WA House lawmakers get OK to auto-delete records after 30 days

OLYMPIA – A new policy issued last week allows lawmakers in the state House to auto-delete records within 30 days, reversing a move made amid a lawsuit that alleged legislators were illegally excluding themselves from the state Public Records Act.

An email provided to the Seattle Times notified Democrats and Republicans a week before the change took place on July 30, and provides guidelines that most emails can be deleted “immediately.” A small subset must be kept longer.

Under the directive, only prime sponsors of legislation are required to retain emails sent to or from their office regarding those bills. If a member is not the main sponsor, those emails are considered transitory and therefore can be “deleted as soon as the member no longer needs or wants them.”

The policy changes mean that communications about legislation – including emails among lawmakers and from lobbyists – could be gone for good, reducing the public and the media’s ability to see how laws are made.

It allows lawmakers and aides to move emails into folders that can be set to auto-delete after 30 days, provided the lawmaker is not the prime sponsor of a bill in question.

“If the primary sponsor was all it took to get legislation passed, then I guess their communications would be the only important ones. But they’re not,” said Joan Mell, attorney for the Washington Coalition for Open Government, which has sued the Legislature for allegedly violating public record laws.

“Bills get amended, and those amendments mean something, and they come from somewhere, and they’re intended to do something for somebody.”

The change sets a different, much shorter standard for legislators than for the rest of state government. Washington administrative rules note that because retention laws vary for different types of records, state agencies “are prohibited from automatically deleting all emails after a short period of time (such as thirty days).”

“Indiscriminate automatic deletion of all emails or other public records after a short period no matter what their content may prevent an agency from complying with its retention duties and could complicate performance of its duties under the Public Records Act,” according to state law.

The policy change implemented Wednesday is part of a larger fight over Washington lawmakers’ efforts to exempt themselves from the state’s public records laws.

The Associated Press, the Seattle Times and other news outlets in Washington sued the Legislature in 2017 for withholding important records from the public, a case the outlets won at the trial and state Supreme Court. In 2018, as the lawsuit was ongoing, lawmakers fast-tracked and passed an exemption for themselves. Then-Gov. Jay Inslee later vetoed the bill after wide public outcry.

During litigation in the AP lawsuit, the ability for members to delete messages was suspended, as was the automatic deletion of emails after 30 days. When the lawsuit ended in favor of the news outlets, emails in deleted folders were then reviewed, according to the letter from the House public records office to lawmakers Wednesday.

Members were required to take training on records-retention policies before they could regain their ability to delete their own emails. Although they were able to delete messages from certain folders, the automatic-deletion feature was not re-instituted until now.

That created a backlog issue and “conflicts with the principles of proper record management and retention,” the letter said.

House Chief Clerk Bernard Dean told the Seattle Times that all lawmakers and their staff members receive training on what to retain, with occasional refresher courses.

“However, it is up to each member office to manage their emails and determine (based on the content) how long the messages need to be retained and whether they wish to retain them for a longer period than required,” Dean said.

The House declined to share training materials and instead directed the news outlet to file a request under the state Public Records Act, which was first approved by voters in 1972.

Secretary of the Senate Sarah Bannister said the Senate hasn’t proposed reinstating the auto-deletion feature, but said it is seeing “growing concerns related to email storage capacity and the management of outdated records.”

Although the Senate is not “currently pursuing” an auto-delete policy, Bannister said staff “encourage regular cleanup of non-archival and transitory messages.”

In addition to the lawsuit by the news outlets, the Legislature was also sued by public records advocate Arthur West for asserting “legislative privilege” to withhold documents from the public. The lawsuit, filed in 2023 and currently on appeal, was joined by the Washington Coalition for Open Government and government transparency advocate Jamie Nixon. Reporting by McClatchy and Cascade PBS found that lawmakers had long sought the exemption before quietly beginning to use it.

Separately, state agencies, including the governor’s office, are fighting their own legal battle over automatically deleting work-related messages in Microsoft Teams, a communication platform widely used by state government, after seven days without regard to content. Nixon, a former state government staffer, is the plaintiff in that lawsuit as well.

In a 2021 memo, which was shared with The Times by Nixon, the attorney general’s office – then under the direction of current Gov. Bob Ferguson – expressed concern that the seven-day retention policy left agencies unable to search and locate Teams records in response to public records requests.

Brionna Aho, communications director for Ferguson’s office, said the governor was “unable to comment on advice provided by the Attorney General’s Office during his time there.” Aho said the governor’s office will have more to say about the future of Teams chats after a review of the issue is complete in August.

Earlier this year, Ferguson suspended the auto-deletion policy in Teams for six months after the state settled a public records lawsuit for $225,000 regarding the practice. The automatic deletion of Teams without oversight has likely led to the destruction of potentially thousands of public records over several years.