Watch: Will Ferguson Extend Auto-Deletion Ban on Public Records?

Microsoft Teams Auto-Deletion Policy Suspended

The end of a six-month suspension of a policy that allowed for the auto-deletion of Microsoft Teams or instant messages at Washington state agencies after one week is approaching. This policy, which had been in place for years, raised concerns about the preservation of public records and transparency within government operations.

Microsoft Teams is a cloud-based team collaboration software that enables users to communicate, set up meetings, and share files within a workspace environment. It has become a common tool for internal communication among government employees. However, the auto-deletion feature of the platform has sparked significant debate over its implications for record-keeping and accountability.

In February, Governor Bob Ferguson issued a directive requiring 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. This action was aimed at ensuring that important communications are not lost and can be accessed when needed.

August 17 will mark six months since Ferguson’s directive. The Center Square reached out to the Governor’s Office to inquire if the suspension of the auto-deletion policy would be extended, but no response was received.

George Erb, a retired journalist and educator who serves as secretary for the Washington Coalition for Open Government (WashCOG), discussed the issue with The Center Square. He noted that while there had been hints of the policy's impact over the years, the full scale of it became apparent only recently.

Erb explained, “If you're talking about 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.” These are typically casual conversations such as “Hey, let's go out for lunch. What are you doing for coffee?”

However, Erb pointed out that substantive conversations related to policy and public records requests were also being auto-deleted. “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 taken legal action against the state over the auto-delete policy and is also challenging lawmakers’ use of legislative privilege to refuse to provide public records upon request. The Legislature maintains that certain communications are protected from disclosure, citing Article 2, Section 17 of the Washington State Constitution, which protects members of the legislature from liability for words spoken in debate. However, this provision does not specifically cover public records like emails and texts.

Nixon argues that the intent of the constitutional provision was to protect lawmakers from prosecution for statements made during legislative debates, not to shield all forms of communication. His lawsuit claims that destroying Teams messages after seven days contradicts the Public Records Act.

In a recent interview, Nixon stated, “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 he plans to appeal.

Mike Fancher, president of WashCOG, emphasized that the evolution of communication methods should not alter the public'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 with this sentiment, stating, “There's a sickness in the Washington state public record system right now. 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 added that Ferguson and others were aware years ago that implementing the Teams auto-deletion policy would violate the state’s public records laws. Nixon plans to release newly unredacted memos this week, which show that they were warned about the legal risks associated with the Microsoft 365 office system.

According to Erb, the Washington Supreme Court may take up these lawsuits before the end of the year 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?”