We've been telling you, it is rather shocking a couple of weeks ago. On our show, a attorney announced a federal lawsuit against the city of Seattle for giving up parts of Capitol Hill giving up the East Precinct for Chazz Chop. We had two teenagers who were murdered during that time. The mother of one of those victims is now suing the city of Seattle, but shockingly not only have months of Jenny Durkin's text messages, including June of last year vaporized that disappeared. But same is true for June of last year for former police chief Carmen Best Fire chief Harold Scoggins. Toby Nixon is with Washington Coalition for Open government. He's there. President emeritus. He joins us here on the door in months and show Hey, Toby, It's good to talk to you this afternoon, my door E. It's a pleasure. So tell me because he's open records. Laws are so important. For those of us whether it's in the media or private citizens who want to be watchdogs of government. They're so important and so tell me about this violation and how significant you find it today. Well, there are two separate parts of the law. The first is retention that the records have to be kept for certain periods of time. And the second is the disclosure. The disclosure laws, the public records Act. And the key issue here is that the records were not kept as long as the law requires them to be kept, and it's simply Irresponsible to set any kind of records device any device that can contain records to automatically delete them after any period of time. There needs to be control over that. And there was a serious mistake made here well, And that was Johnny Durkin's excuse is Jenny Turkey and six you. She said that her cell phone was set to delete text messages automatically after 30 days. Should she have known better should you have known exactly what the law said? Absolutely all public officials in Washington state are required to receive training. And records, retention and disclosure, and there's really no excuse to not be aware of the fact that based on the content of records, they have to be kept for some period time and There certainly is one category of records called transitory records that only have to be kept as long as they're useful. But the vast majority of records, including All communications by elected officials have to be kept at least two years and in many cases forever. After that, two years, they have to be assessed by the state archives for their historical value. That just didn't happen here. Well, Jenny Durkin says she doesn't know who sent her phone to auto delete after 30 days. Is that a reasonable excuse? If she just says somebody else set my phone? I have no idea what's happening. Well, I would say that it's Every individual's responsibility who is a creator or custodian of records to ensure that the right thing is happening, especially when it's the mayor who is the chief executive of the city who oversees everybody in the city to make sure that the records they're being retained for as long as the law requires. Apparently, there are lots of other public officials is there mentioned Carmen Best chief Scoggins, all their text messages from June of 2020. When we were at the peak of Chazz chop, they have all disappeared. Which leads a lot of us, Toby to think that there's some conspiracy going on. You've been dealing with this for a long time You have been at the at the Vanguard. Of making sure we have open records for a politician. So what's your reaction just from either personal or professional level? When we hear about all these top officials who were the primary decision makers in giving up these precinct, giving up Chad's job? What's your reaction when you hear that all of their text messages? Are gone from June of 2020. It is absolutely very suspicious story. Um it's one thing for one senior official. The same iPhone was accidentally set wrong, but for All of the ones who were involved in these critical decision making process is to somehow say all all my messages were accidentally lost. That stinks to high heaven. Jenny Durkin says she has some digital forensic people trying to recover the messages she is telling us now. That she's happy and eager for those messages to be recovered. Should shouldn't they be able to whoever wants tax them whether that's the the attorneys who are filing a lawsuit against city can't they just go to the phone company? Aren't they stored on some server with all these cellular providers? That is correct, I I'm on Verizon, for example, and I can go to v tex dot com. And see all my text messages, however, once they're deleted on the phone there also deleted on the server, so it's like the server. Is a backup for messages that have not yet been deleted. So for example, if you lose your phone You can restore the messages that had not been deleted. Uh, but I'm not sure if there's any permanent archives kept on those servers. Ah, lot of agencies use third party software that Daily goes up to those wireless carrier servers and downloads all the messages and stores them separately, and the state archives advises agencies to do that. No. Jenny Durkin is telling us that she hopes the recovered because we're not gonna find any smoking gun. What if we do? I mean, if if they do somehow recover them or if they never recover them. What is the punishment for public officials violating the law like this? So it depends on which portion of the law for the records retention law, it's to knowingly willfully intentionally delete records. Eyes a felony. Depending on the nature of the records. It can be a Class B or Class C felony on D You can also be found guilty of failing to perform a duty imposed upon a public official. That's a Mr Meter. You could be subject to recall on the basis of this. Obeying those laws. Um, in terms of the public records Act that disclosure part of it. There are two individual penalties for those, the agency can have to pay a penalty of up to $100 per record per day. On. Unfortunately, that means the taxpayers are paying that penalty, not the individual officials, but for destroying records before the law allows them to be destroyed. There are individual criminal penalties for that. Well, if my memory serves correct, Toby I think a Class B felony has penalties up to 10 years in prison. A classy up to five years in prison. Is there any chance Is there any chance At the Seattle mayor, the former police chief, the fire chief, if it is determined that they willfully deleted these messages to keep things from the public, is there any chance they'd go to prison for this? It's small, and the reason is that you have to convince a prosecutor Do you actually file those charges and pursue them and Would Pete Holmes or dance? Satur Berg really do that? I have my doubts where we've seen this law used in Washington in the past, and this is why I think there is some chance of it. Is, if it can be shown that the official was having records destroyed, you know, directing their staff to destroy the records or destroying them themselves. In order to cover up Personal wrongdoing. That is when prosecutors around the state have used this law in the past. Yeah. Could Holmes there Satur Bird be convinced to do that? I don't know. Well, I mean, come on. We're a one party state. They all give protection rackets to each other all the way to Bob Ferguson. But the ages office there's no way that they would ever try to put Jenny Durkin in prison. It's just and that's what's so frustrating to me told me that you know, all of us are expected to obey the law, all of us face punishment. But man there is so much cronyism and protection rackets that are going on with things like this. I you know, I agree with your initial reaction. There's no way the dance Saturday, Berg Or or Pete Holmes would do that. The only way it could happen or with Bob Ferguson as well is if the public rose up kind of the way the public rose up and demanded that Governor Isley Vito The Legislature's exempting itself from the public records law, right if if there was enough political pressure from the general public put on these prosecutors To take the right action to do the right thing and if they were thinking ahead to their political futures Then maybe they could be persuaded. So what you're saying is it's up to me to rile up the public on this. You're very good at that. Dorie Toby. It's really great talking with you Appreciate your time this afternoon. You're welcome. Thanks. All right. Toby Dixson is the president emeritus of the Washington Coalition.