixon] (27:36 - 28:18)

To be clear, this isn't about Angie Scherer, who I understand is no longer at WaTech. She was taught to do this. She was taught to think this way.

She was taught to do this by the culture of secrecy that has completely infected WaTech. And pretty much infected the rest of Washington State's government as well. WaTech doesn't give a shit about your desire to know how the policies that affect your access to your public records come to fruition.

And the fact that they don't let you know is hilarious to them. But they have been taught by their leadership that it's okay to take your tax dollars and then decide behind closed doors what you can or cannot know.

[AI VO] (28:19 - 28:21)

And have it discoverable? Get it gone.

[Nixon] (28:29 - 28:29)

So there it is.

[AI VO] (28:29 - 28:31)

And have it discoverable?

[Nixon] (28:32 - 29:46)

In Washington State's government, that's not just a quote. It may as well be the mission statement. I mean, just put it on the letterhead.

The people of Washington built one of the strongest transparency laws in the nation because they were tired of secrets. And they demanded sunlight. A half a century later, the people in charge have found a new innovation.

Darkness with plausible deniability. Every act, every memo, every meeting that should have been memorialized or recorded that wasn't, that's your government patting you on your pretty little head and whispering, you wouldn't understand, sweetie. It's none of your business.

Just trust us. It's all backed up by a knowing grin, a wink, an LOL, and a smiley face emoji. You know what's not funny?

Is that they think the joke lands. Because in their heads, the punchline is that you'll never see the receipts. That you'll get tired.

You'll give up. You'll move on. That you'll accept that open government now means you can file a request and we'll get back to you someday.

Maybe. You have a governor who won't take questions.

[Rose (SAO)] (29:46 - 29:50)

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

[Nixon] (29:50 - 29:57)

An attorney general that defends deletions. A legislature that auto-deletes its own work and demands to work in secret.

[Cuoio (WaTech)] (29:57 - 29:57)

Get it gone.

[Nixon] (29:58 - 31:15)

Courts that shrug and say, eh, give him more time. An auditor's office that won't do its job, won't be transparent with the people about why they're not doing that job. And the bureaucrats?

They learned the lesson. If the secrecy isn't punished, let's make it policy. Washington has gone from the people's right to know to the government's right to make it up as they go.

So here's the deal, Washington. If your leaders won't lead, you damn well need to. Because Washington has been here before.

When the legislature refused to act, the people wrote and passed the Public Records Act by initiative. They forced openness into law. They turned the lights on.

And now, a half-century later, those lights are flickering. If the people have to do it again, so be it. Maybe it's time for another initiative.

Another reckoning. One with teeth. Because transparency isn't some charity.

It's the rent that power has to pay if they want to lead the people. So to Washington State's government, go ahead, laugh it up.

[AI VO] (31:15 - 31:16)

And have it discoverable.

[Nixon] (31:17 - 31:43)