Seattle Times sues city of Seattle over Mayor Jenny Durkan’s missing text messages during protests

SEATTLE – The Seattle Times filed a lawsuit Thursday alleging that the city of Seattle mishandled requests from reporters for officials’ text messages during a tumultuous period last summer when police abandoned the East Precinct and used tear gas on protesters.

The complaint, filed in King County Superior Court, follows a whistleblower investigation that found Seattle Mayor Jenny Durkan’s office violated state public records laws in its handling of requests after discovering the mayor’s texts were missing for a 10-month period.

Four Seattle Times reporters were among the requesters affected. Their requests were largely focused on officials’ communications surrounding a series of events last summer, including fatal shootings in the Capitol Hill Organized Protest area that formed following the precinct’s abandonment and the resignation of former Police Chief Carmen Best. None of the reporters was informed that the mayor’s texts had not been retained.

The Seattle Times, represented by attorney Kathy George, claims the city violated the Public Records Act by withholding or destroying the mayor’s records after they were requested. The Times also argues the city did not respond to requests in a timely fashion and with the fullest assistance, as required by state law.

The city has said that one of Durkan’s city-issued cellphones was set to delete texts after 30 days, which goes against state law and the city’s retention policies. It is still not clear who is responsible for changing the retention setting to 30 days, the shortest standard option on an iPhone. Texts from seven police department officials, including the former chief, and the fire chief are also missing.

The Seattle City Attorney’s Office said it did not immediately have a response to the lawsuit, but would respond over the course of the litigation.

“We intend to review this new complaint and will respond accordingly,” said Dan Nolte, spokesperson for City Attorney Pete Holmes.

The Times is seeking the records requested by reporters, as well as attorneys’ fees and penalties that are allowed under state law “to deter future violations.”

Seattle Times Executive Editor Michele Matassa Flores said the paper is disappointed to have to resort to legal action, “but that seems the only way to get their attention.”

“In a democracy, it’s the public’s right to know who is making decisions at City Hall and why – whether it’s about spending tax dollars or shifting police tactics or anything else,” Matassa Flores said. “It should not take months or years for elected officials and public servants to explain their actions. And important records should not be destroyed.”

The missing text messages may also play a role in other lawsuits the city faces over its response to Black Lives Matter protests last summer, including from protesters who accused police of unnecessary force, the mother of a 19-year-old killed in the protest zone and a group of residents and businesses who allege they were harmed when police left the East Precinct.

The mayor’s office discovered in August that texts on Durkan’s city-issued phone between August 2019 to June 25, 2020, were not retained.

When Durkan’s staff realized the texts were missing, the mayor’s legal counsel, Michelle Chen, decided to exclude the missing texts from some requests, according to an investigation by the Seattle Ethics and Election Commission sparked by whistleblower complaints from two city public records officers.

At the time, there were 48 active requests that were interpreted as including the mayor’s text messages. Chen reinterpreted most of them narrowly to exclude the texts, and directed staff not to inform requesters, including Times reporters, that the texts were missing.

After reporting on the ethics investigation in May, the Seattle Times reviewed its own requests to the city, and focused its lawsuit on five requests.

One, which was submitted before the pandemic, asked for instructions to city departments – including the Mayor’s office – on communicating with reporters. The office determined that since the request didn’t specifically identify Durkan herself, her messages could be excluded.

Other requests sought communications between the Mayor and her staff and Seattle police regarding the use of “chemical crowd control agents” from early June to July 15, during the height of protests, and texts exchanged between front-line Seattle police commanders and Durkan’s office in a critical time period in the CHOP.

Some of the Seattle Times’ requests for the mayor’s texts were submitted before her phone settings were changed to retain messages, meaning they were deleted while the requests were pending.

For some of these requests, the mayor’s office noted that it would “recreate” the mayor’s texts, by pulling messages from the phones of other people she communicated with. In response to one request, the office sent a Seattle Times reporter Excel spreadsheets that purported to show a City Councilmember’s texts with Durkan.

The city also frequently pushed back the dates it said records would be provided, citing an “extreme backlog” of requests, or delayed responses from City Councilmembers. In one case, the police department said it could not release records about a homicide because it was an open investigation, even though a suspect had been charged.

The Seattle Times has previously sued the city over response to records requests. As part of a 2019 settlement to one such lawsuit, the city agreed to hold a “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. The Times’ lawsuit argues that the city, at minimum, violated the spirit of the agreement.