Chattanooga Mayor Andy Berke has an odd way of not paying attention to things.
In an emailed statement issued Friday afternoon, Berke said he doesn’t "pay attention to blatantly partisan attacks"—yet proceeded to scoff at the local GOP party chairman’s call for him to resign over allegations Berke used an encrypted messaging app to evade public records laws.
Berke’s email was issued in response to a news release sent out Friday morning by Hamilton County Republican Party Chairman Tony Sanders in which Sanders accused Berke and other city employees of using the WhatsApp encrypted messaging app to bypass public records laws. Instead of using his email to directly counter Sanders’ charges, however, Berke chose instead to tout his office’s compliance with open records requests and opine that "in 2016, public servants are expected to communicate with citizens over lots of channels—Facebook, Twitter, email, Instagram, text message and others."
The exchange between Berke and Sanders came on the heels of multiple local media reports about questionable use of WhatsApp by city employees. Berke’s evasive responses—to both Sanders and the media—not only did little to clarify exactly what’s up with the use of WhatsApp, they also raised questions about just how committed the mayor remains to his original pledge of transparency.
When Berke campaigned for mayor in 2012, government accountability was one of the four key pillars of his platform. Since taking office, the mayor has boldly declared that "open data is truly a value of our government" and has accepted nationwide kudos for Chattanooga’s efforts to be "at the forefront of transparency and performance among cities." In May 2014, Berke signed an executive order establishing an open data policy for the city—a policy that has led to the creation of an open data portal, as well as Chattanooga’s participation in the White House’s Police Data Initiative.
Yet for all the city’s growing efforts to proactively provide Chattanoogans with mountains of data, the Berke administration has drawn growing criticism across the city for its apparent selective transparency regarding the day-to-day communication, decisions and actions of those inside City Hall. The latest red flag came last week when multiple media outlets reported on the questionable use of WhatsApp by Berke and other city personnel.
Used by more than 1 billion people in 180 countries, WhatsApp is an encrypted messaging app that limits the reading or listening of messages and calls to those sending and receiving them. Unlike, say, emails sent via government email servers, no messages are stored on WhatsApp servers.
As Nooga.com previously reported, the issue of encrypted communication came to light following an alleged domestic incident involving Berke Senior Adviser Lacie Stone and her husband, Bobby Stone. The incident prompted an ongoing Tennessee Bureau of Investigation probe and accusations of an affair between Stone and Berke, as well as claims that WhatsApp use was widespread, at least within the mayor's inner circle.
Records requests by Nooga.com show that at least one employee may have violated the city's newly adopted policy by not retaining records of WhatsApp communications, and inconsistent responses by members of the Berke administration—including Berke—when asked about their use of the app not only raise questions about the city’s open records and records retention policies, but also raise questions about transparency among city employees.
Nooga.com spent the past two months requesting all WhatsApp communication from more than 30 key city leaders, including Berke, his appointed staff, department heads and City Council members. The request was for April 1 through June 30.
Employees were asked, "Can you please confirm you do not use the app or send the city records from the app?" Most said they don’t use WhatsApp at all or don’t use it to conduct city business. Others said they don’t have the app or don’t even know what it is.
Only two leaders, City Attorney Wade Hinton and Public Library Executive Director Corinne Hill, turned over WhatsApp correspondence that included city business, and both sets of messages they provided contained information that conflicted with earlier statements.
Hill initially said she only used the app for personal matters, but later turned over WhatsApp correspondence that included city business.
While Justin Wilkins, Berke's deputy chief of staff, initially responded to the request by saying, "I do not use the app," Hinton's records show a conversation between him and Wilkins. When asked about the inconsistency, an official said that Wilkins had used WhatsApp but doesn't anymore.
Furthermore, while Berke initially told Nooga.com that he had "no information responsive to this request," days later, he told the Times Free Press that he has, in fact, "used WhatsApp in the past," but does not "currently use WhatsApp to communicate" with his staff.
"We communicated with it and sent messages that have government business on them, and comply with our [open records] responsibilities, just like our text messages," Berke said.
Despite disclosing his use of WhatsApp, Berke had no explanation as to why he or city employees used encrypted messaging versus standard text messaging, nor any explanation as to why he stopped using it. That didn’t stop him from trying to paint Chattanooga’s communication policies in a good light compared to other cities, however.
"As to my understanding, most cities have no policy about text messages and electronic communication," Berke said. "We've put forth a policy that says exactly what [city employees] have to do. So in most places, you could delete the next day. We don't do that. We try to go above and beyond by putting forth a policy that says what we need to do."
But as the Times Free Press pointed out, the city of Knoxville, for example, has no records retention policy concerning text messaging because, as an official from that mayor’s office explained, Knoxville’s "administrative rules do not authorize text messaging as a vehicle to conduct city business."
"We think city business should use a venue easily archived and searchable," said Jesse Mayshark, communications manager for Mayor Madeline Rogero's administration.
No oversight, no answers
Chattanooga's records and information retention policy, adopted in December, only calls for chat messages to be kept for 60 days. (Emails, on the other hand, are kept for five years.) And while Hinton says the policy dictates that employees download content to city servers if it falls into a certain category—like a business contract, or information regarding changes or requests concerning the contract—there is currently no oversight to ensure city employees follow the rules. (Hinton said he hasn’t received information about any city employees violating the current rules.)
Hinton said the city is currently in the process of implementing a new records retention policy, but he also said the city hasn't gotten to the point of focusing on newer technologies like WhatsApp. And when will that happen? Add that to this list of questions related to this whole thing:
—Why did Berke and other city employees use WhatsApp in the first place—and why did they stop?
—Has any city employee deleted any WhatsApp communication that the public has a right to see?
—Was WhatsApp used to purposely subvert any open records requests?
—Is Berke really surprised that people would ask these questions?
—Will we ever get answers?
Former Chattanooga Pulse Editor Bill Colrus writes about (in no particular order) local news, culture and media. You can find him on Facebook, follow him on Twitter or contact him at firstname.lastname@example.org. The opinions expressed in this column belong solely to the author, not Nooga.com or its employees.