Visualization exercise: Picture 88,000 mobile phones owned by more than 700 governments large and small throughout the state, state agencies, counties, cities, universities, schools, ports, tribes and junior taxing districts.
No need to imagine — the numbers are facts, logged in state records. The phones are provided by Verizon, one of the state’s four primary phone contractors.
Next step: Picture the text messages typed on those 88,000 mobile phones — hundreds of thousands of public records — and imagine them disappearing every day, acres of digital media erased and cyber-shredded, in direct violation of state law.
No need to imagine — it’s happening. Fife City Attorney Loren Combs just figured that out, after the city sued Verizon in January.
“Those public records are literally disappearing as we speak,” Combs said in a recent interview. “They’re just dumping the data. The text I sent you on a city phone last week doesn’t exist anymore, which makes no sense.”
The state’s record-keeping watchdogs didn’t know about the Fife lawsuit until they heard about it from The News Tribune, but they swiftly grasped the implications.
Fife, like local and regional governments throughout the state, piggybacks on a boilerplate contract with Verizon used by all levels of government, administered by the state Department of Enterprise Services.
Verizon, according to a company spokesman, takes limited steps to preserve the text message content; under state law, that responsibility stays with the government agency that creates the records.
“The obligation to retain records and comply with (public records) requests regarding employee usage lies with the public agency,” said Verizon spokesman Scott Charlston.
The point: Unless agencies take independent steps to preserve records, the texts on those 88,000 phones are evaporating, in violation of state laws governing records retention. And it’s not clear those 700 agencies are doing much to prevent it.
“I had not heard of this. It’s a big issue,” said Steve Excell, state archivist with the Secretary of State’s Office.
“This is square on a public record — you can’t even try to make the argument that it’s private. No question text messages, like emails, are just like paper records. They’re a public record. We try to keep ahead of it, but it is challenging.”
For Combs, the path to revelation started with a routine matter. On Nov. 6, 2014, a Fife resident filed a public records request.
The resident sought the past four years of text messages from former City Manager Dave Zabell’s mobile phone, bought and paid for by the city.
Fife forwarded the request to Verizon, the phone carrier, and asked for the records. Verizon’s response: get a subpoena.
Combs said the move surprised him. This wasn’t a law enforcement matter tied to a criminal investigation, just a simple records request.
“I was dumbfounded in this case,” he said, “first that they wouldn’t give it to us without having to file a lawsuit to get our own records.”
Combs filed the subpoena: a short lawsuit, nothing more.
Verizon replied. The answer was a shock.
“The records that you requested no longer exist because they are beyond Verizon’s period of retention,” the official reply stated. “Text message content is maintained for 3-5 days from the date of transmission/receipt and requires a court order. There (is) no text message content available for your requested time frame.”
The phone logs, going back one year, were still accessible; it was possible to see that messages had been sent and received, and the to-and-from phone numbers, but the content was gone: four years of communications between the city’s highest-ranking official and whomever he was talking to deleted forever.
“They only keep the messages for a couple of days, and then it’s gone,” Combs said.
Fife dismissed the lawsuit in March. There was nothing to litigate. The city sought the records requested by the citizen and got its answer: an empty set.
Fife’s contract with Verizon is a boilerplate document listed in state records as T12-MST-687.
It’s used by governments at various levels, from Pierce County and the city of Tacoma to Seattle, King County and the University of Washington, among hundreds of other entities. (The state relies on similar contracts AT&T, Sprint and T-Mobile.)
Collectively, the agencies paid more than $27 million to Verizon through the first three quarters of 2014, according to state records.
Under state law, destruction of public records is a crime, a felony. The references appear in RCWs 40.14.010 and 40.14.020.
After researching the issue, Excell, the state archivist, agreed with Verizon’s position: The duty of records retention lies with individual agencies, not the phone carrier.
“The ultimate responsibility lies with the record creator. They cannot pass it on to third parties,” Excell said.
The trouble is, it’s not clear that agencies are taking the necessary steps to preserve the messages. Tacoma, to name one example, has no consistent method to ensure preservation and disclosure of text messages.
The issue surrounding government text messages differs from recent controversies in Pierce County and elsewhere surrounding digital communication on privately owned devices.
The example illustrated by Fife’s lawsuit presents a different set of circumstances. The government agencies own and pay for the phones. Privacy interests, cited in the Lindquist and Vermillion cases, don’t come into play.
“Whatever the strategy is, it’s up to the originating agency that’s managing the electronic records,” Excell said.
Excell added that the state hosts numerous training seminars to drive that point home, but the explosion of phones, tablets and other digital devices creates complexity.
“It’s very uneven out there,” he said. “Some agencies send their people to training. They are on top of it. There are other agencies that say, what, text messages, emails? Those are public records?
“We know there’re agencies that don’t send people to training — when they do they’re shocked.”
Even at the state level, it’s not clear that agencies are taking steps to retain text messages.
Excell mentioned a widely used product called the Vault, used by state agencies to retain records. But it’s only for email, according to a spokesman for the agency that administers it.
“(The Vault) is only related to email. It’s not related to text messages on a telephone,” said David Brummel, communications director for the state Department of Consolidated Technology Services.
Brummel said he assumed the responsibility for preserving text messages rested with the phone carrier.
DIFFERENT RECORDS, DIFFERENT RULES
All public records are not created equal. State law relies on a matrix to decide what needs to be retained and what doesn’t. Some material, related to state laws and archives, is held forever.
Excell gave an example: the websites of ex-Govs. Gary Locke and Christine Gregoire.
In theory, text messages fall into a different category known as transitory records. The designation applies to trivial communications, such as coming home late for dinner.
But the underlying principle holds that the nature of the message, not its format, determines whether a record is transitory. If a text message is about government business, it matters.
For a fresh example, consider State Auditor Troy Kelley, current target of a federal criminal investigation.
On March 5, the U.S. Attorney’s Office served a subpoena on Kelley’s office, seeking various records, including text messages.
An excerpt from the subpoena asked the agency to “produce only requested documents which were emailed or sent via text to or from the Auditor’s Office more than 180 days prior to the receipt of this subpoena.”
In short, federal agents sought old text messages — more than six months old. The Auditor’s Office is one of many agencies linked to the Verizon’s contract. If Verizon’s stated retention policy applies, and the agency took no independent steps to retain records, the texts could be gone.
Toby Nixon, president of the Washington Coalition for Open Government, learned of the text message retention dilemma from The News Tribune. His first reaction was disappointment.
“It’s surprising that the people responsible for archiving of records would not be aware of this situation and acted long ago to correct it — especially with all the controversy in Pierce,” he said.
“You would think that people would have woken up and be paying attention. Here, we’re not even talking about private devices. We’re talking publicly owned or operated devices.
“It’s disappointing that people wouldn’t be paying attention to this and that it would be such a widespread thing.”
After inquiries last week from The News Tribune, Excell, the state archivist, said his office drafted a series of advice sheets for local and state agencies governing records retention, with explicit instructions regarding text messages.
“We are anticipating many questions on Monday,” he said.