Times’ lawsuit reveals answers to Durkan’s missing texts, leads to reforms

The City of Seattle has agreed to pay $200,000 and a series of reforms to settle a Public Records Act lawsuit filed by the Seattle Times over former Mayor Jenny Durkan’s missing text messages and other PRA-related issues.

The Times had requested a bunch of records related mainly to see how the city was responding to protests in the wake of George Floyd’s killing in Minneapolis.

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“We were trying to find out a few things,” said Times Executive Editor Michele Matasa Flores.

“One was how the city’s police force was dealing with protesters on the streets and whether they were using force appropriately or limiting the use of their force appropriately. The other was trying to find out who was making decisions both tactical and strategic about the CHOP protest zone,” she added.

“But Flores says the Times ran into a brick wall trying to get the records released to them and there were many delays, many rejections which they felt were in violation of the law. Then they also discovered – by getting certain records through other parties – that city officials had claimed they didn’t have responsive records when in fact those records did exist,” explained Flores.

“That’s how we discovered that there were quite a few missing text messages written by the mayor, and also the police chief, Carmen Best,” added Flores.

Eventually, the Times felt it was dealing with some “pretty flagrant” violations of the State Public Records Act.

“We don’t take suing lightly. We do a lot of haggling over records and trying to get access to information that the public is entitled to, we rarely file suit. But we decided in this case, it was really our only recourse,” she said, pointing out that is the only way to pursue records or violations in a case like this – a lawsuit.

While the city will have to shell out some $200,000 in fines and legal fees, Flores says the reforms are most important.

“While the city would not concede to the way I phrased it in terms of flagrant violations, they, in fact, say that they don’t have liability for these things. But they did acknowledge that they need to put better procedures into place. To me that says a lot to those of us at the Times, that says a lot” said Flores.

So, while the lawsuit won’t restore some 2000 of Durkan’s deleted text messages it reveals fresh answers and – if the city does what it’s agreed to – Flores says brings about important changes to improve transparency.

“They’re implementing software city wide, that will archive things like text messages, and other data. They will also make sure that all city-issued phones are set to retain text messages, which had not been done across the board. And in fact, we saw a completely inconsistent, almost Helter Skelter method of the city, it was hard to even tell which end was up. And that’s why they could never even get to the bottom of how these text messages mysteriously went missing. Because the systems just were not in order,” explained Flores.

The city also agreed to no longer unreasonably delay releasing records because of some internal review processes.

“We found in the course of discovery, in this case, that some records, it was decided that legally they should be released, but then they would put them through a public relations type screening for sensitive information, which is illegal. And we suspected that was going on, but this case confirmed that and led to months, many months of delay, in some cases. The city has now agreed to stop doing that,” said Flores.

“I’m a little bit nervous, this is going to be a hard one to enforce. But at least we have the language here and can turn back to it if we feel like they’re improperly delaying records,” she added.

Other details revealed during the lawsuit shed light on what exactly happened to Durkan’s texts.

“She apparently dropped her phone in Puget Sound at an undisclosed beach where she has a cabin, which is fine, we all can relate to that. I think we’re human things happen. It was after that in restoring the phone that the messages were set to delete. She says she doesn’t remember doing that. But she also acknowledges that no one else had access to the phone and could have done that,” Flores recalled.

“Now, it’s very possible that was done unintentionally. I know, I can get confused with all the settings on my phone. I get it. But was the city’s lead public official. They should have had processes and procedures in place to assure that kind of human error wouldn’t happen,” said Flores.

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The lawsuit also led to the discovery that former Seattle Police Chief Carmen Best regularly deleted her text messages.

Flores says this case could have a major impact on transparency and public access moving forward.

“If they follow through on this, the way that the settlement dictates they do, it’s enormous. I mean, who knows? What else was getting lost along the way? This case brought to light some practices that were serious violations of the law. So the potential for this having a big impact down the road is huge. We’ll see. And I hope that they follow the terms of the settlement,” said Flores.

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