Mayor Jenny Durkan isn’t the only Seattle leader whose text messages from a key period last June were not retained and are unavailable for public disclosure, the city’s lawyers have told attorneys suing Seattle over events that occurred during that tumultuous time.
Fire Chief Harold Scoggins’ messages and then-police Chief Carmen Best’s messages also are gone for a stretch of time when police repeatedly used tear gas at demonstrations and the Capitol Hill Organized Protest (CHOP) zone emerged, attorneys David Perez, Angelo Calfo and Patty Eakes said Friday they recently learned.
That means the texts of three top Seattle leaders during the contentious period can’t be directly reviewed, making it less likely that plaintiffs and the public will know exactly how the officials discussed and made decisions behind the scenes during key moments.
A report on a whistleblower investigation into the improper handling of public records in the mayor’s office revealed Thursday that Durkan’s texts from Aug. 28, 2019, to June 25, 2020, were not retained. The attorneys suing the city said they weren’t provided dates for the missing Scoggins and Best texts, other than much of June.
Dan Nolte, a spokesperson for City Attorney Pete Holmes, said in an email late Friday that Durkan’s text messages are missing “due to a retention setting with her iPhone,” while Best’s texts are gone “for reasons we are still ascertaining.” Scoggins was locked out of his phone because of password issues, and his texts couldn’t be recovered, Nolte said.
Holmes’ office also acknowledged that, aside from the mayor and the police and fire chiefs, records on the devices of six other city officials — including at least three members of the Police Department’s command staff — have yet to be recovered due to password and device management software problems.
“Thanks to text messages collected from many other City employees, we believe we have captured a significant portion of the exchanges that we have not been able to collect directly,” Nolte said.
Perez represents the Black Lives Matter Seattle-King County organization in a lawsuit accusing the Police Department of deploying unnecessary violence against peaceful protesters at demonstrations last summer.
Calfo and Eakes represent a group of residents and businesses who allege they were harmed when the city abandoned the Police Department’s East Precinct and ceded the area to protesters and others for weeks.
The disappeared texts could have contained evidence key to the lawsuits, the attorneys said. In general, public records subject to disclosure must be retained under state law.
“We are extremely concerned that three of the most important city officials that were involved in overseeing the anarchy that was CHOP have been unable to produce their text messages in the time period that this was occurring,” Calfo said in an interview.
Durkan’s chief of staff Thursday attributed the mayor’s missing texts to an “unknown technology issue.” The city hired a consultant to conduct forensic work on Durkan’s phones, but the consultant has yet to write an analysis on what happened, Nolte said.
Durkan switched phones in October 2019 and July 2020; the forensic work couldn’t determine whether that was the reason the texts were missing, according to the whistleblower investigation by an outside expert for the Seattle Ethics and Elections Commission.
The mayor’s office at some point obtained a log from the city’s telecom company listing who the mayor had texted with and contacted all the city employees in the log “to see if the missing text messages could be recreated,” according to the whistleblower investigation. The office was able to obtain copies of some of Durkan’s missing texts, but not all.
The city so far “expended hundreds of thousands of dollars in attempting to locate and reconstruct the missing messages” for the various officials, Nolte said Friday.
The Fire Department didn’t immediately comment Friday evening. The Police Department didn’t provide a reason Best’s messages are gone. Best retired in September and now appears on television as a law enforcement analyst.
“SPD turned over all requested phones to the City Attorney’s Office,” the department said in a statement. “SPD understands that the vendor hired by the City Attorney’s Office to retrieve data advised that it was unable to retrieve Chief Best’s text messages for a period of time. While SPD understands that the City Attorney’s Office has been in communication with Chief Best on this point, SPD is not able to comment substantively on matters relating to pending litigation.”
In an interview Friday, Perez said city lawyers informed him March 26 about the missing texts.
“It was framed to me that there’d been a bad loss, that the mayor and other city officials’ texts were missing, and that this was an accident and we’re trying to resolve it,” Perez said. “They said [the texts] covered a period of time that would have included the weeks in June that were most relevant to our case.”
Perez said his notes from the conversation reflect that the city’s lawyers mentioned Durkan and Best, and he also remembers Scoggins being referenced. The lawyers didn’t specify how the texts went missing, Perez added.
“They said that this was a mistake and they were trying to be transparent,” Perez said.
After their clients sued in June, Calfo and Eakes warned the city to preserve various records, explicitly mentioning texts from Durkan, Scoggins, Best and others, a letter from the time shows. The attorneys requested the records in August and were told in October the city was working to collect them, Calfo said.
Calfo and Eakes didn’t learn from city lawyers that some of the texts were missing until April 30, and the lawyers didn’t provide details until Thursday, when they said texts from Durkan, Scoggins and Best were gone, Calfo said.
Calfo and Eakes also did not learn until Thursday that a public records officer in Durkan’s office had filed a whistleblower complaint accusing the mayor’s legal counsel of mishandling public records related to Durkan’s missing texts, Calfo said.
The resulting investigation determined that legal counsel Michelle Chen had engaged in improper action when she decided to exclude the missing texts from certain public records requests and diverged from best practices when she decided the mayor’s office wouldn’t inform requesters that the texts were missing.
The requesters sought details about how officials handled the Black Lives Matter protests, the East Precinct evacuation and CHOP. At least 48 requests touched on Durkan’s missing texts, the investigation found.
As part of a 2019 settlement to a Seattle Times public records lawsuit, the city agreed to conduct “refresher training” within the mayor’s office on employees’ “responsibility to retain public records, including those on City-owned or personal smartphones and mobile devices” among other conditions. That settlement was signed by Chen.
Karen Koehler, an attorney representing multiple clients suing the city for injuries they allegedly suffered at the hands of police during 2020 protests, said Friday that “no one from the city has mentioned anything to me about missing texts.”
“We found out about it last night by reading [the whistleblower report],” Koehler said. “We’re just looking through our discovery now, and it’s clear they haven’t given us everything.”
According to Nolte, the City Attorney’s Office “briefed (Koehler’s) attorneys, along with the attorneys in the other two cases, on March 26.”
Perez similarly didn’t know about the whistleblower investigation until Thursday, he said. He said he now expects to raise the issue in the lawsuit over police violence.
“Evidence must be preserved,” he said. “Obviously, the city didn’t preserve this evidence and that’s a big deal. And then, the city has covered up the fact that it didn’t preserve the evidence, and that’s an even bigger deal.”