Seattle Mayor Jenny Durkan, whose text messages are missing for a 10-month period that includes the peak of last year’s Black Lives Matter demonstrations, at some point had an iPhone set to automatically delete texts older than 30 days, her office acknowledged Tuesday.
The missing texts could spur changes in how public records are handled at City Hall, and a mayoral candidate Tuesday asked state Attorney General Bob Ferguson to investigate. The matter would need to be referred by law enforcement for Ferguson’s office to consider investigating, according to his office.
Durkan’s texts were not retained from late August 2019 to June 25, 2020, a whistleblower investigation report revealed last week. In an email Tuesday responding to several days of questions about how that happened, the mayor’s office said a forensic analysis has determined that Durkan’s text retention was set to 30 days “on one of the three phones issued” to her at some point between late August 2019 and July 24, 2020.
“At all times, the Mayor believed and had assumed all her text messages (iMessages and SMS messages), calendar and emails were backed up and available to anyone and would be quickly and fully produced,” Durkan’s chief of staff, Stephanie Formas, said in a statement.
The city has been able to obtain a significant number of the mayor’s messages from Seattle employees whom she texted with, Formas added. But not all.
In part, that’s because text messages of other top officials, including Seattle’s police and fire chiefs, also are missing for periods that include last June. Their texts are missing for various reasons, including password and device-management problems, Dan Nolte, a spokesperson for City Attorney Pete Holmes’ office, has said.
While employee emails, documents and chats are backed up to the cloud, the city’s “current policy does not provide a way to quickly retrieve SMS/iMessages without the phone, and it does not prevent inadvertent destruction of records due to hardware failures, hardware losses or other technology issues inherent in cellular phone security requirements,” Megan Erb, a spokesperson for Seattle’s information technology department, said in an email Tuesday.
The 30-day “keep messages” setting that Durkan’s phone had at some point is the shortest of three standard text-retention options on iPhones, along with “1-year” and “forever” retention choices. It is generally inadequate for preserving public records of substance under state law, and elected officials should know that, according to one top open-government expert.
“There’s nothing in state law that says you can automatically delete records after 30 days,” said Toby Nixon, a Kirkland City Council member and president emeritus of the Washington Coalition for Open Government.
The mayor’s use of the 30-day setting is the most detailed explanation providedsince last week’s whistleblower investigation report was published. That investigation, ordered by the Seattle Ethics and Elections Commission, determined that Durkan’s legal counsel had engaged in improper conduct by excluding the texts from some public-records requests.
Text messages are public records subject to disclosure that generally must be retained under state law. Durkan’s missing texts could be particularly important, because several lawsuits are pending against the city stemming from the events of last June when police used violence to quell public protests and abandoned an area to demonstrators on Capitol Hill where two fatal shootings later occurred.
Lawyers for the plaintiffs in at least three of the lawsuits have said they weren’t informed of the missing texts until this spring.
Last Thursday, Durkan’s chief of staff attributed the missing texts to an “unknown technology issue.” Last Friday, Holmes’ office said the problem had been “a retention setting with her iPhone.” The city hired a consultant to conduct forensic work on the mayor’s phones, but the consultant has yet to write an official report on what happened, according to Holmes’ office.
Durkan switched phones on Oct. 30, 2019 and July 9, 2020, according to her office; the forensic analysis couldn’t determine whether that played a role in her texts’ disappearance, the ethics commission’s investigation report said.
The texts of at least eight other officials weren’t retained, The Seattle Times first reported last Friday. Fire Chief Harold Scoggins lost his texts after he was locked out of his phone, and then-police Chief Carmen Best’s texts are gone “for reasons we are still ascertaining,” Nolte said.
The six other officials whose texts weren’t retained, per Nolte, include four members of the Police Department’s command staff: Chris Fisher, Eric Greening, Valarie Anderson and Deanna Nollette.
City Council President and mayoral candidate M. Lorena González and Holmes are working on a proposal to create a new, independent entity to handle mayor’s office records requests, they said Monday, arguing that move would address the misconduct cited in the ethics commission investigation.
“Seattle’s strict public-disclosure requirements are sacred to transparency, and they should never be evaded for any reason,” González said.
Another mayoral candidate, nonprofit leader Colleen Echohawk, wrote a letter Tuesday asking Ferguson to “immediately open an investigation into the suspicious disappearance of large numbers of public records created by high-ranking government officials.
“No matter the cause, a credible, neutral third-party investigation will help restore the public trust that has been badly damaged by these revelations,” she wrote.
Echohawk forwarded her letter to King County Prosecutor Dan Satterberg, who could request an investigation by Ferguson, campaign consultant John Wyble said. Like Ferguson’s office, Satterberg’s office said an initial referral would need to come from a law enforcement agency.
Durkan isn’t running for reelection this year.
Under state law, anyone who willfully destroys a public record that’s supposed to be kept is guilty of a felony. Most elected and public officials in Washington are required to take public-records training, which includes information about records-retention requirements.
In general, it would be “really hard for someone in an elected position … to say they didn’t know that records had to be kept,” said Nixon, who added that, in his view, setting an iPhone to automatically delete texts after 30 days represents “willful ignorance of how record-retention laws work.”
Under the Washington secretary of state’s requirements for preserving public records, local government elected officials’ text messages and other communications about public business must be kept for at least two years before being transferred to the state’s archives “for appraisal and selective retention.”
Some Washington cities use special software or services through their wireless carriers that allow them to automatically and regularly capture and archive the text messages of city officials and employees.
Seattle is now “looking into third-party vendors with tools that would allow for automatic cloud-based data collection,” said Erb, the information technology department spokesperson. A pilot project launched this March with five participants in the mayor’s office, she said.
Because last summer’s protests and unrest marked “an important historical matter,” Nixon said he “wouldn’t be surprised if the state archives would want to keep all those [elected officials’ communications] for the future historical record.”
Local governments also have a legal duty to preserve evidence relevant to any potential lawsuit.
This isn’t the first time the Durkan administration’s handling of texts and other communications has raised legal and ethical questions by those seeking such records. In 2018, four of Durkan’s top staffers used private email accounts to discuss the city’s controversial repeal of its so-called head tax, but the mayor’s office didn’t initially disclose those conversations in response to public-records requests until the emails later surfaced in a lawsuit.
In a 2019 agreement settling a separate lawsuit filed by The Times, the city acknowledged that some texts of one of Durkan’s deputy mayors that should have been kept had instead been automatically purged. The mayor’s office agreed to conduct “refresher training” about handling public records, including retaining texts and other records, as part of the settlement.
That settlement was signed by Michelle Chen, the mayor’s office legal counsel implicated in the ethics commission’s whistleblower investigation.
Durkan also isn’t a novice on records technology matters. In her former role as a U.S. attorney, she helped craft the U.S. Department of Justice’s cyber strategy and served for two years on the then-U.S. attorney general’s cybersecurity advisory committee.
A lawyer retained by Chen, Darwin Roberts, told the ethics commission Monday that its investigation was rushed and cast too much blame on Chen. Wayne Barnett, the commission’s executive director, stood by the investigation, which was conducted by public-records expert Ramsey Ramerman.
The whistleblower who triggered the investigation with a complaint was Stacy Irwin, a public-records officer in Durkan’s office.
In an interview, Irwin said the office’s staff members were instructed to retain all texts and delete none, with the exception of “transitory” messages not related to actual city business. She said the phones also were supposed to be set to store backup data on the cloud.
Irwin has been on unpaid leave since shortly after filing her whistleblower complaint; she requested but was denied paid administrative leave, she said.
Kim Ferreiro, a public records officer in Durkan’s office who supported Irwin’s complaint, resigned around the time the complaint was filed partly because she feared retaliation, she said in an interview.