The Pittsburgh Post-Gazette is asking the Pennsylvania Supreme Court to consider this question: How can citizens judge the honesty or effectiveness of public officials if they quickly destroy electronic records of their work?
Last week, a Pennsylvania appeals court dismissed a lawsuit brought by the Post-Gazette over the length of time emails sent or received by state employees must be stored before being permanently deleted.
Currently, those emails are wiped clean after just five days, with discretion of what’s worth keeping for longer periods left in the hands of each individual employee.
“We believe in openness,” says David Shribman, the Post-Gazette’s executive editor. “We believe that people who do the people’s work, that that work should be subject to the scrutiny of the people who pay their salaries.”
The dispute stems from an open records request made by the Post-Gazette to the Pennsylvania Department of Education. The newspaper wanted information on Ron Tomalis, a former special adviser on higher education with a six-figure salary.
What they got back was only a handful of emails. The rest, it turned out, had been deleted by Tomalis, who resigned from his post in August.
The Post-Gazette had asked the courts to put a two-year hold on all state employee emails. Lawyers for the paper say they will file an appeal to the state Supreme Court.
A balancing act
While there’s a long, colorful list of scandals exposed through the release of emails, Shribman said the public’s right to know isn’t just about uncovering the next Bridgegate or Benghazi.
“One doesn’t need to find something illegal or unethical in emails to realize that what’s in those emails is itself the public’s business,” he said.
Under Pennsylvania’s current system, each employee is supposed to determine which records are valuable to the public record, and therefore should be saved. Other electronic communications deemed transitory are deleted and, under executive branch policy, deleted from computer servers after five days.
The net effect is that each worker is the gatekeeper of transparent government.
Terry Mutchler, a lawyer and former director of the state’s Office of Open Records, said while the commonwealth’s Right-to-Know law is fairly modern, a separate code that covers document retention is sorely in need off an update.
“It was written in 1929, and if you take a snapshot of 1929, you are dealing with Al Capone and Chicago — when blackberries were still fruit on a vine — and not the technology-driven place that we are today,” she said.
Neighboring states have taken different approaches to email transparency. In New York, Gov. Andrew Cuomo was recently forced to rescind a 90-day deletion policy and is writing new rules. In New Jersey, all emails are held for seven years, with some subject to longer hold times.
In Delaware, it’s one year, whether or not the employee clicks delete.
“Cost is always a factor, and email can take a considerable amount of storage to retain for a long period of time,” said Michael Hojnicki with Delaware’s Department of Technology and Innovation.
The City of Philadelphia also cited cost of electronic storage concerning its 50-day deletion policy.
Pennsylvania’s 80,000 state employees reportedly send and receive 5 million emails per week.
Gov. Tom Wolf’s administration won’t comment on retention rules until the Post-Gazette’s lawsuit is closed.
Erik Arneson, the current director of Pennsylvania’s Office of Open Records, said he’s seen plenty of information requests denied due to deleted emails. But he adds it’s unrealistic to expect these things to be saved forever.
“That’s an untenable position,” said Arneson. “At the same time, having no email ever saved for more than a minute of two, at the other extreme, that’s untenable as well. The answer is obviously somewhere in the middle.”