OPA May Have Broken City and State Records Laws By Not Retaining Emails

by Carolyn Bick

The Emerald has discovered that officials within the Office of Police Accountability (OPA) may have broken — indeed may be continuing to break — public records laws by either manually deleting or allowing certain emails to expire before the two-year mark prescribed by City and State records laws. At least one of these emails concerned an item of public interest. State law makes the intentional destruction of these records a felony offense, if any law enforcement agency should choose to investigate.

In response to a public records request, officials with the Seattle Police Department failed to find at least one email that should have been disclosed under State and City transparency laws. Those officials said they conducted a thorough search, including reaching out directly to OPA officials. The record in question regards a proposal for an assessment of the police accountability system that Seattle City Councilmember Lisa Herbold floated last October. (This is an issue the Emerald has been following and will detail further in a forthcoming article.)

If these records do indeed still exist, but officials withheld them, that conduct could also expose officials to criminal liability under Washington State law.

Whatever the case, as with the ongoing case regarding former Mayor Jenny Durkan's text messages, officials can choose to investigate records destruction independent of other potential crimes.

After reviewing the relevant documents and communications regarding the assessment of the police accountability system, Washington Coalition for Open Government (WashCOG) president emeritus and Kirkland City Councilmember Toby Nixon told the Emerald in an interview that he agrees that the OPA appears to have broken public records law by not retaining this information. He also confirmed that these records would appear to fall under item nine in the "Office Management" section of the City of Seattle's records retention laws, which concerns both executive and nonexecutive communications.This section states that, for all departments, such records must be retained for two years after said "communication [is] received or provided."

Additionally, Nixon said that this is also reflected in Washington State records law.

According to SPD public records officers, a thorough search for the records in question returned no matching results. But on Oct. 27, 2021, former OPA Director of Public Affairs and Policy Anne Bettesworth sent an email to a legislative aide regarding Herbold's proposed assessment. The Emerald has obtained the email in question — which came from a different public disclosure request to a different City department — and will return to it in a forthcoming article.

When shown the email, SPD's public records department sent the following message:

"Please be advised that our email retention schedule is for 90 days, so when your request was submitted many, if not all, of the potential emails related to this request were purged." The message from SPD's records department continues with, "Additionally, I reached out directly to OPA who did not have any records specific to this request. I have also confirmed with budget [the City Budget Office] this was not an SPD action item, and they have no records. If you really want, I can reproduce the email you provided and invoice you for that."

The Emerald reached out to the OPA to ask about the agency's records retention practices on Oct. 13, 2022. In an Oct. 17 reply, interim Assistant Director of Operations & Training Katelyn Wieliczkiewicz told the Emerald that "[t]he 90-day email retention policy is determined by the SPD retention policies," and that "[a]s such, OPA also follows the 90-day email policy."

However, when the Emerald attempted to clarify, Wieliczkiewicz gave what appeared to be a contradictory reply.

The Emerald: "When did that start, and what is the reasoning behind the 90-day retention schedule? The manual says [OPA is to follow] City and SPD policy re: record retention, and I am curious as to why OPA opted to follow SPD's."

Wieliczkiewicz: "OPA does follow the 90 day city policy. Please also see the attached documents provided by City Records (including the General Records Retention Schedule), and their answer below."

The answer, which Wieliczkiewicz appears to have forwarded from the City's records retention team, states, "Retention is not 90 days. This is auto-deletion setting. An employee has 90 days to determine if the message is a record or transitory. This email setting is set across all City departments."

Wieliczkiewicz also wrote in an email on Oct. 18 that "[i]n addition to City policy and trainings, OPA follows the Records Manager's recommendations, which are reflected in OPA's Internal Operations and Training Manual, Section 3.5(D)(iii) (included below)."

These state:

iii. Email
OPA staff must follow the City and SPD's guidance on email retention. As a general framework, the City's Records Manager recommends the following:

• (7 yr) Programs_Projects: Use for day-to-day administration of programs or special projects that do not involve investigations.
• (10 yr) Investigations: Use for investigations-related emails and records. The general retention for these types of records is six years after completion, but since investigations may last longer than one year, the seven-year does not adequately ensure the retention will be met.
• (20 yr) Executive Management: Only used by OPA Director for high-level policy and program administration. Records created at that level are often historically valuable, meaning that once the Director has left the City, they need to be transferred for preservation in the Seattle Municipal Archives.

Wieliczkiewicz did not indicate when the OPA began operating on a 90-day retention schedule — and thus did not answer the Emerald's initial question — and also repeatedly directed the Emerald to refer any further records retention questions to the City's records retention team.

According to Wieliczkiewicz herself, OPA employees are trained on City policy, which includes records retention. The Emerald also confirmed with a City communications employee, who preferred to remain anonymous, that City employees are trained to regularly retain records to avoid violating public records laws.

Much like the Seattle Office for Civil Rights (SOCR) or the Seattle Office of Labor Standards (SOLS), despite investigating claims of misconduct, the OPA does not appear to be a law enforcement agency, according to the State's statutory definitions of law enforcement. Unlike SOCR and SOLS, the OPA does not enforce anything. Any disciplinary measures the OPA suggests are just that — suggestions — that the chief of police ultimately decides to enforce (or not). As such, it would not seem as though the OPA should be operating under Washington State's records retention laws for law enforcement, which state that "non-emergency" communications only have to be retained for 90 days.

But defining the agency's status appears to be something of a legal hot potato.

The Emerald asked the Seattle City Attorney's Office (SCAO) whether the OPA is a law enforcement agency, but the SCAO declined to comment, stating that "your question likely constitutes a legal opinion. As such, we are not able to comment at this time."

The Emerald also asked SPD, the OPA, and the mayor's office this same question. SPD responded that the OPA "doesn't conduct criminal investigations, but you may want to put the question to OPA itself to see how they would define their role."

Neither the OPA nor the Office of the Mayor responded to the Emerald.

Therefore, according to the records retention policies Wieliczkiewicz provided, Bettesworth specifically, or officials after Bettesworth's tenure, appear to have broken records retention laws by deleting — or allowing automatic deletion of — emails pertaining to ongoing investigations and issues of interest to the public. It is immediately unclear how many other records that should have been retained per records retention laws have also been manually or automatically deleted within the agency.

"The ability to delete a record is not dependent at all on the physical form of the record. It depends 100% on the content," WashCOG's Nixon said of the State's records laws. However, he said, this particular situation is "challenging, because the public records act does not itself contain a cause of action for records that were deleted before they were requested."

The legal phrase "cause of action" refers to factual elements that enable legal remedy, a form of court enforcement of legal right.

"For records that were illegally deleted under the retention schedule in [RCW 40.14] — you make a request, and they say, 'We can't deliver that record, because it doesn't exist,' that's actually a crime under RCW 40.16," Nixon explained. "And, so, to pursue it, you have to file a criminal complaint and convince a prosecuting attorney to file charges. And that's very difficult to convince them to do that."

In a later email, Nixon pointed to the state laws RCW 40.16.010 and RCW 40.16.020. The former states that anyone who "willfully" destroys, removes, alters, or conceals any public record "is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years, or by a fine of not more than one thousand dollars, or by both."

The latter specifically regards public officials who destroy or tamper with records specific to their office and states that such officials are "guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or by both."

That said, Nixon explained to the Emerald, successful criminal prosecution for illegally deleting public records "has happened," and "there have been a number of public records destruction cases around the state, but usually, they are in conjunction with other charges, like because somebody was trying to cover up corruption." Nixon gave the example of the case in which a former Skamania auditor was found guilty of illegally using public funds for private purposes and of illegal destruction of records.

Of course, Nixon said, it is not always the case that the possibility of criminal prosecution for records destruction is considered in conjunction with other crimes: "We do have the case with [former Mayor Jenny Durkan's] text messages, and the King County prosecutor has said they are investigating that case for potential criminal charges."

State law fails to specify which law enforcement agency has jurisdiction over this kind of crime. In a June article about the ongoing Durkan texts saga, Will Casey at The Stranger pointed out that the State's Public Records Act (PRA) "makes this game of hot potato possible. While the law makes 'willful' destruction of a public record a class C felony, it doesn't explicitly name the office or agency responsible for investigating the person who destroyed the record.

"That might be because this portion of Washington's criminal code hasn't been substantively updated since 1909," the article continues.

Given that Bettesworth was a high-ranking OPA official with years of experience as a City employee — and thus years of experience with records retention policies and practices — and that OPA officials undergo basic records management training, it is equally unclear in this case whether allowing said records to expire would potentially count as willful destruction.

If Bettesworth did in fact retain emails related to this request, as required by law, but officials chose to withhold them, then that would also be illegal. Doing so would constitute the "withholding" portion of the RCW's detailing of the actions that the State considers a records felony.

The Emerald reached out to the City of Seattle's records retention team in the City Clerk's office on Oct. 25 to ask what kind of training City employees receive and whether there are ways to recover records that were deleted or that expired after 90 days in violation of state law.

The City Clerk's office responded, telling the Emerald the following in an Oct. 26 email:

The City Records Management Program (CRMP) provides the following training opportunities for City Employees:

• Basic Records Management (covers the key aspects of records management) — This training was automated in the summer of 2022 to be an online training program automatically assigned to all employees upon hiring. Prior to that time, new employees received records management training during their new employee orientation sessions from a CRMP staff member.
• Supplemental training sessions (Basic Records Management, Email Management, File Structure and Management, and Electronic Records Management) — These trainings are offered regularly by the CRMP and are optional for City Employees.

The Emerald followed up to ask what kind of training was offered before 2022, and what is covered in basic records training. The City Clerk's office told the Emerald in a subsequent email that the basic pre-summer 2022 records management training course for City employees included the "[d]efinition of a public record," "[r]esponsibilities of City employees," "[r]etention policy overview," and "[e]mail management." The same trainings and more have been provided since summer 2022.

The City Clerk's office directed the Emerald to ask the City's information technology (IT) department about recovering records that should not have been deleted or allowed to expire. The IT department responded to tell the Emerald that "[t]he City of Seattle's Microsoft Outlook platform automatically retains all emails for 90 days in an employee's inbox. Emails in the deleted items folders are retained for 14 days. Emails in recoverable files are retained for 14 days.

"City employees are instructed to move emails they'd like to save to preservation folders to extend [the] retention date. It is up to the City employee to save emails based on need and retention requirements," the IT department continued. "If an employee's emails are on hold due to the nature of work or litigation, the emails will be retained until the business need has been fulfilled, or the relevant matter has been resolved in compliance with the applicable state retention schedules and applicable court rules."

The IT department also said that "elected officials, upon beginning their work with the City, also receive specific training on record retention as required by RCW 42.56.150," and that, in addition to the training the City Clerk's office detailed, City of Seattle employees "will be required to take an additional new training specifically on record retention."

The Emerald asked SPD on Oct. 13 about its 90-day retention schedule and asked for clarity regarding the justification for this policy. The Emerald also asked what emails the department considers deletable after 90 days.

SPD's public information department did not directly answer the Emerald's questions, and instead sent a brief email on Oct. 19 that read, "The Seattle Police Department follows retention schedules set by the Washington Secretary of State and City of Seattle." The department attached copies of the City's and State's record retention laws, which, again, seem to run counter to the OPA's stated policies of following City department retention protocol.

The Emerald has filed with the OPA a public records request similar to the request described at the beginning of this story. The scheduled first fulfilment date for this records request is on or around Nov. 21. Because Bettesworth's email was provided to a public records official within SPD in the original public records request, that email has become part of the public record and should be returned to the Emerald in the subsequent request. Depending on the outcome of the request as a whole, the Emerald may either update this story with any new information that becomes available or release another story.

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