WATCH: Will Ferguson extend ban on auto-deletion of public records?

(The Center Square) – The end of a six-month suspension of a policy that for years allowed for the auto-deletion of Microsoft Teams or instant messages at Washington state agencies after one week is approaching.

Microsoft Teams is a cloud-based team collaboration software that allows users to communicate, set up meetings, and share files within a workspace environment, typically via email.

In February, as reported by The Seattle Times, Gov. Bob Ferguson ordered state government agencies to retain all instant message conversations, following a $225,000 settlement against the Department of Children, Youth & Families for the destruction of public records.

Aug. 17 will mark six months since Ferguson’s directive.

The Center Square contacted the Governor’s Office to ask whether he would extend the suspension of the auto-deletion policy, but did not receive a response.

George Erb is a retired journalist and educator who is secretary for the Washington Coalition for Open Government. He spoke with The Center Square about this issue.

“This whole notion that the state government was using Microsoft Teams so that employees could talk to each other and then setting an auto-deletion; we were getting like bits and pieces of this for months, even years,” Erb said. “But the full scale of it wasn't really apparent. It was really last year that we realized how extensive this was.”

He added, “If you're talking like a record number of destroyed records, this is probably it.”

In his February directive, Ferguson preserved the right for agency employees to continue auto-deletion of “transitory messages.”

“WashCOG recognizes the difference between transitory, nonsignificant talk: ‘Hey, let's go out for lunch. What are you doing for coffee?’ We get that,” Erb said. “But then there are all these other conversations that are substantive and have to do with policy and have to do with handling public records requests. And they were all part of the vast messages that were going into basically the auto-deletion bin, and they were wiped out.”

Open-government advocate Jamie Nixon has sued the state over the auto-delete policy and is also suing over lawmakers’ use of legislative privilege to refuse to provide public records upon request.

The Legislature maintains that certain communications are protected from disclosure.

Some lawmakers point to Article 2, Section 17 of the Washington State Constitution, which says that “no member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” However, it does not specifically mention public records, such as emails and texts, held by legislators.

Erb and Nixon contend that provision was intended to protect lawmakers from prosecution for things they said during legislative debate, not protecting all communications, including emails and text messages.

Nixon’s lawsuit says destroying Teams messages after seven days contradicts the Public Records Act.

In a Monday interview with The Center Square, Nixon said the current law says that “if somebody destroys something before you request it, you don't have any standing to do anything about it. And that's exactly what the attorney general is arguing in court right now with me.”

A judge in Thurston County has already rejected that part of Nixon’s legal challenge, which Nixon said will be appealed.

WashCOG President Mike Fancher said the evolution of communication methods does not change the people's right to know what their government is doing.

"A chat feature is no different than email and can be used to direct, plan and influence government decisions,” he said. “There is no reason it should be an exception to the Public Records Act.”

Nixon agrees.

“There's a sickness in the Washington state public record system right now,” he said. “And unfortunately, they're incentivizing the immediate destruction of every record. If you destroy it all before anybody asks for it, they're saying that the court and no individual will have any standing to do anything against you for it.”

He said Ferguson and others knew years ago that implementing the Teams auto-deletion policy would put them in violation of the state’s public records laws.

“I'm going to release newly unredacted memos this week on that, and it shows that they were told this is a massive legal risk that this product, this MS-365 office system, does not come out of the box with the ability to comply with Washington state's public records retention laws,” said Nixon, referring to Microsoft 365.

According to Erb, the Washington Supreme Court could take up these lawsuits before the year's end, or early in 2026.

“If we lose this case and the state Supreme Court basically says, ‘Yeah, there really is a privilege to withhold records,’ our concern is it would basically blow a huge hole through transparency laws in Washington state,” he explained. “The internal deliberations of the Legislature, they could withhold it, but it's not going to stop there. I mean, any other legislative body in the state is going to look at the state Legislature and say, ‘If they get that privilege, why don't we have it?’ Every city council, every county commission, every library board, fire district, you know, you name it … where does it end?”