I’ve been joking lately that some weeks I spend more time with lawyers than journalists.
Other times we launch a proactive legal move to guard the public’s right – under the law – to documents that shed light on the workings of government.
Right now we’re doing both in a single case – one involving multiple branches of Seattle City Hall and many unanswered questions about police conduct and the handling of civil rights protests last year.
The Seattle Times sued the city in early June 2021 after hitting repeated obstacles to obtaining public records. Three of our reporters sought documents that could help explain the decisions and motivations behind Seattle police officers’ use of force against protesters; their shuttering of the East Precinct; their light-touch handling of the Capitol Hill Organized Protest zone; and the resignation of police Chief Carmen Best.
A fourth reporter sought records illuminating how the government handles communications with news reporters. Our reporters felt growing frustration over the funneling of even seemingly simple questions to city departments through the mayor’s office, creating a logjam.
Here are selected highlights of how those four reporters’ requests were handled:
- On one request, the city delayed producing records 10 times, bumping the estimated completion by a week here, two months there, then five more months – you get the idea. We’re still waiting.
- It denied a request for records related to two fatal shootings in the CHOP zone on the basis that those were open investigations, even though one investigation was completed and charges had been filed.
- Text messages, which are considered public record when sent or received by public officials, were somehow deleted from phones belonging to leaders including Mayor Jenny Durkan herself. The city has not been able to explain how the mayor’s phone was set to auto-delete texts after 30 days. Ten months of messages were lost.
- Upon realizing the messages were lost, the mayor’s legal counsel improperly decided to interpret one of our requests as excluding the mayor’s text messages while quietly planning to “re-create” missing texts in response to other requests.
- No one told the requesters – our reporters, acting on your behalf – about that interpretation or the loss of requested texts. And here’s one we hadn’t seen before: Instead of producing actual text messages from officials including the mayor and her staff, the City Council produced Excel spreadsheets describing the texts.
Each and every one of those moves violated state law governing how public records are maintained and made available.
So why did we sue?
Most importantly, we want the documents. We hope they will help us explain — to taxpayers, voters, all residents – what was going on at City Hall during one of the most tumultuous times in recent history.
We also want the court to demand that officials explain why they denied some records and delayed, destroyed or lost others.
And finally, we want the court to impose financial penalties allowed under the law. We believe this might be the only way to get city agencies to respond properly to future requests.
The city’s own Ethics & Elections Commission, after investigating a whistleblower complaint filed by a records officer in the mayor’s office, found multiple violations of the Public Records Act and legally recognized best practices.
Then the mayor’s own independent investigator looked at the matter and agreed.
Then the mayor herself wrote a letter to the director of the ethics commission, acknowledging those findings and pledging to do better.
So imagine our surprise when the city’s response to our lawsuit not only denied any violations of the law but made a counterclaim against The Times. The response seeks costs and legal fees from us, and it reserves the right to seek an injunction against us.
If you’re scratching your head, you aren’t alone.
Mayor Durkan has said that she believes in transparency and the importance of independent media, and that she values the city’s, and her own, relationship with journalists.
She also has said she didn’t know about the countersuit filed by City Attorney Pete Holmes (an elected official) until she read about it in The Times, an explanation that raises other questions for me. As a client in several Seattle Times cases by now, I’ve always reviewed our legal filings and have helped guide our strategy.
Why wouldn’t the mayor take a more active role in what should be a high-priority case? Why wouldn’t Holmes consult with the city’s top elected official before bringing a countersuit which his office said was unprecedented?
The city’s lawyers – in-house and contracted – have told us we shouldn’t worry about the part of their legal filing that seeks money or threatens an injunction. But that kind of “there, there” reassurance doesn’t mean much when the record on file with the court still contains that language.
On our part, this fight is not just about us and our work.
It’s about the city’s accountability to the public. At one point, 48 different records requests involved the mayor’s missing texts; they were filed largely by media including KING, KIRO, KOMO, Crosscut, KUOW and Real Change, a nonprofit street newspaper. Some requests came from individuals describing themselves as constituents or activists.
Our case is now in the discovery phase, an opportunity to submit formal questions and document requests in an often-tedious march toward the truth.
Durkan, to her credit, says she is taking steps such as a remedial review of records requests and an advisory group including media and transparency experts.
But if she, her city departments and the City Council are as open to transparency as she says they are, they could save a whole lot of time and money by closing down their fight against us — and opening up City Hall to the people.