Public agencies’ documents have moved to the chat. The law should, too

Washington’s attorney general’s office does more than defend state agencies in court. It writes the model rules agencies use to comply with the Public Records Act, trains officials, advises agencies and presents itself as a guide for open government. A model rule is credible only if the office that writes it is willing to model it. The attorney general’s model Public Records Act rules say record retention schedules vary based on the content of the record. They warn that agencies may not automatically delete all emails after a short period because different records require different retention periods. The same rule says indiscriminate, automatic deletion of emails or other public records can prevent compliance with retention duties and complicate performance under the Public Records Act. Despite that guidance, Washington’s executive branch allowed Microsoft Teams chats to be automatically deleted after seven days. I challenged that practice because public records do not stop being public records when typed into a chat box. The courts did not bless seven-day deletion; they ruled that my lawsuit was not the proper vehicle to decide the issue, leaving the policy question for public officials who can still fix it. Gov. Bob Ferguson suspended Teams auto-deletion while his administration reviewed the practice. The suspension should become permanent, and Attorney General Nick Brown should update the model rules to say content-blind auto-deletion of public record communications is incompatible with content-based retention. The attorney general’s office already knew the risk. In 2021, it warned the Department of Ecology that Microsoft Teams could store records in multiple locations, some not readily searchable. The same memo warned that ineffective litigation holds could increase the risk of destroying records responsive to public records requests or litigation. It also identified complications with Teams attachments, mobile-device copies and search limitations. Then, when the statewide deletion system was challenged, the state kept auto-deleting and the attorney general’s office defended the practice. That contradiction should trouble anyone who cares about open government. The office that tells agencies not to destroy public records indiscriminately defended a system that treated an entire channel of government communication as temporary by default. The office that writes the model rules now has another chance to align its rules, litigation posture and internal practices. Its own records make the problem sharper. Records I obtained from the attorney general’s office show its Jabber guidance told employees that Jabber communications auto-delete when a computer restarts or shuts down. The same guidance told employees to clean out a local “MyJabberFile” folder weekly and said those records should not be kept longer than 30 days. Other records, produced months after Teams auto-deletion was suspended, show AGO employees were still using Jabber for work-related communications, including discussions of briefs, pleadings, deadlines and case matters. Recent Seattle Times reporting on the Department of Licensing shows why this matters. DOL hearing examiners used Teams to discuss petitioners, attorneys, hearing strategy and proposed order language. That chat survived because the auto-deletion policy was suspended before the seven-day clock ran out. After embarrassing records surfaced, DOL officials discussed whether their office could get another “transitory method of communication like Jabber.” When disclosure exposes a problem, the solution is better conduct, not a more disposable communication system. Public records officers should not be treated as pests for producing records the public has a right to see. Requesters and journalists should not have to rely on lucky timing to learn how public power is exercised. Agencies should not conduct substantive public business in systems designed to erase evidence before the public can ask for it. Attorney General Brown has said transparency will be a foundation of his time in office. Good. Now the office he leads should prove it. The attorney general’s office has proposed updates to the model rules and held a public hearing. This is the moment to address the central technology lesson: Public business has moved into chats, and accountability must follow it there. The fix is straightforward. Agencies should not use auto-deleting communication systems for public business unless they can preserve records according to content, stop destruction when requests or litigation require preservation, search likely locations, export records with timestamps and metadata, and train employees that chat messages are public records. Transparency cannot depend on whether someone remembered to take a screenshot before the timer ran out. The AG’s office writes model rules for other agencies to follow. It should also be the clearest model of those rules in practice. If the state’s chief legal office will not model its own model rules, those rules lose the credibility open government depends on. The opinions expressed in reader comments are those of the author only and do not reflect the opinions of The Seattle Times.

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