The Pittsburgh Post-Gazette, joined by a half-dozen other news outlets, is seeking intervention by Pennsylvania’s highest court to halt a state email deletion practice the newspaper says lets commonwealth agencies destroy public records at will.
An application for extraordinary relief was filed by the newspaper’s lawyers with the Pennsylvania Supreme Court late Tuesday. It asks that the court take jurisdiction over a September lawsuit now before Commonwealth Court — a case pitting the intent of Pennsylvania’s Right-to-Know law against the state’s ability under the records retention statute and policy to maintain records any way it wishes.
In their filing, attorneys Frederick Frank and Zachary Gordon of the firm Frank, Gale, Bails Murcko & Pocrass called the matter one “of urgent statewide importance” and said the court can justly take jurisdiction.
At issue is a practice by 47 agencies across the executive branch of letting employees decide for themselves which emails they should keep and which can be discarded as “transitory.” Once discarded, they are permanently deleted from state servers after five days and never can be recovered for purposes of responding to a Right-to-Know request from the public, even if the employee improperly deleted an email that was, in fact, a public record.
Each week, almost five million emails are generated within the executive branch by 80,000 employees in areas from law enforcement to finance to public health.
The Sept. 15 lawsuit, which says the practice violates due process rights of citizens seeking release of documents under the Right-to-Know Law, was filed in the final months of the Corbett administration. The newspapers had hoped incoming Gov. Tom Wolf, sworn into office Jan. 20, would end the practice, and, in fact, lawyers for his administration that month sought a legal extension to brief the new governor, an act suggesting a policy change, Tuesday’s application states.
“On review, however, the Wolf administration apparently has embraced the previous administration’s position,” the application reads.
Mr. Wolf’s administration, in a March 23 brief in the case, “asserts that they have the right to destroy public records without regard to the (Right-to-Know Law), and that they plan to continue with the same email deletion policy,” the application states.
“Without this court’s immediate intervention, public records and, in particular emails, responsive to pending (Right-to-Know requests) will continue to be permanently lost,’’ the application reads.
A spokesman for the governor, Jeffrey Sheridan, said the administration’s counsel will be responding to the filing, and ‘‘the Wolf Administration is currently reviewing and seeking to improve the state’s email preservation practices.”
Joining PG Publishing and the Post-Gazette in seeking relief are Texas-New Mexico Partnership, publisher of York Daily Record/Sunday News, Chambersburg Public Opinion, The (Hanover) Evening Sun and Lebanon Daily News; PA Media Group, publisher of The Patriot News in Harrisburg and PennLive web site in Mechanicsburg; and LNP Media Group Inc., publisher of newspapers in Lancaster.
The Post-Gazette on Aug. 24 reported the executive branch’s email practices, the five-day permanent deletions, as well as concerns of open-government advocates. Emails became an issue in July as the Education Department sought to explain why just five emails apparently had been authored in a year by Mr. Corbett’s then higher education adviser, Ron Tomalis.
He resigned about two weeks after a Post-Gazette report raised questions about his work product.
Named as defendants in the September lawsuit were the Governor’s Office of Administration, which maintains the executive branch servers, and the Department of Education. It asked that the practice be stopped and that deleted emails be preserved on servers for two years.
But both agencies and Commonwealth Court in a preliminary, single-judge ruling on Oct. 31, said that section 507 of the Right-to-Know law “gives commonwealth agencies the power to create any record retention policy they wish, even if the policy results in destruction of all public records, thereby shielding the destroyed records from disclosure and violating both the letter and the spirit of (the Right-to-Know law),” Tuesday’s application states.
The agencies further asserted in separate pleadings that Right-to-Know “does not require the commonwealth to keep any records” and agencies “have no duty” under that law “to retain records for any period of time,” according to Tuesday’s application.
Section 507 of the law states: “Nothing in this act shall be construed to modify, rescind or supercede any record retention policy or disposition schedule of an agency established by law, regulation, policy or other directive.”
Lawyers for the newspapers assert it is “illogical” that the General Assembly enacted section 507 “to provide agencies with the license to destroy documents” otherwise public under Right-to-Know. Their filing says there is legal precedent that the Right-to-Know Law correctly governs access, but five-day deletions mean those records can be destroyed even before an agency responds to a Right-to-Know request.
First Published: April 8, 2015, 4:19 a.m.
