Lawyers for the city of Seattle are denying that it broke the state’s public records law and have countersued The Seattle Times in response to a lawsuit alleging the city mishandled reporters’ requests for top officials’ text messages during a tumultuous period last summer.
In a 25-page formal answer filed Friday to the newspaper’s lawsuit, started in June, the city denied most legal contentions, including claims directly based on a city ethics investigation into a whistleblower’s complaint that found Mayor Jenny Durkan’s office violated the public disclosure law after discovering the mayor’s texts for a 10-month period were missing.
Although it concedes the mayor’s texts are lost, the city’s response, filed in King County Superior Court, includes a counterclaim against the newspaper and seeks a legal judgment that it “complied with all relevant provisions of the Public Records Act.”
The city’s countersuit is highly unusual, according to Katherine George, The Times’ lawyer in the matter.
“Governments ordinarily don’t file countersuits against public records requesters who are trying to enforce the public’s right to know,” she said in an email Monday.
Dan Nolte, a spokesman for City Attorney Pete Holmes, said Monday he wasn’t able to expound on the city’s legal strategy, adding, “We look forward to further responding to these claims as the litigation progresses.”
The counterclaim seeks to recover the city’s legal costs, expenses and private attorneys’ fees. Nolte said Monday the city has agreed to pay Pacifica Law Group, a private Seattle firm contracted to handle the matter, an amount “not to exceed $75,000 in legal services without prior approval.”
Seattle Times Executive Editor Michele Matassa Flores said Durkan “already acknowledged the city ‘fell short’ of the state’s public-records law — after the city’s own ethics commission and Durkan’s own independent review reached that conclusion.
“Given that, we’re extremely surprised and disappointed at the extent of denial shown in this countersuit,” Matassa Flores said. “What will it take for the mayor and her staff to give more than lip service to transparency and the importance of independent journalism?”
Three days before the city filed its legal response to the lawsuit, Holmes joined City Council President M. Lorena González to announce a proposal to beef up protections for public records officers that they said also would “build confidence in the transparency and accountability of Seattle’s elected officials, and ultimately strengthen public trust in City government.”
The newspaper filed its lawsuit in June, about a month after a Seattle Ethics and Elections Commission investigation report revealed that Durkan’s texts from late August 2019 to late June 2020 had not been retained.
Triggered by a whistleblower complaint made by one public records officer, Stacy Irwin, and supported by another, Kimberly Ferreiro, the investigation determined the mayor’s legal counsel, Michelle Chen, engaged in “improper governmental action” and broke the records law when she decided to exclude Durkan’s missing texts from certain requests.
Chen also directed the records officers not to inform requesters that Durkan’s texts were missing and to instead provide them with some exchanges that were “re-created” from the phones of employees the mayor had texted with, the investigation determined.
Chen, through a lawyer, has denied wrongdoing, contending the investigation was rushed and neglects to factor in advice Holmes’ office gave her, among other things. Irwin and Ferreiro, who contend they felt forced to resign due to hostility and retaliation, each filed $5 million claims against the city.
As of last November, the mayor’s missing texts were tied to at least 48 open records requests, according to the report. The missing records also were potentially key evidence in several high profile lawsuits against the city that focus on decisions by the mayor and other officials made last June, during racial justice protests and unrest on Capitol Hill, attorneys have said.
After the ethics commission’s report was released, Holmes’ office acknowledged that text messages sent or received at times last year on the devices of then-Police Chief Carmen Best, Fire Chief Harold Scoggins and six other city officials had also been lost or were missing due to unknown reasons or because of password and device management software problems.
Under state law and guidelines, local elected officials’ texts and other communications about public business must be kept for at least two years before being transferred to the state archives.
Four Times reporters are among the requesters affected by the missing records, according to the newspaper’s lawsuit. Their requests largely focused on communications surrounding last summer’s events, including fatal shootings in the Capitol Hill Organized Protest area and Best’s resignation. None of the reporters were informed that the mayor’s texts were missing.
Durkan’s office hired retired King County Superior Court Judge Bruce Hilyer to independently review the ethics commission’s investigation. He determined it was conducted appropriately and recommended, among other things, that several mishandled records requests be reopened and that the mayor’s office overhaul its records system.
In a July 2 letter to the commission’s executive director, Wayne Barnett, Durkan agreed that “the underlying actions fell short” of the city’s obligations under the public records act, writing that “no government should be looking to narrowly apply the law.”
Neither the city’s ethics investigation nor Hilyer’s review examined how or why the mayor’s texts went missing. Durkan’s office initially attributed the loss of her texts to an “unknown technology issue,” then acknowledged that her phone at some point was set to delete texts older than 30 days.
A forensic analysis, for which the city so far has spent at least $123,000, is expected sometime this month, Nolte has said.