By Erica C. Barnett

The King County Prosecutor’s Office announced yesterday that they will not pursue criminal charges against former mayor Jenny Durkan, former police chief Carmen Best, and other city officials who deleted thousands text messages during the 2020 protests against police violence. Officials from the prosecutor’s office said yesterday that they were unable to prove “beyond a reasonable doubt” that the officials intentionally deleted the messages with the intent of destroying public information.

“There’s no evidence that the involved individuals intended to permanently delete anything,” mainstream criminal division chief Dan Clark said. “And for most of the individuals, they were actually trying to recover access to their phones, when the deletions occurred.”

Six of the 27 records requests that involved texts that were deleted from the phones of Durkan, Best, and other city officials were filed by PubliCola—the most from any individual news organization. In these requests, we asked for communications about the use of encrypted messaging systems, demonstrations by Black Lives Matter activists, the decision to use tear gas, flash grenades, and other weapons during the 2020 protests, and meetings between Durkan and community groups, among other issues we were covering at the time. PubliCola frequently relies on records requests for internal information from city officials, so the destruction of these messages harmed our ability to provide newsworthy information to the public.

In a civil case against the city filed by businesses in the vicinity of the 2020 protests, US District Judge Thomas Zilly said Durkan’s “various reasons for deleting her text messages strain credibility.” The city settled that case in February. Clark noted that the burden of proof for a criminal case is higher than the standard for that civil case, which requires only a “preponderance of the evidence” deo show that officials intentionally deleted text messages with the intent of destroying public information.

The investigation, conducted by King County Sheriff’s Office detective Joseph Gagliardi, included a review of thousands of pages of depositions with Durkan, Best, Fire Chief Harold Scoggins, and other city officials, all taken during previous lawsuits against the city. The investigators did not interview any of the individuals who destroyed city records during this investigation, relying on existing documents, including forensic analysis of city-issued phones.

In his investigation, Gagliardi described two types of situations in which text messages were destroyed. The first, more common, type involved officials getting locked out of their phones, either temporarily or permanently, because they forgot their passwords or through other mishaps. In these cases, according to Gagliardi, the officials lost their messages either after doing a “hard reset” that deleted all their information, or because they, or some other unidentified person, changed the settings on their phone in a way that led to mass deletions.

The investigation concluded that Chief Scoggins, SPD Captain Eric Greening, SPD Chief Strategy Officer Chris Fisher, Seattle Emergency Operations Center coordinator Ken Neafcy, and Seattle Public Utilities manager Idris Beauregard all got locked out of their phones because of errors related to their passwords, usually because they made too many password attempts and their phones automatically reverted to factory settings. Fisher, for example, “stated that he’s had to reset his work phone multiple times, because the passcodes have to be changed frequently and he’s very bad at remembering them.”

Scoggins testified that he took his phone to the Apple Store after city IT employees couldn’t get it to work again, and store employees performed a hard reset, deleting all his data.

The investigation notes that city phones require employees to reset their passwords every 90 days, which Gagliardi said contributed to officials’ tendency to forget their passwords. In response to a question from PubliCola about text retention, Gagliardi quipped, “I would also argue with the expectation that these people know how phones work.”

Durkan said in earlier depositions that she dropped her phone in a puddle on the beach, dried it out in a bag of rice, and then restored all her messages from an iCloud account. City officials, in general, are not supposed to save things to cloud servers because of security concerns, so this was actually a violation of a separate city records policy.

Later, someone changed her settings from “keep messages: Forever” to “keep messages: 30 days,” which was “the single factor that caused the destruction of all of Mayor DURKAN’s text messages sent or received between 10/30/2019 and 6/24/2020,” according to the investigation. Durkan denied changing this setting, as did her longtime friend and assistant, Colleen O’Reilly Bernier.

However, the investigation noted that Bernier made a number of “demonstrably false” statements during her deposition—falsely claiming, for example, that she didn’t handle Durkan’s phone after it was damaged on the beach, when she actually made changes to the phone’s settings with the help of a city IT employee. This suggests, according to the investigation that Bernier may have changed the setting, resulting in the destruction of thousands of messages; however, Gagliardi wrote in his investigation notes that there was no way to prove this beyond a reasonable doubt.

In Best’s case, the investigation found that she, as well as other city employees, had a “reasonable belief” that her text messages were being backed up somewhere, based on the fact that city emails go to a central server even if people delete them on their city devices.

“We don’t have any evidence to suggest that to the contrary, that she believed anything else,” Clark, from the prosecutor’s office, said. “There’s no smoking gun, if you will—there’s no admission by her of, you know, ‘Hey, everybody, let’s get together and delete all of our text messages’ or anything of that nature to call into question her reasonable but mistaken belief.'”

Even if Best hadn’t believed the city was backing up her text messages on a server somewhere, the investigation found, the overwhelming majority of her messages were “transitory” in nature, meaning they didn’t deal with substantive policy decisions and were of “short-term, temporary informational use.”

“They’ve basically encouraged the deletion of transitory messages almost immediately,” Gagliardi said yesterday. “They said there’s no reason to keep those messages at all. They have left the termination of whether or not a message is transitory up to their employee.”

Example messages from the investigation, however, included a number of texts that are similar to texts reporters receive routinely in response to city of Seattle records requests, suggesting that this “transitory” standard is applied inconsistently. Additionally, the texts included information that could be of interest to the general public, including messages sent during the protests about immediate strategies and tactics, such as movement of police from one place to another. According to the investigation, these messages were exempt from rules against deletion because the information in these texts “was subsequently documented in official Seattle Police incident reports and after-action reviews.”

Ultimately, Best deleted almost every text in her phone manually, later justifying the deletions by saying all the messages were “transitory.” Similarly, Durkan “stated that she avoided using text messaging for policy decisions, stating that due to the pandemic and then the protests, she was having cabinet meetings almost every day and that most of her communications were in person. She specifically stated that “the practice would be to not communicate things of substance by text.”

As for the “reasonable belief” that all text messages are stored in a server somewhere, Gagliardi noted that most of the officials named in the investigation were not particularly tech-savvy and wouldn’t realize, for example, that text messages in general don’t automatically go to a separate server once they’re deleted. When you delete messages from your personal phone, your cell-phone provider does not pay for a server to save them for you; unless you save them to a separate server or cloud service, they’re just gone.

When PubliCola asked Gagliardi if it was possible for any city official to save their text messages after deleting them, he laughed and responded, “Yes and no.” Jennifer Winkler, the city’s longtime records manager, told investigators that employees could theoretically ask to have their messages saved on a secure server. However, “they have not identified such a secure server to save those text messages. Essentially, the city of Seattle established the policy and not the practice.” This means that unless the city changes its policy, it will continue to be up to individual employees, all the way up to the mayor of Seattle, to decide whether their messages or worth saving or to delete them permanently.