No one is taking responsibility for loss of Seattle Mayor Jenny Durkan’s text messages

Two weeks after an ethics report revealed that Seattle Mayor Jenny Durkan’s text messages were missing for a 10-month period that included the peak of last summer’s Black Lives Matter demonstrations, no one has taken responsibility for the loss of the potentially key public records and no outside authority is investigating.

Durkan’s office acknowledged last week that at least one of three city-issued phones she used in 2019 and 2020 at some point was set to retain her texts only for 30 days, rather than forever.

But the mayor later said she didn’t choose the 30-day setting (the shortest of three “keep messages” options on an iPhone) and Seattle’s information technology department, which provides phones to city employees, also isn’t taking the blame.

Durkan switched phones in October 2019 so she could have access to a first-responder network, and in July 2020 due to “a screen crack and water damage,” according to her office.

In an email last week, Megan Erb, a spokesperson for the IT department, said all three phones used by Durkan were “set up in accordance with our standards” and then “handed over to her staff.”

Since then, Erb repeatedly has avoided answering direct questions about whether that means someone in the IT department or the mayor’s office set one or more of Durkan’s phones to delete texts and to not store copies in the city’s online accounts. The mayor’s texts are missing from late August 2019 to June 25, 2020.

While other Seattle officials also are missing texts for periods that include June 2020, the 30-day setting has been cited as an issue only in Durkan’s case.

“It is not the practice of Seattle IT to change retention settings on phones,” Erb replied when asked whether the department selected the 30-day setting.

The point could be crucial in determining whether someone intentionally set the mayor’s phone to delete texts, counter to the state’s public records law that generally requires communications about government business to be retained.

Whether intentional or a mistake, it was Durkan’s responsibility under state law to keep such texts. It also was her responsibility per Seattle’s IT security policy. The policy puts the burden of retaining public records on “each city employee,” Erb noted.

The city’s IT security policy also says: “When the City receives a public disclosure request, a discovery request in connection with litigation, or other form of request to which it is legally required to respond, records on a City-owned device must be retained until the City responds to the request.”

There are multiple active lawsuits against Seattle that hinge on City Hall’s decision-making last June. Many of Durkan’s text conversations with other city employees have been obtained through those employees’ phones, but not all. At least eight other Seattle officials are also missing texts.

State law requires each local elected official to take a training course on the Public Records Act, and the law about preserving and improperly destroying records.

The mayor’s office has said Durkan believed all of her texts were being automatically backed up. But the city has no text-backup policy, according to the IT department, and Durkan’s office and the department won’t or can’t say why the mayor’s texts weren’t saved to the cloud.

The public learned about the missing texts this month when an ethics report, spurred by a whistleblower complaint from public-records officers, said records had been mishandled by Durkan’s office. The report determined that the mayor’s office of legal counsel had improperly excluded the missing texts from certain records requests and hadn’t informed requesters the texts were missing.

The report said Durkan’s legal counsel learned that texts were missing in August. The mayor hasn’t said exactly when she realized that texts were gone, and it’s unclear why June 25, 2020 is the date after which her texts were retained. Durkan’s office didn’t answer those questions this week.

The ethics report focused only on the records requests rather than investigating how the texts were lost. Since its May 8 release, large portions of the report have remained redacted based on the mayor’s attorney-client privilege assertions.

Meanwhile, multiple contenders in Seattle’s 2021 mayoral race (Durkan isn’t seeking reelection), including Colleen Echohawk and Jessyn Farrell, have called for an outside investigation, with Echohawk sending letters to state Attorney General Bob Ferguson and King County Prosecutor Dan Satterberg.

Neither Ferguson nor Satterberg have received a formal referral from a law enforcement agency about the matter, their offices said this week. Such referrals typically are required for a case to be investigated.

Among other Seattle mayoral contenders, Andrew Grant Houston has said Durkan should resign and Bruce Harrell told the Stranger she should consider resigning.

Durkan’s office says the mayor is dedicated to government transparency. The office has worked with the city attorney’s office to pull text conversations from other employees’ phones, and her administration is now piloting automatic cloud-based data collection for texts, a spokesperson said.

But the mayor’s office this week declined to answer several follow-up questions about her missing texts, deferring to a pending report on a forensic analysis by a consultant. The analysis, which was commissioned by the city attorney’s office more than six months ago and which failed to recover the texts, has cost the city $123,000 to date, Dan Nolte, a spokesman for the city attorney’s office, said this week.

The mayor’s office also hasn’t acted on requests this week by the Seattle Times and, separately, by the nonprofit Washington Coalition for Open Government (WCOG), for Durkan to waive her attorney-client privilege so the public can see the May 8 ethics report in full.

“It is time to be fully transparent,” WCOG president Michael Fancher wrote in a May 18 letter to Durkan. “This goes to the heart of your relationship with the voters and taxpayers of the city, as well as your legacy as mayor.”

The eight other officials missing texts from periods including last June include then-Police Chief Carmen Best, Fire Chief Harold Scoggins and four members of the Police Department’s command staff. Lawyers suing Seattle over last summer’s Capitol Hill Organized Protest zone warned City Hall in June to retain texts.

Nolte, the city attorney’s office spokesperson, has said Best’s texts and Assistant Police Chief Eric Greening’s are missing for “reasons we are still ascertaining.” The office has cited problems with phone passwords and software for the other city officials.

In an October 8 email thread provided by the Fire Department to the Times, Scoggins asked several IT and fire staff members for tips to access his iPhone, saying he’d been locked out and didn’t know the password to get in.

After troubleshooting suggestions didn’t work, Scoggins later wrote to the group that he’d “ended up at the Apple store,” where his phone was reset. In the process, all texts in his phone from before Oct. 8 were lost, a Fire Department spokesperson said.

When asked for further details about how the Police Department officials lost their texts, the department provided no additional clarity.

“Because of pending litigation needs, certain SPD phones were collected and turned over to the City Attorney’s Office for forensic extraction,” a statement shared by a department spokesperson said. “In most cases, these phones were no longer in use, having been replaced as part of a scheduled transition to a new carrier.”

Andrew Myerberg, director of the city’s Office of Police Accountability, said he has received at least one complaint about Best’s missing texts. Myerberg said this week he hasn’t decided whether to launch a formal investigation, noting that the matter may be better addressed during litigation.

The city faces multiple lawsuits stemming from its handling of last summer’s demonstrations. Several lawyers who represent those suing the city have said the missing texts could be key to their cases and that they plan to raise destruction of evidence as an issue.

Nolte this week said Seattle is “working doggedly to track information down on all fronts,” but declined to say whether the city has sought to subpoena any of its wireless carriers to try to find copies of the missing texts. The city attorney’s office rarely does that, and those in the office couldn’t think of a time when a subpoena drew “actual text content from carrier,” he added.

But Mark Lindquist, a former prosecutor who’s representing a woman suing the city over her son’s fatal shooting in the protest zone that was largely abandoned by police, said criminal investigators commonly “use warrants to seize phone records from service provider, including text messages.”

The forthcoming report from Cryspis Group, the consultant hired in November to conduct a forensic analysis on the matter, is expected to provide “a full written account of every effort the City undertook to pursue these text messages, including whether we sought information from the carriers or sought a subpoena,” Nolte said. The report is expected “by the end of next month, if not before,” he said.

In the meantime, a spokesperson for Durkan said this week the mayor’s iPhone is now set to keep texts “forever.”