City of Seattle countersues newspaper in public records case

SEATTLE (AP) — Lawyers for the city of Seattle are denying that it broke the state’s public records law after the mayor’s text messages were missing from a time that included large protests in the city following George Floyd’s murder.

And the city is countersuing The Seattle Times in response to a lawsuit alleging the city mishandled reporters’ requests for top officials’ text messages during that tumultuous period last summer.

The Seattle Times reports that in a 25-page formal answer filed Friday to the newspaper’s lawsuit, started in June, the city denied most legal contentions, including claims directly based on a city ethics investigation into a whistleblower’s complaint that found Mayor Jenny Durkan’s office violated the public disclosure law after discovering the mayor’s texts were missing for a 10-month period.

Under state law and guidelines, local elected officials’ texts and other communications about public business must be kept for at least two years before being transferred to the state archives.

Although it concedes the mayor’s texts are lost, the city’s response, filed in King County Superior Court, includes a counterclaim against the newspaper and seeks a legal judgment that it “complied with all relevant provisions of the Public Records Act.”

Katherine George, the newspaper’s lawyer, said the city’s countersuit is highly unusual.

“Governments ordinarily don’t file countersuits against public records requesters who are trying to enforce the public’s right to know,” she said in an email.

Dan Nolte, a spokesman for City Attorney Pete Holmes, said Monday he wasn’t able to expound on the city’s legal strategy, adding, “We look forward to further responding to these claims as the litigation progresses.”

The counterclaim seeks to recover the city’s legal costs, expenses and private attorneys’ fees. Nolte said Monday the city has agreed to pay Pacifica Law Group, a private Seattle firm contracted to handle the matter, an amount “not to exceed $75,000 in legal services without prior approval.”

Seattle Times Executive Editor Michele Matassa Flores said Durkan “already acknowledged the city ‘fell short’ of the state’s public-records law — after the city’s own ethics commission and Durkan’s own independent review reached that conclusion.

“Given that, we’re extremely surprised and disappointed at the extent of denial shown in this countersuit,” Matassa Flores said. “What will it take for the mayor and her staff to give more than lip service to transparency and the importance of independent journalism?”

The newspaper filed its lawsuit in June, about a month after a Seattle Ethics and Elections Commission investigation report revealed that Durkan’s texts from late August 2019 to late June 2020 had not been retained.

Triggered by a whistleblower complaint made by one public records officer, Stacy Irwin, and supported by another, Kimberly Ferreiro, the investigation determined the mayor’s legal counsel, Michelle Chen, engaged in “improper governmental action” and broke the records law when she decided to exclude Durkan’s missing texts from certain requests.