A long-awaited forensic report on Seattle Mayor Jenny Durkan’s missing text messages from a key period during last year’s turbulent racial justice protests has yet to materialize as Durkan prepares to leave office this month — and officials aren’t saying when it will.
It’s been over a year since the city attorney’s office hired a private contractor to analyze the matter and more than five months since the office initially said it aimed to share the contractor’s completed report.
The contractor, The Crypsis Group, has continued to bill the city for its work; Crypsis had been paid $407,000 as of Nov. 29, up from $201,000 as of July 31, according to the city attorney’s office. But the office couldn’t say this week when the report would be available or why the work is taking so long.
“I don’t have any additional details to share at this point,” said Dan Nolte, a spokesperson for City Attorney Pete Holmes.
A spokesperson for Durkan said the mayor’s office had nothing to add.
Like Durkan, Holmes is leaving his position at the end of this month.
The forensic report could be important not only as a source of information for the public but also for several lawsuits filed against Seattle over the city’s handling of protests and unrest in mid-2020.
The city attorney’s office hired Crypsis to help with its defense because Durkan’s texts weren’t retained from late August 2019 to late June 2020.
Texts from at least eight other officials, including the city’s fire and police chiefs, also weren’t retained from periods overlapping with June 2020, when police used tear gas and abandoned their East Precinct, and when the first of two fatal shootings occurred in a zone on Capitol Hill ceded to protesters.
Texts not retained
The mayor’s office knew by August 2020 that her texts were missing and the city attorney’s office hired Crypsis in November 2020. But the information didn’t become public until May 2021, when the Seattle Ethics and Elections Commission issued a whistleblower investigation report.
The investigation was triggered by a whistleblower complaint from a public records officer in Durkan’s office. It determined that the office had mishandled requests from reporters and others for Durkan’s communications.
The investigation found that the office’s legal counsel had broken the state’s public records law by excluding the mayor’s missing texts from certain requests and had diverged from best practices by not informing requesters about the missing records.
Durkan’s office has been able to provide requesters with some texts from the period by retrieving them from people whom she was messaging with and whose texts were retained. The mayor has said she believed her texts were being retained while acknowledging that the way the records requests were handled “fell short” of the state’s law.
The public records officer who filed the whistleblower complaint and a colleague who supported her are suing the city, alleging they were forced to quit their jobs in retaliation for objecting to the way the records requests were being handled. The Seattle Times, which had reporters who were among the requesters, is suing the city over how the requests were handled.
The mayor’s office initially attributed the loss of Durkan’s texts to an “unknown technology issue” but later acknowledged that her texts had been set to automatically delete after 30 days.
Neither Durkan nor the city’s information technology department has taken responsibility for selecting the 30-day retention setting, which violates state law and the city’s retention policies. The Durkan administration has since launched an effort to overhaul the city’s management of electronic records.
The city’s statement of work for the Crypsis contract says the company’s activities “may include but are not limited to” six tasks totaling 85 to 180 hours of work, including 25 to 75 hours to conduct a forensic analysis and 10 to 15 hours to generate a written report. The statement of work includes pay rates of $300 to $700 per hour for different Crypsis employees.
The contractor had performed some if not all of its forensic work by the time the ethics commission conducted its investigation. It’s unclear what work the contractor has been doing in recent months.
A Crypsis spokesperson declined to comment Thursday, referring all questions to Holmes’ office. Holmes’ spokesperson said he had no details to provide.
The outcome of the matter could affect the lawsuits against the city. If the texts can’t be recovered, their destruction could be considered “spoliation” and result in sanctions, said Mark Lindquist, a lawyer representing a woman suing the city over her son’s fatal shooting in the Capitol Hill protest zone.
For example, Lindquist said he could request that jurors be told they could assume the missing records are unfavorable to the city.
“This is going to be a recurring issue in litigation for the city,” he said.
Karen Koehler, a lawyer representing dozens of clients suing the city for injuries they allegedly suffered at the hands of police during 2020 protests, said a judge recently asked the city to check with Crypsis this week for more information on why the forensic report is taking so long.
David Perez, a lawyer representing Black Lives Matter protesters over alleged police violence at demonstrations, called the delay “truly bizarre.”
“This shouldn’t be taking that long,” he said.