Regarding Bellingham Police Department officers using text messages to conduct agency business / Letter to Bellingham Mayor Seth Fleetwood

The images above display screenshots from Bellingham Police Department Lieutenant Claudia Murphy’s body cam video recordings in late 2021 related to her work enforcing City of Bellingham parking code for recreational vehicles

August 4, 2022 Dena Jensen

There is an August 1, 2022 post here on Noisy Waters Northwest related to the subject of this email sent today to City of Bellingham Mayor Seth Fleetwood. As of the time of that post, I had not yet received a response from the Mayor or Bellingham City Council President Hannah Stone regarding questions I had about Bellingham Police Department officers being advised, back in January of 2021, to delete their text messages weekly. Here is the link to that post: https://noisywatersnw.com/2022/08/01/waiting-for-answers-regarding-bellingham-police-department-texting-practices-noisy-waters-northwest/

Later that evening I did receive a response to my email that came from the Mayor’s Office, signed by Brooksana Raney, who is the executive assistant to Mayor Fleetwood. She said she had consulted with legal staff and provided me with some information about City policy regarding City of Bellingham employees being advised not to use text or instant messages to conduct City business as it related to the City practice not to archive text messages.

This all continues to seem problematic to me because I have viewed video recordings showing City employees apparently using text messages to conduct City business. Therefore I sent the following email to Mayor Fleetwood. Readers should find a good amount of details regarding the situation in this email and the attached email chain:

Sent: Thursday, August 4, 2022, 05:32:11 PM PDT

Subject: Regarding Bellingham Police Department officers using text messages to conduct agency business

Dear Mayor Fleetwood:

I am appreciative of the August 2, 2022, 08:37:06 AM email I received from Brooksana Raney in your office. Her email was responsive to my June 16, 2022, 06:48:15 PM email to you and Bellingham City Council President Hannah Stone – and my subsequent follow up emails – seeking answers to two questions I had that were related to Bellingham Police Department officers being advised in an email sent on January 15, 2021 by BPD Deputy Chief Grunhurd to delete their text messages weekly. 

The information your office shared with me was helpful, in that I gained a better understanding of how City legal counsel is viewing this issue, and records retention regarding texting in general. The information in the letter provided me details I could use to do some further research. I want to share some of the information I was able to find and put together.

First though, I want to state that I am led to assume from the content of Ms. Raney’s email, which indicated that the tips related to BPD officers deleting text messages weekly “appear consistent with City policy and applicable records retention schedules,”  that this means that your office has not taken any action to express concern about those tips shared by Deputy Chief Grunhurd to the department. And I assume there has been no concern expressed by your office to BPD that the tips about deleting records were issued a couple of weeks preceding the January 28, 2022 sweep of Camp 210.

I find that your office’s August 2 email fails to address something that is a primary concern of mine. The early part of that email pointed out that ” the Local Government Common Records Retention Schedule states that records communicating ‘basic/routine short-term information’ have no retention value.” However, my concern is regarding text messages that do, in fact, document an agency decision or action, are used as the basis of an agency decision or action, and may be covered by a more specific records series, which is material the Washington Secretary of State does consider public records and offers retention schedules for those records

I understand from the email and the attached “City Policies and Procedures – Using Information Technology Resources” which Ms. Raney sent me, that “employees are instructed not to use instant messaging or text messaging for communications that have retention value.” The problem is that City employees apparently do use text messaging for communications that have retention value. 

To me, especially for City employees conducting business out in the field where they are managing and coordinating information related to their agency actions on site – when they are moving around the City enforcing parking code, for example – it seems unrealistic for the City of Bellingham to expect that they would not use text messaging or other forms of instant messaging to do so. It seems like there must be times when communicating by phone calls or emails alone is not responsive enough for an immediate need in the field. 

Meanwhile, should City Bellingham Police officers, even occasionally, resort to using text messages to conduct business, and additionally follow Deputy Chief Grunhurd’s tips to delete texts weekly, then it’s challenging for anyone to know if they are conducting business using text messages against City policy instructions. And while it can be determined in some cases with significant effort and/or by luck, officials and members of the public may never know the extent and full content of those messages if they are not retained.

In some public records I received from the City of Bellingham consisting of body cam recordings of BPD Lt. Claudia Murphy’s field work related to enforcing parking code for recreational vehicles, I have been able to view numerous instances where Lt. Murphy uses her text application on her iPhone to apparently communicate with either fellow BPD officers, or City Code Enforcement officers related to conducting parking enforcement or other police department-related work. I am attaching some screenshot examples of this that are taken from those recordings.

Additionally, I am including here my notes taken on one of those videos related to a segment of the recording where Lt. Murphy is texting a fellow officer about a community member she is seeking to have wait with her for this fellow officer to arrive, should it turn out this person is someone with whom the fellow officer has expressed they want to speak:

[Identifying information related to the body cam recording that appeared in this email has been removed for the public posting of this email]

(Time on Lt. Murphy’s phone, at one point, displays as being 14:42)

When one person on a bicycle who has been talking to Lt. Murphy departs after being told they can leave, the Lieutenant tells the other person, who is on foot, that one of her pals wants to talk with them. Lt. Murphy says she thinks their pal has a couple questions to ask them. The person asks, “for what?”  Lt. Murphy says she doesn’t know and that she will check where the person is who wants to talk with them. She gets her phone out, which is visible in the video. The person says they need to go. 

Lt. Murphy briefly opens a text screen but then brings up an image view (in a camera app) which moves between being focused on the legs and feet of the person who is with Lt. Murphy, and raising up to show the full body of the person. A Bellingham Code Enforcement officer, who appears in the video at this point, seeks to engage with the person, which distracts the person from continuing to express that they want to leave.  During this time, it can be seen that Lt. Murphy’s phone goes back to a texting mode and Lt. Murphy enters text. None of the texts displayed reflect that Lt. Murphy is seeking to find out the location of the officer she is texting.

Lt. Murphy brings the phone back to an image view that takes in the full image of the person who she is encouraging to stay with her. After working with the camera and image, the screen shows that 1 photo is selected and a photograph of the person shows up on her texting screen. She announces that she is texting him (the pal she referred to) now. Lt. Murphy does not inform the person that they are being photographed. (She had, however, announced at the beginning of the body cam recording to both people she was talking to that they were being audio/visually recorded.)

Lt. Murphy says the person she is texting should be not far away and the Code Enforcement officer who is present continues to engage with the person. Lt. Murphy’s phone shows she had received a text indicating the officer she is texting was pretty sure the person was not the person they wanted to see. Lt. Murphy texts the fellow officer again, asking if they are good if she lets the person go. Lt. Murphy continues to engage with the person who is on foot and although her phone screen is still visible, the content on the screen is not.  Lt. Murphy then tells the person, “Alright, my partner said you can go.” The person walks away and Lt. Murphy’s phone screen is no longer visible as she, and the Code Enforcement officer who is with her, walk down the street.

My intent with sharing these notes is to help give an example of Lt. Murphy, along with the officer participating with her in the texts, apparently using texting to conduct business that involved interaction with a community member, which could potentially have bearing on a case at some later time. It is not to say, though, that there was something that I am yet aware of that was illicit about what she was doing. But she was apparently using text messages to conduct police department agency business, while the City policy you have provided me with says that City of Bellingham employees are instructed not to use text messages to do so.

A few of the screenshots I am attaching are related to my body cam notes which I shared in this email. The additional screenshots I am attaching, while less intricate in context, do also appear to demonstrate documentation of Lt. Murphy and City Code Enforcement officers using text messaging to conduct business that is related to enforcing City of Bellingham parking code.

Also, I am including here some specific references from the Washinton Secretary of State’s website related to a couple of key factors regarding retaining text messages, and the length of retention period for records for the enforcement of a local government’s code. 

As I mentioned in my June 16, 2022 email, the bipartisan organization, Washington Coalition for Open Government expressed alarm in June over Seattle officials’ mass deletions of text messages related to the 2020 racial-justice protests. And it was announced a couple of weeks ago that a criminal probe had been opened into the deletion of U.S. Secret Service Jan. 6, 2021 text messages. These examples of the importance of text messages being retained as public records, along with our state’s Secretary of State office’s emphasis on the value of retaining text messages related to conducting government agency work, reinforce to me that if the City of Bellingham does value transparency and the broader goals of promoting open, accessible government, then you, as Mayor, as well as your legal staff and the City Council should be pursuing policies that require the retention of appropriate types of text messages as public records in compliance with Secretary of State retention schedules, especially by City employees who conduct work on the go, such as BPD officers, Fire and EMS officers, Code Enforcement officers, Public Works employees, etc.

Sincerely, 

Dena Jensen

Birch Bay, WA

On Tuesday, August 2, 2022, 08:37:06 AM PDT, MY – mayorsoffice@cob.org <mayorsoffice@cob.org> wrote:

Thank you Council President Stone for noting my missing attachment.  It is attached to this message.

Brooksana Raney

Executive Assistant to Mayor Fleetwood

City of Bellingham

360-778-8100

mayorsoffice@cob.org

From: Stone, Hannah E. <hestone@cob.org>
Sent: Monday, August 1, 2022 6:30 PM
To: MY – mayorsoffice@cob.org <mayorsoffice@cob.org>; dbobena@yahoo.com
Subject: Re: Second follow up RE: Questions related to BPD officers being advised to delete texts weekly

Good evening, Dena.

It appears that the referenced City policy was not attached to the earlier message as indicated. I have followed up with Brooksana to request a copy of the policy.

Best regards,

Hannah

– – –

Hannah E. Stone

Council President

Bellingham City Council

Ward 1 Representative

City Hall

210 Lottie St.

Bellingham, WA 98225

Phone: (360) 778-8211

Email: HEStone@cob.org

Pronouns: She / Her / Hers

Please note that all correspondence sent to Council members and all City employees are public records, subject to public disclosure requirements under state law (Public Records Act, RCW 42.56). 

From: Dena Jensen
Sent: Monday, August 1, 2022 6:15 PM
To: MY – mayorsoffice@cob.org <mayorsoffice@cob.org>
Cc: Stone, Hannah E. <hestone@cob.org>
Subject: Re: Second follow up RE: Questions related to BPD officers being advised to delete texts weekly

Dear Ms. Raney:

I appreciate your sending me the information today related to my questions to the Mayor and Council President Stone about BPD officers being advised to delete texts weekly. I will process the details and information with which you provided me and will communicate with officials should I have further questions or concerns regarding this information.

Thank you for your efforts.

Sincerely,

Dena Jensen

Birch Bay, WA

On Monday, August 1, 2022, 12:03:53 PM PDT, MY – mayorsoffice@cob.org <mayorsoffice@cob.org> wrote:

Dear Dena:

Thank you for your e-mail and questions about retention of text messages. I have spoken at length with City Legal and have crafted the following email, with their guidance.  The below excerpt from the Local Government Common Records Retention Schedule states that records communicating “basic/routine short-term information” have no retention value:

pastedGraphic_2.png

Accordingly, in our effort to comply with both applicable retention schedules and the Public Records Act, the applicable City policy (attached here) states that the City does not archive text messaging records and therefore, City staff should not use text messaging to communicate information that has retention value. Text messages should only be used to communicate basic or routine short-term information that: 1. does not document an agency decision or action, 2. is not used as the basis of an agency decision or action, and 3. is not covered by a more specific records series.

The e-mail you referenced from former Deputy Chief Grunhurd is not advice from City legal counsel, nor does it appear that the City Attorney’s Office or the City’s Public Records Officer was included on Deputy Chief Grunhurd’s e-mail.  Nevertheless, his general “tips” appear consistent with City policy and applicable records retention schedules.

Again, thank you for sharing your concerns regarding this matter. The City of Bellingham values transparency and the broader goals of promoting open, accessible government. At the same time, City staff strive to follow applicable retention schedules, which state that records communicating basic/short-term information do not have retention value.

Best,

Brooksana Raney

Executive Assistant to Mayor Fleetwood

City of Bellingham

360-778-8100

mayorsoffice@cob.org

From: Dena Jensen
Sent: Monday, August 1, 2022 11:28 AM
To: MY – mayorsoffice@cob.org <mayorsoffice@cob.org>
Subject: Second follow up RE: Questions related to BPD officers being advised to delete texts weekly

Dear Mayor Fleetwood:

I continue to seek answers to my questions, sent to you in mid-June this year, related to BPD officers being advised to delete texts weekly. 

An issue of local law enforcement accountability again surfaced this past week with the arrest of Ferndale Police Department’s Officer Michael Langton for one count of attempted second-degree child molestation.  Officer Langton has been investigated by Ferndale PD regarding a different issue, and has had numerous complaints and some court cases filed against him, but he has never been held accountable for such charges and claims against him. Related to his recent arrest, the Bellingham Herald reported that Officer Langton was observed to have burned some records and his phone was restored to factory settings before it was seized. 

To me Officer Langton’s history is relevant to many police accountability issues, and the treatment of text messages related to the conduct of public business as public records that should be retained is definitely one of them.

I have included my previous emails inquiring about actions you have taken to address Bellingham Police Department officers being advised in January 2021 to delete their texts weekly according to tips sent out to the department by BPD Deputy Chief Scott Grunhurd. My original June 16, 2022 email with my questions (in bold type) and those tips is at the bottom of this email. I continue to follow up with Council President Stone, as well.

Sincerely, 

Dena Jensen

Birch Bay, WA

From: Dena Jensen

To: mayorsoffice@cob.org <mayorsoffice@cob.org>

Sent: Tuesday, July 19, 2022, 06:30:23 PM PDT

Subject: Follow up RE: Questions related to BPD officers being advised to delete texts weekly

Dear Mayor Fleetwood:

I had sent this email to you last month, back on June 16, 2022 and wanted to follow up to again request a response to my questions in that email. The current national news regarding the potential unauthorized deletion of texts related to the January 6, 2021 insurrection at the U.S. Capitol in Washington D.C. is reminding me of how significant the tips are that were sent out by Bellingham Police Department Deputy Chief Scott Grunhurd (coincidentally in early January 2021.) This is in regard to the importance of text messages related to the conduct of public business being retained as potentially valuable public records.

I am providing a link here to the June 10, 2022 Facebook post by the Washington Coalition for Open Government which I referenced in my June 16 email included below. I am not sure the link I provided in that email was a working link. 

Meanwhile, my questions are bolded in the attached email. I appreciate that you receive many emails that take time to read and answer, but I also look forward to receiving your response as soon as it is possible for you to do so. 

Sincerely, 

Dena Jensen

Birch Bay, WA

From: Dena Jensen

To: mayorsoffice@cob.org <mayorsoffice@cob.org>; Hannah E. Stone <hestone@cob.org>

Cc: rmertzig@cob.org <rmertzig@cob.org>; Kristina Michele <kmichele8543@gmail.com>; Michael W. Lilliquist <mlilliquist@cob.org>; ehwilliams@cob.org <ehwilliams@cob.org>; Hollie A. Huthman <hahuthman@cob.org>; Daniel C. Hammill <dchammill@cob.org>; Lisa A. Anderson <laanderson@cob.org>

Sent: Thursday, June 16, 2022, 06:48:15 PM PDT

Subject: Questions related to BPD officers being advised to delete texts weekly

Dear Mayor Fleetwood and  Bellingham City Council President Stone:

This week, I came across a June 10, 2022 Facebook post by the Washington Coalition for Open Government. (You can click the link to access the post.) This is the opening paragraph of the post: 

“The matter of Seattle officials’ mass deletions of text messages related to the 2020 racial-justice protests just gets curiouser and curiouser. And stinkier and stinkier. When will Governor Jay Inslee order a proper investigation?”

I feel the full post and attached article contain important details for you to read and of which to be aware.  In the case of Seattle officials’ handling of text messages regarding the 2020 racial-justice protests, records requests had been made for which those texts should have been provided. 

I am not trying to say in this email that any Bellingham officials necessarily deleted text messages after public records requests had been made to which they would have been subject. 

What I feel is worthy of concern is the Bellingham Police Department encouraging practices that would have its officers purging emails on a weekly basis so they don’t have to be produced in response to a public records request, should one be submitted that those records could be responsive to.

Related to all of this:

1. I wanted inquire if any type of action has been taken by either of you, or by the Bellingham Police Chief or Deputy Chiefs to express concern, inquire about, and/or address the problematic situation described below? 

2. If not, do you intend to do so soon?

I had written about the following situation on my blog previously in late August of 2021 in this chapter of my review of obstacles to equity related to government actions in response to Camp 210, “Chapter Three: The Police Department – Whatcom Barriers to Equity, a review for 2021 candidates”. I have previously sent links to you for this and other chapters of the review.

In January 15, 2021 Bellingham Police Department Deputy Chief Scott Grunhurd sent a preemptive email to fellow BPD employees advising them to regularly get rid of their text messages so they don’t have to be produced for a pubic records request. 

The email went out to BPD employees two weeks before a sweep of a homeless encampment on Bellingham City Hall lawn, known as Camp 210. 

Here’s an excerpt of Deputy Chief Grunhurd’s email:

“’Tips’ (in no particular order):

1. Assume all of your communications are subject to public disclosure. Is your communication something you want to see in the newspaper and then have to explain why you wrote it?

2. Practice good communications retention. Text messages and voice mails are considered transitory. Generally, there is no expectation or requirement to keep or retain them.

• However, if you do keep them and a request for them is made, you have to produce them. I’m sure you’ve seen the emails from Erin or Brandi.

• If you regularly purge these items, then the records bureau doesn’t have to provide them because they don’t exist (it saves work for them).

• I suppose if there is a text message or voice mail that becomes essential to a case, it can be kept or preserved in a different way.

• A good suggestion is to delete those things at the end of your work week.

3. Don’t assume that because you deleted a text or e-mail that it is gone. It went somewhere, and someone else may have a copy of it in their communications.

4. “Humor” doesn’t belong in your professional work related/based communications.

• You may think a comment is humorous and harmless when you send it. However, it doesn’t mean that others who read it feel the same way (internal members or outside parties).

• “Humor” is a subjective thing, which can make it risky. People perceive things differently.

• Simply put, humor isn’t professional and doesn’t belong in your departmental communications.

• If you didn’t add “humor” in the first place, then you don’t have to, possibly, explain the reasons you put in there to an investigator, prosecutor, defense attorney etc…..

5. Keep your e-mails and voice mail accounts “Cleaned up”. If you are done with it and aren’t required to keep it, get rid of it.

6. Know the difference between reply and reply all in your e-mail responses.

7. If your not sure your communication reads well, have someone else review it prior to sending it.”

You can read the full email at this link: https://noisywatersnw.files.wordpress.com/2021/08/departmental-communications-grundhurd.pdf

Here are two more items to help provide perspective:

1. A City of Bellingham document, titled, “Scenario 2 Notes Attorney Client 1-6-21,” noted that, as of nine days prior to Deputy Chief Grunhurd’s January 15 email, the City was anticipating “legal action to block end of encampment.”

2. Had BPD officers been following Deputy Chief Grunhurd’s tips in 2019, it could have resulted in eliminating evidence relevant to some BPD officers’ involvement in the so-called prank described in The Bellingham Herald article, “Bellingham police officers used man with mental health issues for prank, records show.” In turn, this could have further reduced the potential for police accountability in such a matter.

In the past, I have heard some Bellingham City Council Members and Bellingham Police Department officials express enthusiasm for transparency within their agencies. And yet, to me, it is obvious that encouraging practices to not retain text messages for the purpose of avoiding the need to provide the public with records in connection with the transaction of public business is an obstruction of transparency and defies the spirit of the Public Records Act, if not the letter of it. 

I look forward to your response to my two questions that are bolded and numbered in this email. Thank you.

Sincerely,

Dena Jensen

Birch Bay, WA


This email was sent to the following addresses:

To: MY – mayorsoffice@cob.org <mayorsoffice@cob.org>

Cc: ccmail@cob.org <ccmail@cob.org>; Hannah E. Stone <hestone@cob.org>; kmmartens@cob.org <kmmartens@cob.org>; Michael W. Lilliquist <mlilliquist@cob.org>; ehwilliams@cob.org <ehwilliams@cob.org>; Hollie A. Huthman <hahuthman@cob.org>; Lisa A. Anderson <laanderson@cob.org>; Daniel C. Hammill <dchammill@cob.org>; council@co.whatcom.wa.us <council@co.whatcom.wa.us>; Satpal Sidhu <ssidhu@co.whatcom.wa.us>