When the public learned in May that 10 months of Seattle Mayor Jenny Durkan’s text messages were missing, her office initially attributed the loss to an “unknown technology issue” with one of three phones she used during the period in question.
But officials already had known for months why the texts were gone and when they disappeared, internal emails appear to show. And City Attorney Pete Holmes says the initial explanation from Durkan’s office was misleading.
Durkan’s texts were set to automatically delete on a phone she started using in July 2020, shortly after racial justice protests had rocked the city, according to an email exchange between the mayor’s office and the city attorney’s office in January 2021.
That and other emails — among hundreds of pages of records that formed the basis for an ethics investigation that found the mayor’s office had broken the state Public Records Act (PRA) — also indicate that Durkan’s chief of staff was involved in keeping the public in the dark about the missing texts.
The mayor’s office declined to answer specific questions about the emails, which The Seattle Times obtained in July through a public records request to the Seattle Ethics and Elections Commission.
Instead, Durkan spokesperson Anthony Derrick said “litigation involving the city,” including a lawsuit filed by The Times over alleged violations of the PRA, “is expected to produce forensic information, tens of thousands of documents and information from numerous individuals.”
Derrick added: “As is usual with such cases, until that thorough and systematic work can be done, it is rarely accurate to make assumptions based on individual records.”
But Holmes, in a recent interview, said his office warned Durkan’s office that publicly attributing the loss to an undetermined tech issue was “untrue.”
“Someone changed the mayor’s settings from retain to delete — that is a deliberate act,” Holmes said.
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 for further assessment. Anyone who willfully destroys a public record that’s supposed to be kept is guilty of a felony, the law says. A forensic report on the missing texts is currently overdue.
Seattle could end up paying out “tens of millions of dollars in damages and fees” to resolve lawsuits over the Durkan administration’s handling of last year’s protests, and “those damned missing text messages” are complicating the city’s legal defense, Holmes added.
Forensic analysis overdue
The ethics commission learned about the missing texts in February, when a public records officer in the mayor’s office filed a whistleblower complaint. The records officer, Stacy Irwin, said she had been directed not to inform records requesters that the texts were missing and to “recreate” certain messages from the phones of people with whom the mayor had been texting.
The requesters — including four Times reporters — had sought details about how officials handled the Black Lives Matter protests, the Seattle Police Department’s evacuation of its East Precinct and the Capitol Hill Organized Protest, or CHOP. At least 48 requests touched on Durkan’s missing texts, the investigation found.
A lawyer representing Chen criticized the investigation as rushed and unfair. A retired judge subsequently hired by the mayor’s office determined it was conducted appropriately.
The city ethics commission’s investigation, carried out by public records lawyer Ramsey Ramerman, focused on how records requests for the texts were handled, rather than how the texts had been lost.
The city attorney’s office hired the Crypsis Group, a private contractor, last year to conduct a forensic analysis on that question. The work has cost the city $201,000 as of July 31. The contractor’s report, initially expected in late June, has yet to be released.
“It isn’t done yet, no,” Dan Nolte, a spokesperson for Holmes, said in an email last week. “The work remains ongoing.”
Derrick said the emails recently obtained by The Times have been examined by Ramerman and retired Judge Bruce Hilyer. The Durkan administration is conducting a systemic review of public records practices, is spending nearly $2 million this year to modernize that work and piloting solutions for storing and retaining text messages, Derrick added.
Not acting alone
The mess began midway through 2020, when Irwin and another public records officer in the mayor’s office, Kimberly Ferreiro, found out that the mayor’s texts from late August 2019 to June 25, 2020, were missing. For months, they conferred with Chen and with lawyers in the city attorney’s office about how to handle records requests for the texts.
Since the ethics investigation report was issued, Chen has received the bulk of the blame. Responding to the report last month, Durkan acknowledged that “the underlying actions fell short” and said Chen had been removed from public records duties.
But the documents recently obtained by The Times indicate Chen wasn’t acting alone.
In a Dec. 2, 2020, email exchange, Chen told Ferreiro that responses to requests for Durkan’s texts would require approval from above.
“This is too high profile and too much at stake that I need to run this up and get formas or fong’s sign-off,” Chen wrote, referring to Chief of Staff Stephanie Formas and Deputy Mayor Mike Fong.
Chen mentioned that she already had been “emailing formas” about the matter, including what “verbiage” to use in responses to records requesters about “the messages that we can’t recreate.
Irwin and Ferreiro also were in touch with the city attorney’s office about the texts.
In a partly redacted string of emails from Jan. 14 and Jan. 15, 2021, Irwin forwarded to Assistant City Attorney Aaron Valla a disclosure Chen had made to her: “What I learned was that the new phone was set to 30 days for texts but the setting was changed to Forever after it was discovered. This is why there is a missing range of texts.”
The 30-day “keep messages” setting that Durkan’s phone was set to is the shortest of three standard text-retention options on iPhones, along with “1-year” and “forever” retention choices.
Durkan’s office has said that she switched phones on Oct. 30, 2019, to gain access to a first-responder network, and got a third phone on July 9, 2020, due to a cracked screen and water damage.
If the 30-day setting on the mayor’s latest phone was at some point discovered and switched off, that must have occurred in late July; otherwise, the mayor’s texts from June 9 to June 25 would have been retained.
The mayor’s office and the city’s information technology department have declined to answer direct questions about who was responsible for the 30-day setting.
Last week, Nolte said the city attorney’s office “will defer to the forensic analysis” to answer specific questions about the retention-setting on the mayor’s phone.
“A big problem”
The emails obtained by The Times were among hundreds of pages of records reviewed during the city ethics commission’s whistleblower investigation.
Other records disclosed include phone logs documenting more than 500 text messages sent and received by Durkan from mid-January through August 2020, Ramerman’s handwritten notes and the March 4 letter Irwin sent to ethics commission Executive Director Wayne Barnett that sparked the investigation and informed him of the missing texts.
A “switch had been manually toggled and text messages were not retained,” Irwin’s letter stated. “I will tell the truth, but it will be extremely embarrassing to admit that I went along with the cover-up and did unethical things.”
Other emails within the underlying documents show that, as early as Aug. 25, 2020, a city IT staff member who couldn’t find one of the mayor’s old phones wanted to get an authorization code from Durkan’s new phone to assess whether the missing texts had been backed up on the cloud and could be restored
By Sept. 8, when emails show the mayor’s executive assistant still hadn’t located Durkan’s old phone, Chen opined in one email: “Ok, I think this could be a big problem.”
More than a month later, with deadlines approaching to respond to public records requests and legal discovery requests in lawsuits against the city, Chen still was trying to get the mayor’s new phone turned over to IT analysts for an assessment, emails exchanged from Oct. 5-13, 2020, show.
Durkan’s office declined to answer written questions about whether Formas or Fong approved the responses to public record requests that Ramerman’s investigation later deemed improper; whether attributing the loss of the mayor’s texts to an unknown technology issue was misleading; and when the mayor’s new phone was turned over for assessment.
Nolte confirmed last week that the mayor’s old phones eventually were found and turned over for the pending forensic analysis.
In the fallout of the city ethics commission investigation, Chen, who had been working for Durkan on loan from the city attorney’s office, was recommended to receive a written reprimand and pulled off public records work. Chen submitted her resignation from the city attorney’s office on Aug. 9, Nolte said.
Irwin and Ferreiro, the records officers, have since left their jobs and filed hostile work environment claims against the city.