Gonzalez scolds Durkan over public records requests, but needs to get her own house in order (UPDATED)

For the past several days there have been ongoing revelations regarding mishandling of public records in the city’s executive branch, and particularly in the Mayor’s Office. In brief: for several months from late 2019 through mid-summer 2020, text messages from the city-issued phones of Mayor Durkan, SFD Chief Scoggins, and SPD Chief Best were not archived, and the problem wasn’t discovered until last summer. Once it was discovered and efforts to retrieve the lost texts failed, the Mayor’s Office tried to recreate them by contacting the people that the Mayor had texted. The Mayor’s Office then — allegedly at the direction of her staff attorney — mismanaged public document requests that should have included the Mayor’s texts from that time period by not disclosing that messages were missing or had been recreated, and in some cases quietly narrowing the scope of the requests. There is not yet a full accounting of what happened, and hopefully the City Auditor is now on the case, but it raises many questions about a lack of independence from political pressure for the people whose job is to respond to public document requests.

Yesterday, in response to the controversy, City Council President Lorena Gonzalez announced that she and City Attorney Pete Holmes were working on a plan to create an independent entity to handle public document requests to the Mayor’s Office.  Her press release prominently trumpets what she considers to be the better processes of the legislative branch, which she oversees:

To ensure transparency and independence, public disclosure requests for Seattle City Council records are managed by the Office of the City Clerk’s Public Disclosure Unit in cooperation with Legislative Department employees. Requests are not managed by council staff or staff that report to elected councilmembers.  “Public disclosure requests for information from the Mayor’s office should no longer be controlled by those that directly report to the Mayor’s office,” added Gonzalez. 

Not so fast. A review of the public records processes in the legislative branch show that they are far from squeaky-clean.

It certainly is true that public document requests for the City Council and the rest of the legislative branch are directed to the Office of the City Clerk, which is staffed with public information officers who manage those requests. But the City Charter makes it very clear that the City Council appoints the City Clerk, and Seattle Municipal Code specifies that the City Clerk works “under the direction of the City Council” and that the Council has the power to assign other tasks to it. In other words, the City Clerk is managed by, and fully under control of, the City Council — and practically speaking, the Council President (Gonzalez), who directly manages the City Clerk. So the people managing public records requests for the City Council are no more independent than those for the Mayor’s Office.

And the Council has its own records-retention problems. All city employees are issued “@seattle.gov” email accounts, whose contents are automatically archived. The public information officers for essentially all departments in the city have tools that allow them to directly access those email accounts and search for messages that are responsive to public document requests, without the intervention or cooperation of the employee who uses the account. The email system automatically archives all messages, including those deleted by employees. And archives of the email accounts of former city employees are also preserved so that they too may be searched for records responsive to public document requests.

However, it is well known (and hardly hidden) that Councilmember Sawant’s office does not use their “@seattle.gov” accounts the vast majority of the time. Instead, they have set up their own separate gmail accounts that they use as their primary email accounts for conducting official city business. The City Clerk’s public information officers have no direct access to those accounts; any public document requests received that would cover Sawant and/or her staff are sent to those employees, who then scan their own email and return a set of responsive emails. Here is the official explanation of the policy, as described by Elizabeth Adiksson, Deputy Director of the Office of the City Clerk:

For PDRs submitted to the Public Disclosure Unit that potentially concern a Council office — the Public Disclosure team searches all mailboxes within the “@seattle.gov” system for responsive records and also reaches out to the respective offices to search for responsive records that may exist on email accounts that are outside of the City network (such as Gmail).  The Council office records custodian then collects and provides potentially responsive records for review and disclosure by the Public Disclosure Unit.  This procedure applies to the Sawant office and the use of email accounts outside of the City network (such as Gmail).

Essentially they are justifying this arrangement as a logical extension of the existing rule that employees are already required to search any personal devices or accounts that they may have used for official business. In practice, that’s a big leap: the city’s IT Security Policy establishes that city employees are expected to use their city-issued equipment and accounts for official business, with a “real world” understanding that occasionally someone will call, text or email them on the wrong device or account, or the employee will accidentally make a mistake:

15.3 City Staff should not store City data on a personal device, storage media or file storage service.
15.4 If City data is inadvertently stored in personal device (including mobile devices), records must observe record retention requirements and be retained for the applicable retention period. Employees should consult the City Records Management Program for retention requirements.
15.5 An employee who uses a personal mobile device for City business is required to follow this policy and to cooperate with the City and provide fullest assistance in fulfilling the City’s duties and obligations under the Public Records Act.
15.6 Employees shall provide all records created, received, or retained within the scope of their employment on a personal mobile device to the department’s PDO in response to a public records request. This includes records required by the Employee’s position/function, records the Employee is directed to have by the City, or records created, received, or retained in furtherance of the City’s interests. Employees may be required to sign an affidavit describing the search process used to identify public records stored on the personal mobile device and stating that all responsive records have been provided to the City.

For those incidental uses of personal devices and accounts, city employees need to search for and return those records as well. Nowhere is it anticipated that employees will forego the city-issued system altogether and circumvent the regular public-records system, and with that assume full responsibility for handling all of the requests for the public records that they create.

The problems with the arrangement for Sawant’s office are substantial. The trust being placed in Sawant and her staff to transparently hand over potentially embarrassing records is significant, as is the faith that they will accurately understand and apply the exceptions to disclosure of public records. Further, they are empowered to permanently delete a message, which is arguably a violation of the Public Records Act. And worse, there is no guarantee that messages will be permanently archived, even after Sawant and her employees eventually leave the employment of the City. In fact, over the time that Sawant has been in office some of her staff have departed, and Adiksson confirmed that the City Clerk’s office has not been given any of their emails to archive:

For mailboxes within the “@seattle.gov” system — accounts of former employees are captured and retained by the Office of the City Clerk. For any email account that is outside of the City network (such as Gmail), records custodians are responsible for capturing and providing emails of departed employees to the Office of the City Clerk for retention. At this time, records of this nature have not been received from the Sawant office for retention.

This is another potential violation of the Public Records Act by Sawant’s office, but it is also a fundamental failure of the legislative branch’s public records system to maintain an archive of public records.

To be clear, Sawant and her staff have been open about this arrangement, despite its dubious nature. And the arrangement pre-dates Gonzalez’s time as Council President. Nevertheless, Gonzalez has allowed it to continue on her watch, and with her full knowledge: she has been the recipient of plenty of emails from Sawant that originated from her gmail account. Before she and Holmes march off to reform the way the Mayor’s Office (mis)manages public records requests, she needs to get her own house in order.

A final note: as a high-volume consumer of the city’s public records system, I have had a chance to interact with dozens of city employees whose job is to handle requests such as mine. With very rare exception, I have found them to be hard-working and dedicated civil servants, committed to the principle of making government records available to the public. They have a difficult job, and I have great respect for them. Nothing written above should be taken as an attempt to impugn their work or intentions in carrying out their jobs. The system they work within is broken; we can acknowledge that it needs to be fixed while also recognizing the efforts of the city employees who do their best to make it work despite its flaws.

UPDATE 5/12: Councilmember Sawant’s office provided the following statement:

“It is not accurate for Mr. Schofield to assert that “Councilmember Sawant and her staff use gmail accounts instead of city-issued email accounts for their official duties.”

Councilmember Sawant and her staff use the seattle.gov address and supplement that with gmail accounts that are 100% public and are not used as personal gmail accounts. The gmail system has additional document management and sharing flexibility that the seattle.gov system is not able to match.

All of the emails and documents generated or received by Councilmember Sawant and her staff, whether seattle.gov or the gmail accounts, are subject to public disclosure and are maintained and preserved in accordance with legal requirements to ensure public access upon proper request. Since taking office in 2014, Councilmember Sawant and her staff have responded to hundreds of requests for disclosure of public information and have openly shared information from all work platforms, including the gmail accounts, and they will continue to do so in accordance with public laws.”

(Nothing in this statement substantially contradicts what SCC Insight reported above: Sawant and her staff use gmail accounts for official business, they manage PDR request responses themselves, and City Clerk staff do not have access to those accounts and do not archive the emails contained therein. Having an elected official’s staff directly handle PDR requests is at the heart of the valid complaint against Mayor Durkan, and it applies equally to Councilmember Sawant.)

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