State agency employees in Pennsylvania — from the governor’s office staff to front-line workers — routinely are encouraged to pare the numbers of emails they keep, and by doing so, they effectively decide on their own which are public records.
They have that power because deleted emails within the executive branch are backed up by state servers only for five days, the state says.
After that, they are permanently deleted, said Dan Egan, spokesman for the Pennsylvania Office of Administration. The result is that an untold number of emails by thousands of public employees are excluded from legal review by a Right-to-Know officer whenever the public seeks release of materials that might illuminate how government works.
Mr. Egan said employees receive mandatory training in proper records retention practices and noted that deletions help manage unwieldy inboxes and make it easier to find relevant records. He said the vast majority of emails are casual “chatter” and not the kind that state rules say must be preserved as public records.
Even so, some open government advocates are troubled by the practice, asking how even the best-intentioned employees can be sure that a seemingly insignificant note won’t later prove relevant to understanding a state action.
The issue surfaced in recent weeks as Acting Education Department Secretary Carolyn Dumaresq sought to explain why her agency could produce only five emails written in a year’s time by the governor’s special adviser on higher education Ron Tomalis. He resigned two weeks after the Pittsburgh Post-Gazette, using the Right-to-Know Law, reported on his scant email activity, a largely empty work calendar and phone logs averaging barely more than one call a day.
Told of the five-day backup period, open government advocates asked why the state does not preserve employee-deleted emails long-term using archiving systems that other agencies, including local school districts, use.
“You’re leaving it up to the person who created the record to determine whether or not it needs to be archived. That’s a problem,” said Emily Grannis, a legal fellow with the Committee for Freedom of the Press, an Arlington, Va.-based group that provides legal advice and support on issues including government records access. “There’s no check on an employee’s decision, and with that [five-day] time-frame, there’s really no time to catch it” if the initial decision is wrong.
Some said the issue potentially is exacerbated by a state agency practice, outlined by Mr. Egan, of relying on employees to forward what they believe are relevant emails whenever a Right-to-Know request is received, instead of routinely searching servers.
“That’s an amazing amount of discretion to give every public employee who may not have any legal training,” said Melissa Melewsky, media counsel with the Pennsylvania Newspaper Association.
When told the state backs up deleted emails for five days, she replied: “Yikes.”
In a recorded interview with the Post-Gazette before the July 27 story on Mr. Tomalis was published, Ms. Dumaresq said his scant emails might be due to a preference for face-to-face interaction. But after the story appeared, Ms. Dumaresq gave a reporter at Harrisburg TV station WHTM a different explanation, citing department email management practices.
“There’s no email trail for a lot of folks. I couldn’t possibly store all of my email. We delete and cleanse each evening, so that’s why there’s no emails,” she said.
Later, department spokesman Tim Eller said that in fact Ms. Dumaresq was referring only to emails that do not qualify as public records, including those that are “transitory,” defined by the state as having “little or no documentary or evidential value.”
Mr. Tomalis, whose resignation is effective Tuesday, has been unavailable for comment since the story was published.
His work product as special adviser and why he was paid the same $139,542 salary he previously made as state education secretary have become issues in the governor’s race, as have Ms. Dumaresq’s attempts to defend Mr. Tomalis’ work.
But what’s more significant about the controversy is how it has highlighted longtime shortcomings in record retention practices across the commonwealth, said Terry Mutchler, executive director of Pennsylvania’s Office of Open Records.
She said Pennsylvania has strengthened its Right-to-Know Law in recent years but has practices for preserving government records that vary and a 1929 law governing retention that harkens “to the days of giddyap and whoa, before we could even perceive of computers.”
She said those practices need to be revamped.
Records retention problems were cited in June by state Attorney General Kathleen Kane’s office in its report examining the criminal investigation of former Penn State University assistant football coach Jerry Sandusky, now in prison for sexually assaulting children.
It noted that in 2011, the attorney general’s office, under acting Attorney General William H. Ryan Jr., adopted an email retention policy that called for deleting emails more than six months old, except those retained by a recipient or sender.
That was a change from the previous policy of keeping all email for five years, and according to the report, Mr. Ryan said it was made in response to concerns by information technology staff about the cost to maintain so many emails.
The report said the change hampered the review since almost all emails sent and received during the investigation of Sandusky had been deleted before the review began. What’s more, storage space on which deleted emails were kept was quickly overwritten with new material, making it difficult to recover those emails even with forensic techniques.
The agency eventually did recover those deleted emails after a painstaking process. The office has since changed the policy to retain emails for two years.
Mr. Egan said his office manages servers and provides information technology support for various state agencies, excluding the courts and row offices, which are handled separately.
Upon getting Right-to-Know requests, agency officials “don’t resort to doing searches or scans” of servers unless an employee is unavailable or isn’t sure what documents should be forwarded for review. He said each worker receives about 80 minutes of electronic and general record management instruction, which they can repeat, and can always consult others with questions.
“We could keep it for longer,” he said of deleted email. “But there would be an additional expense for storage.”
State officials say they carefully maintain hard-copy and electronic documents deemed to be public records. The range varies and in some cases can be 10 years, Mr. Egan said.
It’s clear that many emails on state employee computers have survived long term, said Ms. Mutchler, noting that emails years old have been turned over in various Right-to-Know cases.
But employee-deleted emails can disappear quickly.
In fact, if Education Department employees delete email daily as Ms. Dumaresq said, a correspondence written on a Monday could be off state servers in less than a week. That’s shorter than the five business-day response time required when agencies receive a Right-to-Know request, Ms. Melewsky said.
Pennsylvania’s 500 school districts have varied retention policies, but typically emails — even deleted ones — are preserved for months or longer, said Jim Buckheit, executive director of the Pennsylvania School Administrators Association.
He said preserving them helps protect districts against liability, including misconduct by employees, and helps in responding to records requests.
Told of Pennsylvania’s five-day window for deleted emails, he said, “That seems a rather short length of time.”
In 2010, the Mt. Lebanon School District invested $10,000 in an archiving appliance that enables the district to capture every email — about 50,000 a day during the school year — before it enters and after it leaves school computers, said Chris Stengel, the district’s technology director.
It makes a copy of every incoming and sent email and saves it permanently “whether or not the employee keeps it,” he said.
It is useful for not only responding to Right-to-Know requests but also to ensure legal compliance and avoid liability. He said the solicitor is the ultimate arbiter of what documents, including emails, the district deems are public records. The system, which he said costs $3,500 a year to maintain, enables employees to manage their inboxes without worrying about inadvertently destroying a public record.
Attorney Matthew Hoffman, who represents several Pittsburgh-area school districts, said those he spoke with retain even their deleted emails a year or longer for legal and liability protection purposes. As such, they would be included in any Right-to-Know reviews.
Mr. Egan and others said it makes no sense to keep vast amounts of email containing spam and and other missives clearly unrelated to work.
Ms. Grannis agreed that many items can go without being held for legal review. But she said even a note about a lunch gathering can be significant if those attending violate the Sunshine Law covering open meetings. She said the state should err on the side of longer retention of email.
“It should be available to the public for longer than five days,” she said.
Bill Schackner: firstname.lastname@example.org, 412-263-1977 and on Twitter: @BschacknerPG.